Judge Joel R Wohlfeil, Case Number: 37-2023-00037230-CU-EN-CTL, Date: 2024-05-23 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00037230-CU-EN-CTL, Date: 2024-05-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 22, 2024

05/23/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Enforcement Motion Hearing (Civil) 37-2023-00037230-CU-EN-CTL DONNE RECOVERY LLC VS MITCHELL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 03/19/2024

The Motion (ROA # 31, 38, 42) of Assignee of Record - Judgment Creditor, Donne Recovery, LLC ('Donne') to issue an order to compel the attendance and set the scope of the third-party examination of Gary LoCurto, on behalf of Singleton Schreiber, LLP ('Witness'), is GRANTED IN PART and DENIED IN PART.

The examination will proceed. As discussed below, although Donne is permitted some latitude in the information it seeks, the scope of the questioning will be limited.

The Enforcement of Judgments Law ('EJL') is a detailed statutory scheme found at Code of Civil Procedure sections 680.101 through 724.260, and governs the manner and extent to which civil judgments are enforceable. Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal. App. 4th 540, 546.

Examination proceedings (also called proceedings in aid of execution or supplementary proceedings) are one of several special procedures designed to aid judgment creditors. Id. They permit the judgment creditor to examine the judgment debtor, or third persons who have property of, or are indebted to, the judgment debtor in order to discover property and apply it toward the satisfaction of the money judgment. Id. at 546, 547 (citing Code Civ. Proc. 708.110 - 708.205).

Section 708.120 provides a tool that allows a judgment creditor to find property or money that is owed to the judgment debtor. Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal. App. 5th 509, 514.

To this end, it allows the judgment creditor to obtain an order to examine a third party who it believes possesses the judgment debtor's property or owes the judgment debtor a debt. Id. The statute requires the third party to answer questions regarding the subject property or debt. Id. Section 708.120 does not allow for a more expansive examination. Id. Under section 708.120, a creditor is entitled to examine a third party if it convinces the court that the third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor. Finance Holding Co. LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal. App. 5th 663, 682.

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3118728 4 CASE NUMBER: CASE TITLE: DONNE RECOVERY LLC VS MITCHELL [IMAGED] 37-2023-00037230-CU-EN-CTL If this showing is made, the court shall order the third person to appear to answer concerning the property or debt. Id. Section 708.130(a) states: 'Witnesses may be required to appear and testify before the court or referee in an examination proceeding under this article in the same manner as upon the trial of an issue.' This section 'has a broader reach.' Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate, supra at 514.

This subsection allows any person with information leading to the enforcement of the judgment, to be subpoenaed to testify in an examination proceeding in the same manner as a trial witness. Id. The opinion in Yolanda's, Inc. held as follows: 'Here we conclude, among other things, that the scope of questions asked by a judgment creditor in a third party judgment debtor examination may include the location of assets no longer in the possession of the third party.' In Finance Holding Co. LLC v. The American Institute of Certified Tax Coaches, Inc., the opinion states: Section 708.130 provides generally that witnesses in a judgment debtor examination may appear and testify 'in the same manner as upon the trial of an issue.' (� 708.130, subd. (a)). Finance argues that this code section allowed it to conduct the type of broad discovery permitted under prejudgment discovery rules. We disagree. Under settled statutory interpretation principles, section 708.130 does not expand a court's powers to order third party discovery under section 708.120 .... Otherwise, there would have been no need for section 708.120. Because section 708.130 is a general statute pertaining to the conduct of a debtor's examination, and section 708.120 provides specific rules regarding the scope of discovery against a third party in judgment enforcement proceedings, section 708.120 governs the court's discovery order here ....' Id. at 683 (emphasis added, internal case citations omitted).

Given this authority, Donne is permitted to question the third-party witness regarding the existence, amount and location of property and assets that can be used to satisfy the outstanding judgment. This would necessarily include information related to the amount and distribution of the settlement proceeds in the fire claim for the 13382 Sulphur Mountain Road home. Donne can also question this witness regarding the potential existence of any other presently existing assets that could be used to satisfy the judgment.

On the other hand, a potential claim against attorney LoCurto and Singleton Schreiber, LLP for professional malpractice based on their representation of the judgment debtors in the fire claim is not, at present, property or an asset that can be the subject of questioning. This third party examination cannot be used to prove-up a future claim for attorney malpractice. Questions solely related to the potential future claim are not relevant to this action, which is confined to collection on the judgment.

Donne will be given wide latitude with respect to an examination regarding the existence, amount and location of property and assets that can be used to satisfy the outstanding judgment. Questions relevant to this topic must be answered even if this examination also overlaps into non-relevant topics. However, questions solely related to the potential malpractice claim are not appropriate.

Finally, the Court cannot make a determination as to whether the attorney-work product privilege bars any specific questions. Instead, Mr. LoCurto can assert this privilege in response to specific questions and Donne can thereafter seek a court order compelling the examinee to respond, subject to potential punishment for contempt. See Ahart, Cal. Prac. Guide: Enforcing Judgments & Debts (The Rutter Group 2023) at � 6:1335.10. The Court cannot rule on this privilege in a vacuum. Whether this privilege has been waived, and the extent of this waiver will be addressed via this future procedure, if necessary.

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