Judge: Mark H. Epstein, Case: 19SMCV02046, Date: 2022-10-24 Tentative Ruling

Case Number: 19SMCV02046    Hearing Date: October 24, 2022    Dept: R

This is a continuation of an ex parte application for seizure in a private home.  At the ex parte hearing, the Court asked the parties to reach an agreement that Witzer (whose home and property are at issue) would not move, sell, encumber, or hypothecate the property that was specifically described in the application.  Although no stipulation was submitted, the Court assumes that this is because the parties were able to reach an accord.

One major issue here is that Witzer himself does not appear to be a judgment debtor.  If that is the case, it is hard to see how plaintiff can use judgment collection statutes to seize property.  The Court will inquire about this.  It could be that Witzer is a judgment debtor, or it could be that there is some other basis.  It does seem that the parties agree that there is no impediment to the requested order by virtue of the law firm’s bankruptcy, but that is not a concession by Witzer that the writ ought to issue.

Right now, the Court is reluctant to move on an ex parte basis.  Among other things, the Court seems to recall directing that notice be given to the bankruptcy trustee.  The Court sees no proof of such service.  Further, seizure is a dramatic remedy.  Among other things, it requires the sheriff to take possession of works of fine art and keep them safe, which requires special handling.

The Court is inclined to enter an order maintaining the status quo pending a hearing on the merits to be held in the regular course.  A temporary protective order may be a good way to do that—it is a procedure used where there is a pre-judgment writ of attachment sought, for example.  But a TRO will do as well.