Judge: Michael P. Linfield, Case: 19STCV41520, Date: 2023-04-19 Tentative Ruling

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Case Number: 19STCV41520    Hearing Date: April 19, 2023    Dept: 34

SUBJECT:         Application and Order for Appearance and Examination — Enforcement of Judgment against Third Person

Moving Party:  Judgment Creditor Westlake Village Property, L.P.

Resp. Party:    None

Judgment Creditor’s Application and Order for Appearance and Examination — Enforcement of Judgment against Third Party Ronald Richards is GRANTED.

At the time the Order is served on the third person, Judgment Creditor shall make sure to follow the requirements set out in Code of Civil Procedure, section 708.120, subdivision (f).

Judgment Creditor shall file proof of service no less than 72 hours in advance of the next hearing.

BACKGROUND:

On February 15, 2019, Plaintiff Westlake Village Property, L.P. filed its Complaint against Defendants Dr. Leevil, LLC and D-Day Capital, LLC on causes of action for breach of written contract, accounting, and common count.

On September 29, 2021, pursuant to Plaintiff’s oral request, the Court dismissed with prejudice this matter due to the Parties’ settlement. The Court retained jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure section 664.6.

On December 5, 2022, the Court granted Plaintiff’s Ex Parte Application to Enforce Settlement Agreement.

On January 2, 2023, the Court entered judgment in favor of Plaintiff Westlake Village Property, L.P. and against Defendant Dr. Leevil, LLC in the amount of $557,643.84 and against Defendant D-Day Capital, LLC in the amount of $412,602.74, with attorneys’ fees and costs against both Defendants, jointly and severally, in the amount of $8,998.20, and with interest accruing on the Judgment Amounts at the rate of 10% per year from the date of the entry of the judgment until the Judgment Amounts plus accrued interest are paid in full.

On March 10, 2023, Plaintiff (now Judgment Creditor) filed its Application and Order for Appearance and Examination — Enforcement of Judgment against Third Person Ronald Richards. Judgment Creditor concurrently filed Declaration of Scott L. Satkin.

No opposition or other response has been filed.

ANALYSIS:

I.           Legal Standard

“Upon ex parte application by a judgment creditor who has a money judgment and proof by the judgment creditor by affidavit or otherwise to the satisfaction of the proper court that a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars ($250), the court shall make an order directing the third person to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to answer concerning such property or debt. The affidavit in support of the judgment creditor’s application may be based on the affiant’s information and belief.” (Code Civ. Proc., § 708.120, subd. (a).)

“Not less than 10 days prior to the date set for the examination, a copy of the order shall be:

(1)       “Served personally on the third person.

(2)       “Served personally or by mail on the judgment debtor.”

(Code Civ. Proc., § 708.120, subd. (b)(1)–(2).)

“An order made pursuant to subdivision (a) shall contain the following statements in 14-point boldface type if printed or in capital letters if typed:

(1)       “‘NOTICE TO PERSON SERVED. If you fail to appear at the time and place specified in this order, you may be subject to arrest and punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney’s fees incurred by the judgment creditor in this proceeding.’

(2)       “‘NOTICE TO JUDGMENT DEBTOR. The person in whose favor the judgment was entered in this action claims that the person to be examined pursuant to this order has possession or control of property which is yours or owes you a debt. This property or debt is as follows: (Description of property or debt).

“If you claim that all or any portion of this property or debt is exempt from enforcement of the money judgment, you must file your exemption claim in writing with the court and personally serve a copy on the judgment creditor not later than three days before the date set for the examination. You must appear at the time and place set for this examination to establish your claim of exemption or your exemption may be waived.’”

(Code Civ. Proc., § 708.120, subd. (e)(1)–(2).)

“An order made pursuant to subdivision (a) is not effective unless, at the time it is served on the third person, the person serving the order tenders to the third person fees for the mileage necessary to be traveled from the third person’s residence to the place of examination. The mileage fees shall be in the same amount generally provided for witnesses when legally required to attend civil proceedings in the court where the examination proceeding is to be conducted.” (Code Civ. Proc., § 708.120, subd. (f).)

II.        Discussion

Judgment Creditor applies for an order for Third Party Ronald Richards to appear for examination. (Application, Items 1.c., 4, 5.b.) The Application form used is Judicial Council Form AT-138/EJ-125, and it includes the statutorily-required notices. (Code Civ. Proc., § 708.120, subd. (e)(1)–(2).)

Judgment Creditor explains in its Application that “[b]oth of the judgment debtors in this case are limited liability corporations, and the person to be examined under this order is a manager and/or member [of both] the judgment debtors, and therefore has control of the judgment debtors’ property.” (Application, p. 2.) Judgment Creditor further provides proof of its allegation by providing filings Defendants (now Judgment Debtors) filed with the California Secretary of State, which are judicially noticeable and of which the Court takes judicial notice. (Decl. Satkin, Exs. A, B.)

III.     Conclusion

Judgment Creditor’s Application and Order for Appearance and Examination — Enforcement of Judgment against Third Party Ronald Richards is GRANTED.

At the time the Order is served on the third person, Judgment Creditor shall make sure to follow the requirements set out in Code of Civil Procedure, section 708.120, subdivision (f).

Judgment Creditor shall file proof of service no less than 72 hours in advance of the next hearing.