Judge: Michael P. Linfield, Case: 21STCV32507, Date: 2023-06-20 Tentative Ruling
Case Number: 21STCV32507 Hearing Date: June 20, 2023 Dept: 34
SUBJECT: Application
and Order for Appearance and Examination — Enforcement of Judgment against
Third Person Victor Morales for PP Retail USA, LLC
Moving Party: Judgment
Creditor Damiani USA Corporation
Resp. Party: None
SUBJECT: Application
and Order for Appearance and Examination — Enforcement of Judgment against
Third Person Mark Tronstein for Rodeo Drive Associates, LLC
Moving Party: Judgment
Creditor Damiani USA Corporation
Resp. Party: None
Judgment Creditor’s Application and Order for Appearance and
Examination — Enforcement of Judgment against Third Person Victor Morales for
PP Retail USA, LLC is GRANTED.
Judgment Creditor’s Application and Order for Appearance and
Examination — Enforcement of Judgment against Third Person Mark Tronstein for
Rodeo Drive Associates, LLC is GRANTED.
At the time the Orders are served on the Third Persons,
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 proofs of service no less than
72 hours in advance of the next hearing.
BACKGROUND:
On September
2, 2021, Plaintiff Damiani USA Corporation filed its Complaint against
Defendants PP North America US, Inc., Philipp Plein Americas, Inc., and PP
North America USA, Inc. on causes of action of breach of lease and alter ego.
On April 20,
2022, the Court entered judgment in favor of Plaintiff (now Judgment Creditor)
and against Defendants (now Judgment Debtors) in the amount of $301,897.41.
On June 6,
2023, Judgment Creditor filed two AT-138/EJ-125s, Application and Order for
Appearance and Examination — Enforcement of Judgment against Third Persons. The
first is in regard to Victor Morales for PP Retail USA, LLC and the second is
in regard to Mark Tronstein for Rodeo Drive Associates, LLC. For each of these
Third Persons, Judgment Creditor filed an Affidavit of Armen Manasserian.
No
oppositions or other responses have 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 orders for Third Persons Victor Morales (for PP Retail USA, LLC)
and Mark Tronstein (for Rodeo Drive Associates, LLC) to appear for examination.
(Applications, Items 1.b., 4, 5.b.) The Application forms used are Judicial
Council Form AT-138/EJ-125, and they include the statutorily-required notices.
(Code Civ. Proc., § 708.120, subd. (e)(1)–(2).)
Judgment Creditor
lists the following property that the Third Persons to be examined under this
order have possession or control of: money, real property, and personal
property. (Applications, p. 2.) Judgment Creditor claims that it recently
learned that Third Party PP Retail USA, LLC is a subsidiary of Judgment Debtor
and that Rodeo Drive Associates, LLC is the owner of a store that Judgment
Debtor operates. (Affidavits, p. 2.) Among other things, Judgment Creditor’s
Counsel declares: (1) what steps were taken to discover this information; and
(2) the information itself, including information filed with the California
Secretary of State. (Affidavits, pp. 7–9.)
Judgment Creditor has made a satisfactory showing that the
Third Parties have 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 GRANTS Judgment Creditor’s Application and Order
for Appearance and Examination — Enforcement of Judgment against Third Person
Victor Morales for PP Retail USA, LLC.
The Court GRANTS Judgment Creditor’s Application and Order
for Appearance and Examination — Enforcement of Judgment against Third Person
Mark Tronstein for Rodeo Drive Associates, LLC.
At the time the Orders are served on the Third Persons,
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 proofs of service no less than
72 hours in advance of the next hearing.
III.
Conclusion
Judgment Creditor’s Application and Order for Appearance and
Examination — Enforcement of Judgment against Third Person Victor Morales for
PP Retail USA, LLC is GRANTED.
Judgment Creditor’s Application and Order for Appearance and
Examination — Enforcement of Judgment against Third Person Mark Tronstein for
Rodeo Drive Associates, LLC is GRANTED.
At the time the Orders are served on the Third Persons,
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 proofs of service no less than
72 hours in advance of the next hearing.