Judge: Michael P. Linfield, Case: 22STCP04223, Date: 2023-02-02 Tentative Ruling
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Case Number: 22STCP04223 Hearing Date: February 2, 2023 Dept: 34
SUBJECT: Application and Order for Appearance and Examination — Enforcement of Judgment (Third Person)
Moving Party: Judgment Creditor Nextwave Enterprises, LLC
Resp. Party: None
Judgment Creditor’s application and order for appearance and examination is GRANTED.
Judgment Creditor shall file proof of service no less than 72 hours in advance of the next hearing.
On November 28, 2022, Judgment Creditor Nextwave Enterprises, LLC filed its Abstract of Judgment against Judgment Debtor Blueberry Solutions, Inc. Judgment Creditor concurrently filed Declaration of Shelley M. Gould.
On December 5, 2022, Judgment Creditor filed its Application and Order for Appearance and Examination — Enforcement of Judgment (Third Person). Judgment Creditor concurrently filed Declaration of Shelley M. Gould.
ANALYSIS:
I. Legal Standard
Code of Civil Procedure section 708.120, subdivision (a) provides:
“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.”
“Not less than 10 days prior to the date set for examination, a copy of the order shall be: (1) Served personally to the third person[;] (2) Served personally or by mail on the judgment debtor.” (Code Civ. Proc., § 708.120, subd. (b).)
“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:
. . .
(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)(2).)
II. Discussion
Judgment Creditor applies for an order for Third Party Anna Flores to appear for examination. (Application, Items 1.b., 4, 5.b.) The Declaration of Shelley M. Gould describes at length why Third Party is someone who would have possession of control of Judgment Debtor’s property. (Decl. Gould, ¶¶ 10–12.)
Judgment Creditor has made a satisfactory showing that a third person has 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.
III. Conclusion
Judgment Creditor’s application and order for appearance and examination is GRANTED.
Judgment Creditor shall file proof of service no less than 72 hours in advance of the judgment debtor’s hearing.