Judge: Michael P. Linfield, Case: 22STCV00110, Date: 2022-10-28 Tentative Ruling
Case Number: 22STCV00110 Hearing Date: October 28, 2022 Dept: 34
SUBJECT: Application for Order of Appearance and
Examination
Moving Party: Judgment Creditor Euler Hermes North America
Resp. Party: None
The application
for order of appearance and examination is DENIED.
BACKGROUND:
On July 12, 2022, the
Court entered default judgment for Plaintiff (now Judgement Creditor) and
against Defendant (now Judgment Debtor).
On July 15, 2022,
Judgment Creditor filed its Application and Order for Appearance and
Examination against Judgment Debtor.
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 Judgment Debtor to appear for examination. (Application,
¶¶ 1, 4, 5.a.)
There is no evidence that Judgment Debtor was
properly served because no proof of service relating to Judgment Debtor has
been attached to the application or filed with the Court. (Code Civ. Proc., §
708.120, subd. (b).) Further, in the “Notice to Judgment Debtor” section of the
application, Judgment Creditor fails to identify the property or debt that
Judgment Debtor has possession or control over. (Code Civ. Proc., § 708.120,
subd. (e)(2).)
The Court DENIES Judgment Creditor’s
application for order of appearance and examination.
III.
Conclusion
The Court DENIES Judgment Creditor’s
application for order of appearance and examination.