Judge: Michael P. Linfield, Case: BC721862, Date: 2023-10-27 Tentative Ruling
Case Number: BC721862 Hearing Date: October 27, 2023 Dept: 34
SUBJECT: Application
and Order for Appearance and Examination — Enforcement of Judgment Against
Third Person
Moving
Party: Ramona
Featherby
Resp.
Party: None
TENTATIVE RULING:
Ramona Featherby’s Application and Order for Appearance and Examination
— Enforcement of Judgment against Third Person Jose Avilez is GRANTED.
At the time the Order is served on the Third Person, Judgment
Creditor shall ensure that the requirements set out in Code of Civil Procedure,
section 708.120, subdivision (f) are followed.
Ramona Featherby shall file proof of service of the Third
Person no less than 72 hours in advance of the next hearing.
BACKGROUND:
On September 17, 2018, Glenoaks Rx, Inc. and Serj
Soukaz Markarian filed their Complaint against Maung Ye Htut Loo.
On November 13, 2018, Maung Ye Htut Loo filed his
Cross-Complaint against Serj Soukaz Markarian and Arevik Soukazian.
On July 27, 2020, by request of Maung Ye Htut Loo,
the Clerk’s Office dismissed with prejudice the Cross-Complaint only as to
Arevik Soukazian.
From June 15 to 18, 2021, the Court held a non-jury
trial in this matter. After making specific findings on the causes of action
tried, the Court found that Maung Ye Htut Loo was the prevailing party.
On July 16, 2021, the Court entered Judgment in this
matter.
On November 4, 2021, the Court awarded Maung Ye Htut
Look $230,000.00 in attorney’s fees.
On December 6, 2021, the Court entered Amended
Judgment in this matter.
On February 1, 2022, the Court entered Revised
Judgment in this matter.
On August 30, 2023, Maung Ye Htut Loo filed his
Acknowledgment of Assignment of Judgment, which assigned the Revised Judgment
to Ramona Featherby.
On September 5, 2023, Ramona Featherby filed
Application and Order for Appearance and Examination — Enforcement of Judgment
Against Third Person Jose Avilez.
No opposition or other response was 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
Ramona Featherby applies for an order for Third Person Jose
Avilez to appear for examination. (Applications, Items 1, 2.b., 4, 5.b.) The
Application form used is Judicial Council Form AT-138/EJ-125, and it includes
the statutorily required notice. (Code Civ. Proc., § 708.120, subd. (e)(1)–(2).)
Ramona Featherby claims that Jose
Avilez is the tenant for the judgment debtor in this matter, and that Jose
Avilez is in control of funds or debts owed to the judgment debtor, as well as
information pertaining to the debtor’s income and assets. (Application,
Affidavit, ¶¶ 2–18.)
Ramona Featherby has made a satisfactory showing that the
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).
¿
III. Conclusion
Ramona Featherby’s Application and Order for Appearance and Examination
— Enforcement of Judgment against Third Person Jose Avilez 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).
Ramona Featherby shall file proof of service of the Third
Person no less than 72 hours in advance of the next hearing.