Judge: Michael P. Linfield, Case: BS138171, Date: 2022-12-07 Tentative Ruling
Case Number: BS138171 Hearing Date: December 7, 2022 Dept: 34
SUBJECT: Application and Order for Appearance
and Examination
Moving Party: Judgment Creditor James Dalessandro
Resp. Party: None
Judgment
Creditor’s application and order for appearance and examination is DENIED.
On July 10, 2012,
Petitioner Writers Guild of America, West Inc. filed a petition to confirm
contractual arbitration award against Respondents Citizen Jane Productions, LLC
and Cibola Entertainment LLC. This petition was originally filed in Department
57.
On March 1, 2013, the
Court granted the petition to confirm the arbitrator’s opinion and award.
On March 22, 2013,
the Court entered the following judgment: “1) Respondents Citizen Jane
Productions, LLC and Cibola Entertainment, LLC (“Respondents”) shall pay
Writers Guild of America, West, Inc. (“WGAW”) $52,277.21 relating to unpaid
compensation on behalf of writer James Delessandro, plus interest on the unpaid
compensation (at the rate of 1.5% per month from March 27, 2012) in the amount
of $9,281.00, a total of $61,558.21, plus costs, including attorney fees, in
the amount of $_______.00.” (03/22/13 Judgment.)
On December 2, 2013,
Judgment Creditor WGAW filed an acknowledgment of assignment of judgment,
assigning its right, title, and interest in the judgment to James Dalessandro.
(12/02/13 Acknowledgment of Assignment of Judgment.)
After a significant
amount of procedural history, on September 18, 2020, Judgement Debtor Eric A.
Mitchell filed a motion for relief from judgment.
On October 20, 2020,
the Court denied Judgment Debtor’s motion for relief from judgment.
On February 9, 2021,
the Court granted Judgment Creditor James Dalessandro’s motion for attorney’s
fees in the amount of $24,633.30.
On October 4, 2022,
Judgment Creditor filed his Application and Order for Appearance and
Examination against Third Party William J. Mitchell III.
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
William J. Mitchell III to appear for examination. (Application, ¶¶ 1, 4, 5.b.)
Judgment Creditor attaches a Proof of Service to his Application, which avers
that Judgment Debtor and the Law Office of D. Joshua Staub have been served.
Judgment Creditor also attaches an Affidavit in which he identifies property
that he believes Judgment Debtor Mitchell has fraudulently lent to Third Party
Mitchell, who he further asserts are brothers. (Dalessandro Affidavit, p.
1:26–28, 2:1–2.) Judge Creditor claims to have a lien against this property,
but his referenced attachment is not actually an exhibit to his filing. (Id.
at 2:2–4.)
The Court does not have any
evidence before it that Third Party Mitchell was properly served because no
proof of service relating to Third Party Mitchell has been attached to the
application or filed with the Court. (Code Civ. Proc., § 708.120, subd. (b).) The
Proof of Service filed shows service on an individual and an entity, neither or
whom are the individual that allegedly has the property Judgment Creditor seeks
and whom the Judgement Creditor wishes to depose.
The Court
DENIES Judgment Creditor’s application and order for appearance and
examination.
III.
Conclusion
Judgment
Creditor’s application and order for appearance and examination is DENIED.