Judge: Michael P. Linfield, Case: BS138171, Date: 2023-01-27 Tentative Ruling

Case Number: BS138171    Hearing Date: January 27, 2023    Dept: 34

SUBJECT:         Ex Parte Motion re: Application and Order for Appearance and Examination (Third Person)

Moving Party:  Judgment Creditor James Dalessandro

Resp. Party:    None

Judgment Creditor’s application and order for appearance and examination is GRANTED.

Judgment Creditor shall file proof of service with the Court.

BACKGROUND:

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 December 7, 2022, the Court denied Judgment Creditor’s Application and Order for Appearance and Examination.

On January 19, 2023, Judgment Creditor filed his Ex Parte Motion re: Application and Order for Appearance and Examination (Third Person).

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. (Ex Parte Application, Ex. A, ¶¶ 1.b., 4, 5.b.) Judgment Creditor lists the property that the person to be examined under this order has possession or control of. (Id., Ex A. at p. 2.)

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 does note, however, that Counsel is not correct is noting that the subsequent service must not be done until 10 days prior to the examination. (Ex Parte Application, p. 4.) The statutory language of “[n]ot less than 10 days prior” means 10 days is the latest service can be completed, not the earliest it can be completed.

        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 with the Court.