La-Kebbia Wilson et al v. City of Fresno, et al

Filing 93

ORDER for APPEARANCE and EXAMINATION of JUDGMENT DEBTOR TERI MCCADA. Defendant/judgment debtor Teri McCada shall appear personally on Wednesday, June 11, 2014, at 12:00 p.m. (noon) in Courtroom 7 of the United States District Courthouse, located at 2 500 Tulare Street, Fresno, California, 93721, to furnish information to aid in enforcement of a money judgment by answering questions about the Defendant/ judgment debtor's real and personal property; Defendant/judgment creditor must serve thi s order upon Plaintiff/judgment debtor Teri McCada personally not less than ten (10) days before the date set for the examination and must file a certificate of such service with the Court; and if Defendant/judgment creditor is unable to effectuate p ersonal service on Plaintiff/judgment debtor within the required time, Defendant/judgment creditor must file notice with the Court by no later than ten (10) days before the date set for the examination and inform the Court that the examination hearing must be taken off calendar. Order signed by Magistrate Judge Sheila K. Oberto on 4/29/2014. (Timken, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LA-KEBBIA WILSON, and TERI
McCADA,

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CASE NO. 1:09-cv-00887-LJO-SKO

Plaintiffs,

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ORDER FOR APPEARANCE AND
EXAMINATION OF JUDGMENT
DEBTOR TERI McCADA

v.

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CITY OF FRESNO, et al.,

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(Doc. 92)

Defendants.
_________________________________/

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I.

INTRODUCTION

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On December March 29, 2011, summary judgment was granted against Plaintiff Teri

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McCada and in favor of Defendant City of Fresno, and judgment was issued accordingly. (Doc.

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51, 52.) A bill of costs of was submitted by the City of Fresno against Plaintiff Teri McCada,

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and the Court ordered $4,491.47 taxed as costs. (Docs. 58, 85.)1 An abstract of Judgment was

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issued against Terri McCada on December 10, 2013, for $4,491.47.

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On April 24, 2014, Defendant City of Fresno filed an application and request for an order

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for the appearance and examination of judgment debtor Teri McCada. (Doc. 92.) Accordingly,

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The costs taxed by the Court were amended on November 8, 2013. (Doc. 85.)

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Teri McCada is ordered to appear personally on Wednesday, June 11, 2014, at 12:00 p.m.

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(noon) in Courtroom 7 of the United States District Courthouse, located at 2500 Tulare

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Street, Fresno, California, 93721, to furnish information to aid in enforcement of a money

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judgment by answering questions about the Defendant/judgment debtor's real and person

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property.2

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II.

DISCUSSION

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Federal Rule of Civil Procedure 69 governs enforcement of judgment proceedings in

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federal courts. Hilao v. Estate of Marcos, 95 F.3d 848, 851 (9th Cir. 1996). Rule 69(a)

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provides:

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(1) Money Judgment; Applicable Procedure. A money judgment is enforced
by a writ of execution, unless the court directs otherwise. The procedure on
execution – and in proceedings supplementary to and in aid of judgment or
execution – must accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it applies.

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(2) Obtaining Discovery. In aid of the judgment or execution, the judgment
creditor or a successor in interest whose interest appears of record may obtain
discovery from any person--including the judgment debtor--as provided in
these rules or by the procedure of the state where the court is located.

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Fed. R. Civ. P. 69(a)(1)-(2).

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Judgment debtor proceedings under California law "permit the judgment creditor to

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examine the judgment debtor, or third persons who have property of or are indebted to the

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judgment debtor, in order to discover property and apply it toward the satisfaction of the money

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judgment." Imperial Bank v. Pim Elec., Inc., 33 Cal. App. 4th 540, 546-47; see also Cal. Civ.

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Proc. Code §§ 708.110-708.205. All assets of a judgment debtor are subject to enforcement.

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Cal. Civ. Proc. Code § 695.010 (a).

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California Code of Civil Procedure § 708.110 provides in relevant part:

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(a) The judgment creditor may apply to the proper court for an order requiring
the judgment debtor to appear before the court, or before a referee appointed by

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Defendant City of Fresno set the debtor examination hearing for Wednesday, June, 11 2014, at 9:30 a.m.; however,
a calendar conflict requires that the time for the appearance be modified to 12:00 p.m. (noon).

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the court, at a time and place specified in the order, to furnish information to aid
in enforcement of the money judgment.
(b) If the judgment creditor has not caused the judgment debtor to be examined
under this section during the preceding 120 days, the court shall make an order
upon ex parte application of the judgment creditor.
(c) If the judgment creditor has caused the judgment debtor to be examined under
this section during the preceding 120 days, the court shall make the order if the
judgment creditor by affidavit or otherwise shows good cause for the order. The
application shall be made on noticed motion if the court so directs or a court rule
so requires. Otherwise, it may be made ex parte.
(d) The judgment creditor shall personally serve a copy of the order on the
judgment debtor not less than 10 days before the date set for examination.
Service shall be made in the manner specified in Section 145.10. Service of the
order creates a lien on the personal property of the judgment debtor for a period of
one year from the date of the order unless extended or sooner terminated by the
court.
(e) The order shall contain the following statement in 14-point boldface type if
printed or in capital letters if typed: "NOTICE TO JUDGMENT DEBTOR. 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."

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Cal Civ. Proc. Code § 708.110(a)-(e).

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California Code of Civil Procedure § 708.160(a) also provides that "[e]xcept as otherwise

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provided in this section, the proper court for examination of a person under this article is the

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court in which the money judgment is entered." Cal. Civ. Proc. Code § 708.160(a). Here,

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judgment was entered by this Court on March 29, 2011. (Doc. 29.)

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As such, the City of Fresno's application sets forth the showing required by Federal Rule

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of Civil Procedure 69(a)(2) and the applicable provisions of the California Code of Civil

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Procedure §§ 708.110 and 708.160.

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III.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

CONCLUSION AND ORDER

Defendant/judgment debtor Teri McCada shall appear personally on Wednesday,

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June 11, 2014, at 12:00 p.m. (noon) in Courtroom 7 of the United States

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District Courthouse, located at 2500 Tulare Street, Fresno, California, 93721,

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to furnish information to aid in enforcement of a money judgment by answering

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questions about the Defendant/ judgment debtor's real and personal property;

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2.

Defendant/judgment creditor must serve this order upon Plaintiff/judgment debtor

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Teri McCada personally not less than ten (10) days before the date set for the

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examination and must file a certificate of such service with the Court; and

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3.

If Defendant/judgment creditor is unable to effectuate personal service on

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Plaintiff/judgment debtor within the required time, Defendant/judgment creditor

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must file notice with the Court by no later than ten (10) days before the date set

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for the examination and inform the Court that the examination hearing must be

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taken off calendar.

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NOTICE TO JUDGMENT DEBTOR: IF YOU FAIL TO APPEAR AT

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THE TIME AND PLACE SPECIFIED IN THIS ORDER, YOU MAY BE

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SUBJECT TO ARREST AND PUNISHMENT FOR CONTEMPT OF

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COURT AND THE COURT MAY MAKE AN ORDER REQUIRING YOU

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TO PAY THE REASONABLE ATTORNEY'S FEES INCURRED BY THE

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JUDGMENT CREDITOR IN THIS PROCEEDING.3

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IT IS SO ORDERED.
Dated:

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April 29, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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ie14hje

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This notice is furnished pursuant to California Code of Civil Procedure § 708.110(e).

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