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

Filing 97

ORDER FOR APPEARANCE AND EXAMINATION OF JUDGMENT DEBTOR TERI MCCADA. Plaintiff/judgment debtor Teri McCada shall appear personally on Wednesday, 2/11/2015, at 09:30 AM in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto in Courtroom 7 of the United States District Courthouse, located at 2500 Tulare Street, Fresno, California, 93721, to furnish information to aid in enforcement of a money judgment by answering questions about the Plaintiff/judgment debtors real and person property; Defendant/judgment creditor must serve this 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 personal service on Plaintiff/judgment debtor Teri McCada within the required time, Defendant/judgment creditor must file notice with the Court by no later than nine (9) 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 12/18/2014. (Timken, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 LA-KEBBIA WILSON; TERI McCADA, 10 Plaintiffs, 11 ORDER FOR APPEARANCE AND EXAMINATION OF JUDGMENT DEBTOR TERI McCADA v. 12 Case No. 1:09-cv-00887-LJO-SKO (Doc. 43) 13 14 CITY OF FRESNO, 15 Defendant. _____________________________________/ 16 17 18 I. 19 INTRODUCTION On December March 29, 2011, summary judgment was granted against Plaintiff Teri McCada 20 and in favor of Defendant City of Fresno, and judgment was issued accordingly. (Doc. 51; 52.) A bill 21 of costs of was submitted by the City of Fresno against Plaintiff Teri McCada, and the Court ordered 22 $4,491.47 taxed as costs. (Docs. 58; 85.)1 An abstract of Judgment was issued against Terri McCada 23 on December 10, 2013, for $4,491.47. 24 On December 16, 2014, Plaintiffs filed an application and request for an order for the 25 appearance and examination of judgment debtor Teri McCada. (Doc. 96.) For the reasons set 26 forth below, Teri McCada is ordered to appear personally on Wednesday, February 11, 2015, at 27 28 1 The costs taxed by the Court were amended on November 8, 2013. (Doc. 85.) 1 9:30 a.m. in Courtroom 7 of the United States District Courthouse, located at 2500 Tulare Street, 2 Fresno, California, 93721, to furnish information to aid in enforcement of a money judgment by 3 answering questions about the Plaintiff/judgment debtor's real and person property. 4 5 II. DISCUSSION Federal Rule of Civil Procedure 69 governs enforcement of judgment proceedings in 6 federal courts. Hilao v. Estate of Marcos, 95 F.3d 848, 851 (9th Cir. 1996). Rule 69(a) provides: 7 8 9 10 11 12 (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. (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. 13 Fed. R. Civ. P. 69(a)(1)-(2). 14 Judgment debtor proceedings under California law “permit the judgment creditor to 15 examine the judgment debtor, or third persons who have property of or are indebted to the 16 judgment debtor, in order to discover property and apply it toward the satisfaction of the money 17 judgment.” Imperial Bank v. Pim Elec., Inc., 33 Cal. App. 4th 540, 546-47; see also Cal. Civ. 18 Proc. Code, §§ 708.110-708.205. All assets of a judgment debtor are subject to enforcement. Cal. 19 Civ. Proc. Code, § 695.010 (a). 20 California Code of Civil Procedure § 708.110 provides in relevant part: 21 (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 the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment. 22 23 24 25 26 27 28 (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. 2 1 2 3 (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. 4 5 6 7 (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.” 8 9 Cal Civ. Proc. Code § 708.110(a)-(e). 10 California Code of Civil Procedure § 708.160(a) also provides that “[e]xcept as otherwise 11 provided in this section, the proper court for examination of a person under this article is the court 12 in which the money judgment is entered.” Cal. Civ. Proc. Code, § 708.160(a). Here, judgment 13 was entered by this Court on March 29, 2011. (Docs. 51; 52.) 14 As such, Defendants’ application sets forth the showing required by Federal Rule of Civil 15 Procedure 69(a)(2) and the applicable provisions of the California Code of Civil Procedure 16 §§ 708.110 and 708.160. 17 III. CONCLUSION AND ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff/judgment debtor Teri McCada shall appear personally on Wednesday, 20 February 11, 2015, at 9:30 a.m. in Courtroom 7 of the United States District Courthouse, located 21 at 2500 Tulare Street, Fresno, California, 93721, to furnish information to aid in enforcement of a 22 money judgment by answering questions about the Plaintiff/judgment debtor’s real and person 23 property; 24 2. Defendant/judgment creditor must serve this order upon Plaintiff/judgment debtor 25 Teri McCada personally not less than ten (10) days before the date set for the examination and 26 must file a certificate of such service with the Court; and 27 3. If Defendant/judgment creditor is unable to effectuate personal service on 28 Plaintiff/judgment debtor Teri McCada within the required time, Defendant/judgment creditor 3 1 must file notice with the Court by no later than nine (9) days before the date set for the 2 examination and inform the Court that the examination hearing must be taken off calendar. 3 NOTICE TO JUDGMENT DEBTOR. IF YOU FAIL TO APPEAR AT THE TIME AND 4 PLACE SPECIFIED IN THIS ORDER, YOU MAY BE SUBJECT TO ARREST AND 5 PUNISHMENT FOR CONTEMPT OF COURT AND THE COURT MAY MAKE AN ORDER 6 REQUIRING YOU TO PAY THE REASONABLE ATTORNEY'S FEES INCURRED BY THE 7 JUDGMENT CREDITOR IN THIS PROCEEDING.2 8 9 IT IS SO ORDERED. Dated: 10 December 18, 2014 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 This notice is furnished pursuant to California Code of Civil Procedure § 708.110(e). 4

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