Xerox Corporation v. Simply Smashing, Inc.

Filing 23

ORDER for appearance and examination of judgment debtor Timothy R. Fruehe. The judgment debtor is ordered to appear on 2/19/2014 at 9:30 a.m. in Courtroom 9. Signed by Magistrate Judge Stanley A. Boone on 12/4/2013. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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XEROX CORPORATION,

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Plaintiff,

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v.

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SIMPLY SMASHING, INC.,

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Case No. 1:13 -cv-00395-LJO-SAB
ORDER FOR APPEARANCE AND
EXAMINATION OF JUDGMENT DEBTOR
TIMOTHY R. FRUEHE

Defendant.

(ECF No. 22)

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I.

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INTRODUCTION

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Plaintiff Xerox Corporation filed this breach of contract action against Defendant Simply

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Smashing on March 18, 2013. (ECF No. 1.) On April 23, 2013, Plaintiff filed a request for entry

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of default against Defendant Simply Smashing, Inc. (ECF No. 7.) On April 25, 2013, a Clerk's

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entry of default was filed. (ECF No. 8.) On May 1, 2013, Plaintiff filed a motion for default

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judgment.

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recommendation recommending that default judgment be entered. (ECF No. 19.) On July 12,

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2013, an order adopting the findings and recommendation issued and judgment was entered

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against Defendant Simply Smashing in the amount of $411,461.21. (ECF No. 21.) On December

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3, 2013, Plaintiff filed a proposed order for Timothy R. Fruehe to appear for examination. (ECF

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No. 22.)

(ECF No. 10.)

On June 24, 2013, the Magistrate Judge filed a findings and

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II.

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DISCUSSION

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Pursuant to Federal Rule of Civil Procedure 69(a)(1), "[t]he procedure on execution – and

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in proceedings supplementary to and in aid of judgment or execution – must accord with the

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procedure of the state where the court is located, but a federal statute governs to the extent it

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applies." In turn, 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 the
court, at a time and place specified in the order, to furnish information to aid in
enforcement of the money judgment.

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(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 the 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 the examination.
Service shall be made in the manner specified in Section 415.10. 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.”
Cal Civ. Proc. Code § 708.110(a)-(e).

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California Code of Civil Procedure § 708.160(b) also provides that "[a] person sought to

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be examined may not be required to attend an examination before a court located outside the

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county in which the person resides or has a place of business unless the distance from the person's

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place of residence or place of business to the place of examination is less than 150 miles." Cal.

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Civ. Proc. Code § 708.160(b).

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The Court finds that Plaintiff has satisfied the requirement of 28 U.S.C. § 1963 because
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judgment in the amount of $411,461.21 has been entered by this Court. Additionally, Plaintiff's

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application sets forth the showing required by Federal Rule of Civil Procedure 69(a)(2) and the

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applicable provisions of the California Code of Civil Procedure §§ 708.110 and 708.160.

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III.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendant/judgment debtor Timothy R. Fruehe shall appear personally on

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Wednesday, February 19, 2014, at 9:30 a.m. in Courtroom 9 of the United States

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

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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; and

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2.

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

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Timothy R. Fruehe 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.

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NOTICE TO JUDGMENT DEBTOR. IF YOU FAIL TO APPEAR AT THE TIME

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AND PLACE SPECIFIED IN THIS ORDER, YOU MAY BE SUBJECT TO ARREST

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AND PUNISHMENT FOR CONTEMPT OF COURT AND THE COURT MAY MAKE

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AN ORDER REQUIRING YOU TO PAY THE REASONABLE ATTORNEY'S FEES

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INCURRED BY THE JUDGMENT CREDITOR IN THIS PROCEEDING.

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IT IS SO ORDERED.
Dated:

December 4, 2013
UNITED STATES MAGISTRATE JUDGE

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