Nelson v. McFall et al

Filing 45

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/6/17 ORDERING that Defendant/judgment debtor EARL MCFALL shall appear personally on 3/22/2017 at 10:00 AM in Courtroom 24 (CKD) before Magistrate Judge Carolyn K. Delaney, to furnish informatio n to aid in enforcement of a money judgment by answering questions about the Defendant/judgment debtors real and personal property. Plaintiff/judgment creditor must serve this order upon Defendant/judgment debtor EARL MCFALL personally not less than 10 days before the date set for the examination and must file a certificate of such service with the Court. (Kastilahn, A)

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DAVID M. ROSE, CA Bar No. 129723
Minnick-Hayner
P.O. Box 1757
Walla Walla, WA 99362
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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NO. 2:15-CV-02006-MCE-CKD

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SANDRA NELSON,
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Plaintiff,

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vs.

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ORDER FOR APPEARANCE AND
EXAMINATION OF JUDGMENT
DEBTOR EARL MCFALL

JENNIFER MCFALL and EARL MCFALL,

Date: March 22, 2017
Time: 10:00 a.m.
Location: Courtroom 24

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Defendants.
Hearing Requested

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Plaintiff SANDRA NELSON, through her counsel of record, Minnick-Hayner, P.S.,
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hereby moves the Court for an Order for the appearance and examination of Judgment Debtor

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EARL MCFALL. On July 22, 2016, plaintiff’s motion for summary judgment was granted

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and Judgment was entered for plaintiff in the amount of $150,000.00.

Said Judgment was

filed in accordance with the Court’s Order on July 25, 2016. Plaintiff requested issuance of

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Order for Appearance and Examination of
Judgment Debtor Earl McFall – Page 1

Minnick  Hayner
P.O. Box 1757
Walla Walla, WA 99362
[phone]

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an Abstract of Judgment and the Abstract of Judgment was issued and filed on August 3,

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2016.
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Pursuant to Federal Rule of Civil Procedure 69(a)(1), “The procedure on execution and in proceedings supplementary to and in aid of judgment or execution – must accord with

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

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it 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.
(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.

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(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.

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(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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Order for Appearance and Examination of
Judgment Debtor Earl McFall – Page 2

Minnick  Hayner
P.O. Box 1757
Walla Walla, WA 99362
[phone]

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

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to be examined may not be required to attend an examination before a court located outside
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the county in which the person resides or has a place of business unless the distance from the

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person’s place of residence or place of business to the place of examination is less than 150

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miles.” Cal. Civ. Proc. Code § 708.160(b).
Plaintiff has not caused the judgment debtor to be examined under this section during

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the preceding 120 days and the judgment debtor resides in Sacramento County.
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Accordingly, IT IS HEREBY ORDERED that:
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Defendant/judgment debtor EARL MCFALL shall appear personally on

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Monday, March 22, 2017, at 10:00 a.m. in Courtroom 24 of the United States District

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Court, located at 501 I Street, Sacramento, California 95814, to furnish information to aid

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in enforcement of a money judgment by answering questions about the Defendant/judgment
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debtor’s real and personal property; and
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Plaintiff/judgment creditor must serve this order upon Defendant/judgment

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debtor EARL MCFALL personally not less than 10 days before the date set for the
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 AND PLACE SPECIFIED IN THIS ORDER, YOU MAY BE

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SUBJECT TO ARREST AND PUNISHMENT FOR CONTEMPT OF
COURT AND THE COURT MAY MAKE AN ORDER REQUIRING

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Order for Appearance and Examination of
Judgment Debtor Earl McFall – Page 3

Minnick  Hayner
P.O. Box 1757
Walla Walla, WA 99362
[phone]

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YOU TO PAY THE REASONABLE ATTORNEY’S FEES INCURRED

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BY THE JUDGMENT CREDITOR IN THIS PROCEEDING.1

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IT IS SO ORDERED.
Dated: March 6, 2017

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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

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Order for Appearance and Examination of
Judgment Debtor Earl McFall – Page 4

Minnick  Hayner
P.O. Box 1757
Walla Walla, WA 99362
[phone]