Midland Innovations, NV v. Weiland International Inc. et al

Filing 27

ORDER by Judge Maria-Elena James denying 19 Ex Parte Application (cdnS, COURT STAFF) (Filed on 5/28/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MIDLAND INNOVATIONS, NV,

Case No. 07-mc-80257-CW (MEJ)

Plaintiff,
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ORDER DENYING EX PARTE
APPLICATION FOR EMERGENCY
RELIEF

v.
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WEILAND INTERNATIONAL INC., et al.,

Re: Dkt. No. 19

Defendants.
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United States District Court
Northern District of California

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Midland Innovations, NV (“Creditor”) levied upon real property that was at one time

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owned by Wen Wang (“Debtor”). Third party Weiping Chen (“Chen”) objected to the levy on the

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ground that the property was no longer owned by Debtor, having been transferred by Debtor to

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Chen and another party. Pursuant to California Code of Civil Procedure section 720.160, the

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levying officer gave Creditor notice of Chen’s claim and informed Creditor that the property

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levied upon “will be released unless, within ten (10) days of the date of this notice, the creditor

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files with the [levying officer] an undertaking that satisfies the requirements of Section

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720.160(b).” Creditor calculates that the levying officer would release the property no later than

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May 28, 2014. Doc. No. 19 at 3. Rather than post an undertaking or allow the levying officer to

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release the property, Creditor filed an ex parte application for emergency relief at 3:36 p.m. on

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May 27, 2014, seeking relief from the court before the May 28, 2014 deadline. See id.

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Creditor asks the court to quash the third party claim for failure to include certain elements

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required by the California Code of Civil Procedure: the description of Chen’s interest (including a

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statement of the facts upon which the claim is based) and an estimate of the market value of the

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interest Chen claims. In the alternative, Creditor asks the court to direct Chen to file an amended

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claim including the omitted requirements. Creditor contends that Chen’s failure to provide the

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required information prevents the Creditor from determining how to respond to the claim,

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“specifically with respect to whether to post an undertaking and, if so, for how much.” Id. at 3.

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Creditor seeks the requested relief by the following day, and argues that it would be irreparably

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harmed if the levying officer were to release the property.
Creditor must follow California’s Enforcement of Judgment Law (“EJL”) to enforce its

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money judgment in this court. See Fed. R. Civ. P. 69(a). California’s EJL does not provide for

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the relief Creditor seeks here, and Creditor provides no legal authority for the relief it requests. As

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applicable here, Creditor may allow the property to be released by the levying officer; instruct the

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levying officer to release the property; petition the court for a hearing on the third party claim and

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apply for an ex parte restraining order to prevent the property from being released pending the

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hearing; or file an undertaking with the levying officer to enable the levying officer to retain

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possession of the property and execute the writ. See A. Ahart, CALIFORNIA PRACTICE GUIDE:

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United States District Court
Northern District of California

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ENFORCING JUDGMENTS AND DEBTS § 6:1623 (The Rutter Group 2013); see also Cal. Code Civ.

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Proc. §§ 720.170, 720.270, 720.310, 720.430, 720.660. (Creditor need not know the estimated

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market value of the property to post a sufficient undertaking as California Code of Civil Procedure

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section 720.160(b) provides that an undertaking of $10,000 would be sufficient to prevent release

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of the property from the levy.)

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Moreover, Creditor has not established that it would be irreparably harmed if the levying

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officer were to release the property. Creditor may petition the court for a hearing to determine the

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validity of Chen’s claim whether or not the property has been released from the levy. Cal. Code

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Civ. Proc. §§ 720.170(d), 720.270(d). (Creditor must file such a petition within fifteen days after

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Chen filed her objection, or within fifteen days after Creditor files its undertaking. Id. § 720.310.)

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Creditor represents that it acquired a judgment lien on the property on January 14, 2008. Thus, the

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property may not be sold by Chen even if it is released from the levy.

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For these reasons, Creditor’s ex parte emergency application is denied. Creditor shall
follow the procedures provided by California’s EJL.
IT IS SO ORDERED.
Dated: May 28, 2014
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MARIA-ELENA JAMES
United States Magistrate Judge
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