Injazat Technology Fund B.S.C. v. Najafi et al

Filing 77

ORDER TO APPEAR AT JUDGMENT DEBTOR EXAMINATION. Signed by Judge Nathanael M. Cousins on 7/30/12. (nclc1, COURT STAFF) (Filed on 7/30/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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INJAZAT TECHNOLOGY FUND B.S.C.,

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Plaintiff,

Case No. 11-cv-04133 PJH (NC)
ORDER TO APPEAR AT JUDGMENT
DEBTOR EXAMINATION

v.
Re: Dkt. Nos. 73-75
DR. HAMID NAJAFI ,
Defendant.

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On July 2, 2012, the court ordered judgment debtor Hamid Najafi to appear for an

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examination on August 1, 2012. Dkt. No. 71. Five days before the scheduled examination,

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counsel for Najafi filed a letter stating that Injazat had failed to personally serve a copy of this

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court’s order on Najafi in accordance with California Code of Civil Procedure § 708.110(d), and

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that Najafi will not appear at the scheduled examination for that reason. Dkt. No. 73. Counsel

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for Injazat filed a response on July 30, 2012, which contains attachments showing that on July 11,

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2012, Najafi was personally served with the order and with a subpoena to produce documents at

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the examination, and that counsel for Injazat notified counsel for Najafi via email on July 12,

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2012, of the service of these documents. Dkt. No. 74, Ex. A, B. Counsel for Najafi did not
Case No. 11-cv-04133 PJH (NC)
ORDER TO APPEAR AT
JUDGMENT DEBTOR EXAM

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contest the validity of service at the time she received this email.
Counsel for Najafi now contends that Najafi was not personally served, as “he did not

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receive a copy of the order until he found it taped to his front door the evening of July 11.” Dkt.

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No. 75 at 1. Counsel also argues that she did not consent to service via e-mail. Id.

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Federal Rule of Civil Procedure 69 provides that with respect to a money judgment,

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“procedure on execution—and in proceedings supplementary to and in aid of judgment or

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execution—must accord with the procedure of the state where the court is located, but a federal

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statute governs to the extent it applies.” FED. R. CIV. P. 69(a). California Code of Civil

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Procedure § 708.110 governs judgment debtor examinations in California and provides that “the

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judgment creditor shall personally serve a copy of the order on the judgment debtor not less than

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10 days before the date set for the examination. Service shall be made in the manner specified in

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Section 415.10.” CAL. CODE CIV. P. § 708.110(d). “The method described as ‘personal service’

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means service that is accomplished ‘by personal delivery of a copy of the summons and of the

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complaint to the person to be served.’” American Exp. Centurion Bank v. Zara, 131 Cal. Rptr. 3d

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99, 103 (Cal. Ct. App. 2011) (citing CAL. CODE CIV. P. § 415.10). “[P]roof of service made

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pursuant to section 415.10 ‘may be made by affidavit of the person making the service showing

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the time, place, and manner of service and the facts showing that the service was made in

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accordance with the applicable statutory provisions. The affidavit shall recite or in other manner

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show the name of the person to whom the papers served were delivered and, if appropriate, the

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title of the person or the capacity in which the person was served.’” Id. (citing CAL. CODE CIV. P.

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§ 684.220). Proof of service that meets these requirements establishes a rebuttable presumption

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of proper service. Id.

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Here, the court finds that Injazat has established a presumption of proper service under §

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415.10, as counsel for Injazat has filed proof of service showing that process server Ron Marcus

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effected personal service on Najafi on July 11, 2012, by “personally delivering to and leaving

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with the [] defendant a true copy” of the order setting the judgment debtor examination and a

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subpoena to produce documents at the examination. Dkt. 74, Ex. A. Accordingly, Najafi must

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appear before this court on August 1, 2012, at 9:00 a.m., at which time he may present evidence
Case No. 11-cv-04133 PJH (NC)
ORDER TO APPEAR AT
JUDGMENT DEBTOR EXAM

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showing that he was not served in accordance with § 415.10. Additionally, as the subpoena that

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Injazat served on Najafi is not subject to a motion to quash, Najafi must be prepared to produce

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documents and information in accordance with the subpoena at the hearing on August 1, 2012.

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IT IS SO ORDERED.
DATE: July 30, 2012
Nathanael M. Cousins
United States Magistrate Judge

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Case No. 11-cv-04133 PJH (NC)
ORDER TO APPEAR AT
JUDGMENT DEBTOR EXAM

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