Aerielle, LLC v Maximo Product, LLC
Filing
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ORDER by Magistrate Judge Howard R. Lloyd denying 61 Aerielle LLC's Motion for an Order to Show Cause re Contempt and for Sanctions. (hrllc2, COURT STAFF) (Filed on 11/9/2012)
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*E-FILED: November 9, 2012*
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NOT FOR CITATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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For the Northern District of California
United States District Court
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No. C10-03420 HRL
AERIELLE, LLC,
ORDER DENYING AERIELLE LLC’S
MOTION FOR AN ORDER TO SHOW
CAUSE RE CONTEMPT AND FOR
SANCTIONS
Plaintiff,
v.
MAXIMO PRODUCTS, LLC,
[Re: Docket No. 61]
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Defendant.
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Following a bench trial in this breach of contract action, the court entered judgment in
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the amount of $163,871.07 for plaintiff Aerielle LLC (Aerielle). Additionally, pursuant to the
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agreements at issue, Aerielle was awarded $27,780.66 in fees and $718.26 in costs incurred in
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this litigation. The court subsequently granted Aerielle’s application for an order directing
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defendant Maximo Products, LLC (Maximo) to appear for a judgment debtor exam. The
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examination was set for October 16, 2012. Aerielle appeared on the designated date. Maximo
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did not.
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During the October 16 appearance, Aerielle’s counsel advised the court that defense
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counsel sent her an email the day before, stating that Maximo would not appear for the
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examination as ordered because the company will be dissolved. Arguing that this was not
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sufficient reason to excuse Maximo’s appearance, Aerielle requested relief from the court. The
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court noted that Aerielle had not filed a proof of service of the judgment debtor examination
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order. And, in response to the court’s inquiry, Aerielle’s counsel stated that she did not
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personally serve Maximo with that order. Instead, she allowed service to be made on Maximo’s
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counsel of record, via the court’s CM/ECF system, upon filing of the order. The court
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expressed doubt whether that was sufficient. Nevertheless, the court directed Aerielle to submit
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a request in writing specifying the relief being sought, along with citations to relevant authority.
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Aerielle subsequently filed a request for an order (1) directing Maximo to appear and
attorney’s fees and costs incurred in connection with Maximo’s failure to appear (and making
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such an award part of the judgment against Maximo); and (3) “remind[ing] Maximo that the
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service of the examination order created a one-year lien on its nonexempt personal property,
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For the Northern District of California
show cause why it should not be held in contempt; (2) awarding Aerielle’s reasonable
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United States District Court
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whether or not such property is in Maximo’s possession and control, and that said lien extends
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to property outside of California.” (Dkt. No. 61 at 2). Having reviewed Aerielle’s written
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submission, and for the reasons discussed below, the court denies Aerielle’s request.
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Rule 69 of the Federal Rules of Civil Procedure provides that “the judgment creditor or
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a successor in interest whose interest appears of record may obtain discovery from any
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person—including the judgment debtor—as provided in these rules or by the procedure of the
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state where the court is located.” FED. R. CIV. P. 69(a)(2). California has a comprehensive
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statutory scheme governing the enforcement of judgments, codified as Title 9 of the California
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Code of Civil Procedure, including specific provisions pertaining to judgment debtor
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examinations. Aerielle requested a judgment debtor exam pursuant to California Code of Civil
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Procedure § 708.110. (See Dkt. No. 58). That statute provides that a judgment creditor may
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apply “for an order requiring the judgment debtor to appear before the court, or before a referee
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appointed by the court, at a time and place specified in the order, to furnish information to aid in
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enforcement of the money judgment.” CAL. CODE CIV. PROC. § 708.110(a).
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Under California law, a judgment debtor may be held in contempt for failure to appear
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for a judgment debtor examination. CAL. CODE CIV. PROC. § 708.170(a)(1) (providing for
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contempt or issuance of an arrest warrant for failure to appear for a debtor’s examination).
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And, if the judgment debtor’s “failure to appear is without good cause, the judgment creditor
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shall be awarded reasonable attorney’s fees incurred in the examination proceeding,” and such
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an award “shall be added to and become part of the principal amount of the judgment.” Id. §
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708.170(a)(2).
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In this case, the court denies the relief Aerielle seeks because Aerielle failed to properly
provides that “[t]he judgment creditor shall personally serve a copy of the order on the
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judgment debtor not less than 10 days before the date set for the examination. Service shall be
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made in the manner specified in Section 415.10.” CAL. CODE CIV. PROC. § 708.110(d).
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California Code of Civil Procedure § 415.10, in turn, directs service to be made by personal
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delivery to the person to be served. Id., § 415.10. Section 708.110 goes on to state that such
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For the Northern District of California
effect service of the judgment debtor order. California Code of Civil Procedure § 708.110
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United States District Court
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“[s]ervice of the order creates a lien on the personal property of the judgment debtor for a
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period of one year from the date of the order, unless extended or sooner terminated by the
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court.” Id. § 708.110(d). Further, state law requires that “when a writ, notice, order, or other
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paper is required to be served under [Title 9 of the Code of Civil Procedure] on the judgment
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debtor, it shall be served on the judgment debtor instead of the attorney for the judgment
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debtor.” Id., § 684.020(a). There is an exception in situations where the judgment debtor files
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and serves a request that service be made on a specified attorney, along with a signed consent
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by the designated attorney. Id. § 684.020(b). There has been no such filing by Maximo here.
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As discussed above, Aerielle did not personally serve the order requiring Maximo to
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appear for a judgment debtor exam. Nor has counsel submitted any papers supporting its
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request for fees and costs incurred in preparing for the judgment debtor examination.
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Accordingly, Aerielle’s request for an order to show cause re contempt and for monetary
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sanctions is denied. See Salamon v. Creditors Specialty Service, Inc., No. C11-00172CW, 2012
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WL 4857810 (N.D. Cal., Oct. 11, 2012) (denying motion re contempt and monetary sanctions
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where the judgment creditor failed to properly serve orders concerning the judgment debtor
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examination and did not submit documentation supporting its request for fees and costs).
SO ORDERED.
Dated: November 9, 2012
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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE
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For the Northern District of California
United States District Court
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5:10-cv-03420-HRL Notice has been electronically mailed to:
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Margaret Anne Crawford
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Paul Gerard Minoletti
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William J. Frimel
mcrawford@mcrawfordlaw.com, sandra.sowell@dlapiper.com
pgmlaw@gmail.com, valerie.pgmlaw@gmail.com
bill@hsfllp.com, billfrimel@gmail.com
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For the Northern District of California
United States District Court
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