Gaitan-Ayala et al v. Contreras & Campa, LLP et al

Filing 29

ORDER REGARDING NELSON GAITAN-AYALA'S APPLICATION FOR WRIT OF ASSISTANCE re: 25 - Signed by JUDGE SUSAN OKI MOLLWAY on 7/15/2021. (jo)COURT'S CERTIFICATE OF SERVICE - Nelson Gaitan-Ayala will be served by First Class Mail on July 16, 2021 to the address of record listed on the Notice of Electronic Filing (NEF). Law Office of Eric A. Seitz, Anabelis Gaitan c/o Law Office of Eric A. Seitz, and Erika Gaitan c/o Law Office of Eric A. Seitz will be served by First Class Mail on July 16, 2021. Drago Campa, Contreras & Campa and Drago Campa will be served by First Class Mail on July 16, 2021.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NELSON GAITAN-AYALA; ANABELIS )
GAITAN; and ERIKA GAITAN,
)
)
Plaintiffs,
)
)
vs.
)
)
CONTRERAS & CAMPA, LLP; and
)
DRAGO CAMPA,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 08-00249 SOM/LK
ORDER REGARDING NELSON
GAITAN-AYALA’S APPLICATION
FOR WRIT OF ASSISTANCE

ORDER REGARDING NELSON GAITAN-AYALA’S
APPLICATION FOR WRIT OF ASSISTANCE
On November 28, 2008, Plaintiffs Nelson Gaitan-Ayala,
Anabelis Gaitan, and Erika Gaitan obtained a Judgment in their
favor and against Defendants Contreras & Campa, LLP, and Drago
Campa in the amount of $100,000.

See ECF No. 19.

Nearly 13 years later, on June 7, 2021, Gaitan-Ayala
asked this court to issue a Writ of Assistance under Rule 70(d)
of the Federal Rules of Civil Procedure.

See ECF No. 25.

On June 9, 2021, this court asked for supplemental
briefing to be filed by July 8, 2021, on the subject of the
timeliness of the Application.

When the court did not timely

receive that supplemental brief, the court terminated the
Application and considered the matter concluded.

See ECF No. 27.

On July 13, 2021, the court received Gaitan-Ayala’s
supplemental brief, explaining that he has been incarcerated and
arguing that the ten-year period for enforcing judgments in

Hawaii was extended under section 657-13 of the Hawaii Revised
Statutes given his status as a prisoner.

Gaitan-Ayala placed his

document into the prison mail system on July 6, 2021.
Considering his pro se and incarcerated status, this court
accepts the supplement and now turns to his Application for Writ
of Assistance.
This court is concerned that Gaitan-Ayala may have a
misunderstanding about what help this court can provide.

Any

misunderstanding is understandable given the name of the writ.
In fact, a writ of assistance is a court order usually served by
the U.S. Marshals Service.

The U.S. Marshals Service describes a

writ of assistance as follows:
an order directing that a party convey,
deliver, or turn over a deed, document, or
right of ownership. This writ, which may
also be called a writ of restitution or writ
of possession, usually serves as an eviction
from real property. In addition, if a
judgment directs a party to execute a
conveyance of land, to deliver a deed or
other document, or to perform any other
specific act, and the party fails to comply
within the time specified, the court may
direct the act to be done by some other
person appointed by the court at the cost of
the disobedient party. Where so performed,
the act has like effect as if done by the
party.
https://www.usmarshals.gov/process/assistance.htm (last visted
July 15, 2021).
Rule 70, which provides for writs of assistance, is
designed “to deal with parties who seek to thwart judgments by
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refusals to comply with orders to perform specific acts.”

12 C.

Wright, A. Miller, & R. Marcus, Federal Practice & Procedure,
Civil 3d § 3021 (2014).

“Rule 70 is designed to preclude

recalcitrant parties from frustrating court orders and permits
the court upon application of a party to divest title in property
within the jurisdiction of the court and vest it in others.”
Rivers by Rivers v. Schweiker, 692 F.2d 871, 874 (2d Cir. 1982)
To the extent Gaitan-Ayala expects the U.S. Marshals
Service and/or this court to conduct an investigation or to
advocate for him, his expectation is ill-founded.

A writ of

assistance can issue to help a party collect a judgment only
after that party identifies the object(s) to be collected and
ensures that they are located within the jurisdiction of this
court.

The same would apply to an application for a writ of

execution, which “is a process issued by the court directing the
U.S. Marshal to enforce and satisfy a judgment for payment of
money. (Federal Rules of Civil Procedure 69).”
https://www.usmarshals.gov/process/execution-writ.htm (last
visited July 15, 2021).

Gaitan-Ayala cannot obtain a writ of

assistance based on an assumption that the U.S. Marshals Service
or this court will assist him in investigating what assets Campa
has and figuring out where the assets are.

This court can only

“assist” by issuing orders that allow the U.S. Marshals Service

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to seize property after Gaitan-Ayala satisfies the requirements
set forth earlier in this paragraph.
Gaitan-Ayala’s Application for Writ of Assistance
attaches a copy of what purports to be a lien on a California
property where Drago Campa apparently lives.

This court passes

no judgment with respect to the validity of that lien.

However,

assuming that Campa lives in California, this court lacks the
power to issue writs of assistance with respect to California
property.

Instead, assuming that Campa lives in California,

Gaitan-Ayala would have to register or “domesticate” his Hawaii
judgment in California and then use California law with respect
to having a court in California issue an order enforcing the
judgment against Campa.

This court cannot advise Gaitan-Ayala

with respect to that process and instead encourages him to
contact an attorney licensed to practice law in California with
experience in the collection of judgments.
Of course, before spending additional time, money, and
effort in attempting to enforce his judgment, Gaitan-Ayala should
consider whether Campa has assets from which the judgment may be
collected.

If, for example, a bank has a mortgage on the

property that predates Gaitan-Ayala’s judgment against Campa,
Gaitan-Ayala may want to consider the amount of that mortgage as
compared to the value of the property.

If there is a co-owner to

that property, Gaitan-Ayala may want to consider the co-owner’s

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rights.

Additionally, Gaitan-Ayala may want to explore the State

Bar of California’s Client Security Fund, 845 South Figueroa
Street, Los Angeles, CA

90017-2515, 213-765-1140, which

reimburses clients of attorneys who have lost money or property
due to theft or dishonest conduct by a California lawyer.

See

http://www.calbar.ca.gov/Public/Complaints-Claims/Client-Security
-Fund (last visted July 15, 2021).

This court is not saying that

Gaitan-Ayala is eligible for reimbursement from that fund and
leaves it to Gaitan-Ayala to explore any time limits or other
requirements for claims made to that fund.
The Clerk of Court is directed to serve this order on
1) Gaitan-Ayala, USM # 42049-048, Giles W. Dalby Correctional
Facility, 805 North Avenue F, Post, Texas 79356; 2) Law Office of
Eric A. Seitz, The Block - Mililani Bldg., 820 Mililani St.,
Ste. 520, Honolulu, HI 96813; 3) Anabelis Gaitan, c/o Law Office
of Eric A. Seitz, The Block - Mililani Bldg., 820 Mililani St.,
Ste. 520, Honolulu, HI 96813; 4) Erika Gaitan, c/o Law Office of
Eric A. Seitz, The Block - Mililani Bldg., 820 Mililani St.,
Ste. 520, Honolulu, HI 96813; 5) Drago Campa, 17117 Gunnerson
St., Lake Elsinore, CA 92530; and 6) Contreras & Campa and Drago
Campa, 633 W. 5th Street, Ste. 2600, Los Angeles, CA 90071.

It

is not clear whether Seitz continues to represent Gaitan-Ayala.
As a final note, this court cautions Gaitan-Ayala that
he shares the $100,000 judgment with two other Plaintiffs who may

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claim some or all of anything he obtains from Campa, provided
those other Plaintiffs are not time-barred or otherwise
restricted from collecting the judgment.

At this point, unless

Gaitan-Ayala (1) identifies the assets he wants assistance in
seizing, and (2) establishes that those assets are located in
Hawaii or held by a person or entity in Hawaii, this court cannot
assist Gaitan-Ayala and will take no further action relating to a
writ of assistance.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 15, 2021.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Gaitan-Ayala v. Contreras & Campa et al.; Civil No. 08-00249 SOM/LK; ORDER REGARDING
NELSON GAITAN-AYALA’S APPLICATION FOR WRIT OF ASSISTANCE

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