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Palacio Del Mar Homeowners Association, Inc. v. McMahon

June 16, 2009

PALACIO DEL MAR HOMEOWNERS ASSOCIATION, INC., PLAINTIFF AND RESPONDENT,
v.
ARNOLD A. MCMAHON, DEFENDANT AND APPELLANT.



Appeal from a postjudgment order of the Superior Court of Orange County, Jane D. Myers, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded with directions. (Super. Ct. No. 01CC14684).

The opinion of the court was delivered by: Ikola, J.

CERTIFIED FOR PUBLICATION

OPINION

Defendant Arnold A. McMahon (McMahon) appeals from a postjudgment order directing him to turn over a domain name to plaintiff Palacio Del Mar Homeowners Association Inc. (Palacio), to aid the execution of its judgment against McMahon. But Palacio cannot obtain an order directing the turnover of intangible property directly to it. And Palacio failed to show McMahon is in possession of the domain name. We reverse.

FACTS

As protracted litigation*fn1 snowballed, Palacio obtained a $40,000 judgment against McMahon for attorney fees incurred defending against McMahon‟s frivolous anti-SLAPP motion. (Palacio IV, supra, G038622 [affirming attorney fee award].) Palacio obtained a writ of execution. (Palacio V, supra, G039245 [dismissing appeal from order granting writ]; see Code Civ. Proc., § 699.510.)*fn2 The levying officer received two employer returns, but ultimately returned the writ unsatisfied to the court on the date it expired: February 27, 2008. (Palacio V, supra, G039245; see §§ 699.530, subd. (b), 699.560, subd. (a)(4).)

In the meantime, Palacio conducted a judgment debtor examination of McMahon on February 2, 2008. (§ 708.110, subd. (a).) McMahon conceded he had represented to the California Supreme Court that he ""has been a provider of interactive computer service, www[.]ahrc.com, for approximately ten years....‟" He testified the statement was true, though he thought the domain name was registered in his wife‟s name.

Palacio moved for an order directing McMahon to turn over possession and control of the ahrc.com domain name. It supported its motion with the transcript pages from the judgment debtor examination, a printout from the Orange County Clerk Recorder‟s Web site showing McMahon‟s wife had registered the fictitious business name "AHRC NEWS SERVICES" in 2001, and a printout from the Network Solutions‟ Web site showing AHRC News had registered the domain name in 1997.

The court granted the motion in April 2008. Its order provided, "It appears [McMahon] has an interest in the property in possession or under the custody and control of his wife." It directed McMahon and his wife (doing business as AHRC News or AHRC News Services) to "transfer [within 30 days] any and all rights of ownership, access, administration, and control over the domain name known as "ahrc.com,‟ but not the speech content of the host computer to which the "ahrc.com‟ domain name currently connects, to [Palacio]." It provided the "domain name shall be offered for sale by public auction [upon transfer], and the proceeds from said sale shall be applied towards the satisfaction of the money judgment dated April 18, 2007...."

McMahon appealed and petitioned for a writ of supersedeas to stay the turnover order. We granted the petition, issued the writ of supersedeas, and consolidated the two matters.

DISCUSSION

The parties devoted much of their briefing to discussing the nature of a domain name. We asked for additional briefing on more basic issues concerning the turnover order.*fn3 We conclude the order must be reversed.

The turnover order was sought and issued pursuant to section 708.205. That statute is part of an article governing judgment debtor examinations. (§ 708.110 et seq.) It authorizes the court to order "the judgment debtor‟s interest in the property in the possession or under the control of the judgment debtor... to be applied toward the satisfaction of the money judgment...." (§ 708.205, subd. (a).)

Section 708.205 does not allow the turnover of the domain name directly to Palacio. It authorizes the judgment debtor‟s interest in property "to be applied toward the satisfaction of the money judgment." (§ 708.205, subd. (a).) Cash is easily applied toward satisfying the judgment. Non-monetary property is not so easily applied. It must be valued and sold. And section 708.205 ...


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