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McKnight v. Barkett

United States District Court, S.D. California

April 29, 2015

THE RICHARD McKNIGHT AND SHIRLEY J. McKNIGHT 2000 FAMILY TRUST, Richard McKnight, Trustee, Plaintiff,
v.
WILLIAM J. BARKETT, an individual; and CASTAIC III PARTNERS, LLC, a California limited liability company, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART EX PARTE APPLICATION FOR ORDER TO APPEAR FOR EXAMINATION [ECF No. 7]

DAVID H. BARTICK, Magistrate Judge.

I. INTRODUCTION

Judgment Creditor The Richard McKnight and Shirley J. McKnight 2000 Family Trust, Richard McKnight, Trustee ("Judgment Creditor"), initiated this action on September 24, 2012 by registering in this Court a judgment entered on July 9, 2012 in the United States District Court for the District of Nevada against William J. Barkett ("Judgment Debtor"). (ECF No. 1.) The judgment, totaling $233, 675.74, remains outstanding. (ECF No. 7-1 at 2:1-6.)

On April 28, 2015, Judgment Creditor filed an ex parte Application for Order to Appear for Examination. (ECF No. 7.) Judgment Creditor requests an order requiring the Judgment Debtor and his wife, third party Lisa Ann Barkett, to appear for examinations. For the reasons set forth below, the Court GRANTS in part and DENIES in part the Judgment Creditor's Application.

II. DISCUSSION

A. Applicable Law

Federal Rule of Civil Procedure 69 authorizes federal courts to enforce a money judgment by writ of execution. FED. R. CIV. P. 69(a)(1). "The procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies." Id. Accordingly, in ruling on the Judgment Creditors' Application, the Court follows California's statutory provisions for the enforcement of judgments, known collectively as the Enforcement of Judgments Law, as set forth in California Code of Civil Procedure §§ 680.010 through 724.260.

Judgment debtor proceedings under California law "permit the judgment creditor to examine the judgment debtor, or third persons who have property of or are indebted to the judgment debtor, in order to discover property and apply it toward the satisfaction of the money judgment." Imperial Bank v. Pim Elec., Inc., 39 Cal.Rptr.2d 432, 437 (Cal.Ct.App. 1995). Debtor examinations are intended "to allow the judgment creditor a wide scope of inquiry concerning property and business affairs of the judgment debtor, " Hooser v. Superior Court, 101 Cal.Rptr.2d 341, 345 (Cal.Ct.App. 2000), and "to leave no stone unturned in the search for assets which might be used to satisfy the judgement." Troy v. Superior Court, 231 Cal.Rptr. 108, 112 (Cal.Ct.App. 1986).

California Code of Civil Procedure § 708.110 provides:

(a) The judgment creditor may apply to the proper court for an order requiring the judgment debtor to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.
(b) If the judgment creditor has not caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the order upon ex parte application of the judgment creditor.
(c) If the judgment creditor has caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the order if the judgment creditor by affidavit of otherwise shows good cause for the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
(d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for examination. Service shall be made in the manner specified in Section 145.10. Service of the order creates a lien on the personal property of the judgment debtor for a period of one year from the date of the order unless extended or sooner terminated by the court.
(e) The order shall contain the following statement in 14-point boldface type if printed or in capital letters if typed: "NOTICE TO JUDGMENT DEBTOR. If you fail to appear at the time and place specified in this order, you may be subject to arrest and punishment for contempt of court and the court may make an order requiring you to pay ...

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