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Inc. v. Kahl & Goveia Commercial Real Estate

California Court of Appeals, Second District, Sixth Division

May 3, 2017

YOLANDA'S, INC., Plaintiff and Respondent,
v.
KAHL & GOVEIA COMMERCIAL REAL ESTATE, Defendant and Appellant.

         Kent M. Kellegrew, Judge Superior Court County Super. Ct. No. 56-2012-00413479-CU-CO-VTA of Ventura

          Voss, Cook & Thel and Francis T. Donohue III for Defendant and Appellant.

          Lurie & Seltzer, Barak Lurie and Michael J. Conway for Plaintiff and Respondent.

          GILBERT, P. J.

         Here we conclude, among other things, that the scope of questions asked by a judgment creditor in a third party judgment debtor examination may include the location of assets no longer in the possession of the third party. (Code Civ. Proc. §§ 708.120, 708.130, 187.)[1] Appellant wishes to appeal from a post-judgment discovery order arising from such a third party judgment debtor examination.

         Appellant acknowledges that the order may not be appealable. It is not. We accommodate the request to treat the matter as a petition for writ of mandate. We deny the petition.

         FACTS

         Yolanda's, Inc. obtained a $1, 892, 835 judgment against Kahl & Goveia Commercial Real Estate (KGCRE); Rocklin Covenant Group, LP (Rocklin); and K&G / Seabridge II, LLC (K&G) in an action involving a breach of lease. We reversed the judgment against KGCRE and affirmed in all other respects. (Gietzen v. Goveia (Mar. 30, 2016, B255925) [nonpub. opn.].)

         KGCRE managed shopping centers owned, in part, by Joseph Goveia and Bruce Kahl. Goveia and Kahl were principals in KGCRE. In spite of earning $774, 000 per year in fees, KGCRE claimed it was insolvent and shut down operations in August 2013.

         Goveia created a new property management company, Seabridge Property Services (SPS). KGCRE's assets were transferred to SPS along with its key employees.

         One of those employees who transferred from KGCRE to SPS is Joseph Goveia's brother, James Goveia. James was an accountant for KGCRE and serves SPS in that same capacity.

         In January 2016, Yolanda's obtained an order requiring the person most knowledgeable for KGCRE to appear as a third party witness for a judgment debtor's examination. James Goveia was designated as the person most knowledgeable (PMK).

         Yolanda's also issued a subpoena to produce documents in the debtor's examination. James Goveia produced a document showing a transfer of a Mercedes Benz owned by KGCRE to Kahl and his wife for the forgiveness of an alleged debt. James also produced two bills of sale transferring four vehicles and other items including three leases and all goods, furniture and equipment from KGCRE to Joseph Goveia.

         During the examination, James Goveia acknowledged the assets listed in the documents were transferred to Kahl and Joseph Goveia. But James's counsel instructed him not to answer questions about where those assets are located. He claimed such ...


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