Michael S. Little v. Edward G. Mannion and Mannion & Lowe
Case No: 17CV02405
Hearing Date: Mon May 06, 2019 9:30

Nature of Proceedings: Motion of Defendants for Order for Judgment Debtor Examination

Michael S. Little v. Edward G. Mannion and Mannion & Lowe (Judge Sterne)

Case No. 17CV02405

Hearing Date: May 6, 2019

HEARING:

Motion of Defendants for Order for Judgment Debtor Examination

ATTORNEYS:

For Plaintiff Michael S. Little: In pro. per.

For Defendants Edward G. Mannion and Mannion & Lowe: Joseph P. McMonigle, Jennifer A. Becker, Long & Levit LLP

TENTATIVE RULING:

As set forth herein, defendants shall appear at the hearing on this motion and present a completed application for order in compliance with Santa Barbara County Superior Court Local Rules, rule 1303(a). The court will further address this motion at the hearing.

Background:

On June 1, 2017, plaintiff Michael S. Little filed his original complaint in this action against defendants Edward G. Mannion and Mannion & Lowe.

On August 10, 2017, defendants concurrently filed a demurrer to the complaint and a special motion to strike (see Code Civ. Proc., § 425.16).

On September 11, 2017, the court granted in part the special motion to strike, reserving for further determination an award of attorney fees, and sustained in part the demurrer. The court entered its written order confirming its September 11 ruling on October 12, 2017.

On October 17, 2017, defendants filed their motion for award of attorney fees under Code of Civil Procedure section 425.16. The motion was opposed by Little.

On November 20, 2017, the court granted the motion for an award of attorney fees in part, awarding attorney fees and costs in favor of defendants and against Little in the amount of $24,840.50. On December 22, 2017, the court entered its written order confirming its November 20 award of attorney fees. On January 2, 2018, defendants filed their notice of entry of the court’s December 22 written order.

On March 6, 2019, defendants filed their application for an order for Little to appear for examination in enforcement of the attorney fee award. On March 7, 2019, the court entered the order as requested for an examination to occur on April 15, 2019.

On March 12, 2019, Little filed an objection to the proposed order for examination.

On April 10, 2019, defendants filed this motion for an order for appearance and examination to enforce the attorney fee award. In support of the motion, counsel for defendants, attorney Jennifer A. Becker, declares that a courtesy copy of the March 6 request for an order was served on Little prior to the court’s entry of the order. (Becker decl., ¶ 6.) There was thereafter some confusion regarding counsel obtaining a conformed copy of the court’s signed order. (Becker decl., ¶ 7.) The result of the confusion was that a signed copy of the court’s order was not available to defendants in sufficient time to serve the order in advance of the April 15 examination. (Ibid.) The motion requests that the court enter a new order for examination.

On April 15, 2019, Little appeared for the examination, but there was no appearance by defendants. (Minute Order, Apr. 15, 2019.) The court noted this motion as pending for May 6 and ordered the examination off calendar.

No opposition or other response has been filed in response to this motion.

Analysis:

“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.” (Code Civ. Proc., § 708.110, subd. (a).)

A “judgment” for purposes of the Enforcement of Judgments Law includes a court order. (Code Civ. Proc., § 680.230.) A “money judgment” is that part of a judgment, including an order, “that requires the payment of money.” (Code Civ. Proc., § 680.270.) The court’s order of December 22, 2017, requires the payment of money by Little to defendants and hence is an order enforceable under the Enforcement of Judgments Law. The judgment debtor examination is therefore an appropriate procedure in aid of enforcement of the money judgment (order).

This court’s local rules address the procedures for obtaining an order for examination of a judgment debtor, including:

“A judgment creditor shall apply for an order requiring the judgment debtor or a third party to appear for examination pursuant to Code of Civil Procedure sections 708.110 or 708.120 using Judicial Council form EJ-125 (or successor form). It is the judgment creditor’s responsibility to complete the proposed order portion of the form, including the date and time of the examination hearing, and to verify that the court is available at such date and time for the examination. Examinations are to be set in the department to which the case is assigned.” (Santa Barbara County Superior Court Local Rules, rule 1303(a).)

“Proof of service of an order requiring the judgment debtor or a third party to appear for examination pursuant to Code of Civil Procedure sections 708.110 or 708.120 must be filed with the court at least three (3) court days prior to the examination.” (Local Rules, rule 1303(b).)

“Unless otherwise ordered by the court, continuances of an examination hearing will be granted only where: (i) both the applicant and the person to be examined appear on the date of the examination, (ii) the applicant and the person to be examined stipulate in writing to a continuance, or (iii) proof of timely service of the order has been filed prior to the request for a continuance and the applicant declares that the person to be examined has agreed to appear at the continued date. If timely service has not been effected, the court may set a new examination date upon request of the applicant but a new order for examination must be submitted to the court and the new order served as required as required by applicable law.” (Local Rules, rule 1303(c).)

“If the applicant fails to appear at the hearing and the person named in the order appears, the proceeding will be taken off calendar without costs awarded to the applicant. Except as otherwise ordered by the court, no further hearing will be scheduled except upon application for a new order with the further hearing scheduled no earlier than 120 days from the date of the originally scheduled hearing.” (Local Rules, rule 1303(d).)

Here, there was no valid service of the court’s March 7, 2019, and no proof of service filed with the court. This motion was filed and served on April 10, 2019, identifying that there was no valid service of the court’s order as entered (as opposed to service of a courtesy copy of the application for order, which is not an order of the court) because defendants did not obtain the written order of March 7.

The better practice would have been for defendants to have taken the examination off calendar and to have provided formal notice to that effect. However, because no service was effected on Little and Little had been served with notice of this motion stating that no service had been effected, the court finds good cause to excuse defendants from the 120 day limitation on the setting of a further hearing for judgment debtor examination. (See Local Rules, rule 1303(f).)

As Local Rule 1303(a) requires, defendants must provide a completed application on the appropriate form. If defendants comply with Local Rule 1303 and provide a completed (as to their part) form at the hearing of this motion, the court will enter the order as then appears appropriate. If there is no compliance with Local Rule 1303 or no appearance at the hearing on this motion by defendants, the court will order this motion off calendar without prejudice to the making of a later application for order complying with the Enforcement of Judgments Law and Local Rule 1303.