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 Post subject: Aerielle LLC - Service On Counsel Inadequate For Contempt
PostPosted: Tue Nov 27, 2012 10:30 am 
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Aerielle v. Maximo Products LLC, 2012 WL 5834157 (N.D.Cal., Nov. 9, 2012).

United States District Court, N.D. California, San Jose Division.

AERIELLE, LLC, Plaintiff,



No. C10–03420 HRL.

Nov. 9, 2012.

William J. Frimel, Heffernan Seubert & French, Menlo Park, CA, Margaret Anne Crawford, Law Offices of Margaret A. Crawford, Oakland, CA, for Plaintiff.

Paul Gerard Minoletti, Law Offices of Paul G. Minoletti, San Mateo, CA, for Defendant.


HOWARD R. LLOYD, United States Magistrate Judge.

*1 Following a bench trial in this breach of contract action, the court entered judgment in the amount of $163,871.07 for plaintiff Aerielle LLC (Aerielle). Additionally, pursuant to the agreements at issue, Aerielle was awarded $27,780.66 in fees and $718.26 in costs incurred in this litigation. The court subsequently granted Aerielle's application for an order directing defendant Maximo Products, LLC (Maximo) to appear for a judgment debtor exam. The examination was set for October 16, 2012. Aerielle appeared on the designated date. Maximo did not.

During the October 16 appearance, Aerielle's counsel advised the court that defense counsel sent her an email the day before, stating that Maximo would not appear for the examination as ordered because the company will be dissolved. Arguing that this was not sufficient reason to excuse Maximo's appearance, Aerielle requested relief from the court. The court noted that Aerielle had not filed a proof of service of the judgment debtor examination order. And, in response to the court's inquiry, Aerielle's counsel stated that she did not personally serve Maximo with that order. Instead, she allowed service to be made on Maximo's counsel of record, via the court's CM/ECF system, upon filing of the order. The court expressed doubt whether that was sufficient. Nevertheless, the court directed Aerielle to submit a request in writing specifying the relief being sought, along with citations to relevant authority.

Aerielle subsequently filed a request for an order (1) directing Maximo to appear and show cause why it should not be held in contempt; (2) awarding Aerielle's reasonable attorney's fees and costs incurred in connection with Maximo's failure to appear (and making such an award part of the judgment against Maximo); and (3) "remind[ing] Maximo that the service of the examination order created a one-year lien on its nonexempt personal property, whether or not such property is in Maximo's possession and control, and that said lien extends to property outside of California." (Dkt. No. 61 at 2). Having reviewed Aerielle's written submission, and for the reasons discussed below, the court denies Aerielle's request.

Rule 69 of the Federal Rules of Civil Procedure provides that "the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located." Fed. R. Civ. P. 69(a)(2). California has a comprehensive statutory scheme governing the enforcement of judgments, codified as Title 9 of the California Code of Civil Procedure, including specific provisions pertaining to judgment debtor examinations. Aerielle requested a judgment debtor exam pursuant to California Code of Civil Procedure sec. 708.110. ( See Dkt. No. 58). That statute provides that a judgment creditor may apply "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." Cal.Code Civ. Proc. sec. 708.110(a).

*2 Under California law, a judgment debtor may be held in contempt for failure to appear for a judgment debtor examination. Cal.Code Civ. Proc. sec. 708.170(a)(1) (providing for contempt or issuance of an arrest warrant for failure to appear for a debtor's examination). And, if the judgment debtor's "failure to appear is without good cause, the judgment creditor shall be awarded reasonable attorney's fees incurred in the examination proceeding," and such an award "shall be added to and become part of the principal amount of the judgment." Id. sec. 708.170(a)(2).

In this case, the court denies the relief Aerielle seeks because Aerielle failed to properly effect service of the judgment debtor order. California Code of Civil Procedure sec. 708.110 provides that "[t]he judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for the examination. Service shall be made in the manner specified in Section 415.10." Cal.Code Civ. Proc. sec. 708.110(d). California Code of Civil Procedure sec. 415.10, in turn, directs service to be made by personal delivery to the person to be served. Id., sec. 415.10. Section 708.110 goes on to state that such "[s]ervice 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." Id. sec. 708.110(d). Further, state law requires that "when a writ, notice, order, or other paper is required to be served under [Title 9 of the Code of Civil Procedure] on the judgment debtor, it shall be served on the judgment debtor instead of the attorney for the judgment debtor." Id., sec. 684.020(a). There is an exception in situations where the judgment debtor files and serves a request that service be made on a specified attorney, along with a signed consent by the designated attorney. Id. sec. 684.020(b). There has been no such filing by Maximo here.

As discussed above, Aerielle did not personally serve the order requiring Maximo to appear for a judgment debtor exam. Nor has counsel submitted any papers supporting its request for fees and costs incurred in preparing for the judgment debtor examination. Accordingly, Aerielle's request for an order to show cause re contempt and for monetary sanctions is denied. See Salamon v. Creditors Specialty Service, Inc., No. C11–00172CW, 2012 WL 4857810 (N.D.Cal., Oct. 11, 2012) (denying motion re contempt and monetary sanctions where the judgment creditor failed to properly serve orders concerning the judgment debtor examination and did not submit documentation supporting its request for fees and costs).


= = = = = = = = J U D G M E N T E N F O R C E M E N T = = = = = = = =

Posted by Jay D. Adkisson of Riser Adkisson LLP and the publisher of the most comprehensive free online resource regarding judgment enforcement and judgment collection in California.

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