the procedure on 28 execution is to be in accordance with the procedure of the state in which the district court is 1 located at the time the remedy is sought
How later courts described this case
- the procedure on 28 execution is to be in accordance with the procedure of the state in which the district court is 1 located at the time the remedy is sought
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 BOARD OF TRUSTEES OF THE KERN Case No. 1:20-cv-01610-JLT-CDB
COUNTY ELECTRICAL WORKERS
12 HEALTH & WELFARE TRUST, et al. ORDER GRANTING APPLICATION
FOR APPEARNACE AND
13 Plaintiffs, EXAMINATION OF JUDGMENT
DEBTORS ALBERT ROMERO AND
14 v. ROMERO ELECTRIC LLC, AND FOR
THE PRODUCTION OF DOCUMENTS
15 ALAN BRADY MCCAA, et al.
(Doc. 39)
16 Defendants.
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19 Pending before the Court is the application of Plaintiffs Board of Trustees of the Kern
20 County Electrical Workers’ Health & Welfare Trust, Board of Trustees of the Kern County
21 Electrical Journeyman and Apprenticeship Training Trust, National Electrical Benefit Fund,
22 NECA-IBEW National Labor-Management Cooperation Committee, Administrative Maintenance
23 Fund, and International Brotherhood of Electrical Workers, Local 428’s (hereinafter collectively
24 “Plaintiffs/Judgment Creditor”) for appearance and examination of judgment debtors Albert
25 Romero and Romero Electric LLC (“Romero Defendants/Judgment Debtors”), and for the
26 production of documents. (Doc. 39). For the following reasons, this Court grants the application.
27 Background
28 On April 23, 2021, Plaintiffs and the Romero Defendants filed a notice of settlement.
1 (Doc. 21). On June 11, 2021, the parties filed a stipulation for conditional partial dismissal of the
2 action with prejudice as to Defendants Albert Romero and Romero Electric LLC only. (Doc. 25).
3 The stipulation conditionally dismissed the matter pending performance of the terms of a
4 settlement agreement between the parties. (Doc. 25-1). Specifically, the Romero Defendants
5 agreed to pay $9,500 by April 1, 2022, and permit an examination of business records by July 15,
6 2021. (Doc. 25 at 2). If the Romero Defendants failed to satisfy either of these terms or were
7 otherwise in default of the Settlement Agreement, then Plaintiffs were entitled to file a Stipulated
8 Judgment against them in the sum of $9,500, plus interest thereon at the rate of 10% per year
9 from and after July 1, 2021, less any payments made by the Romero Defendants toward their
10 obligations under the Settlement Agreement. Id. at 2-3.
11 On June 14, 2021, the Court issued an order closing the action as to the Romero
12 Defendants. (Doc. 27). The Court noted that if the Romero Defendants “fail to complete the
13 terms of the settlement,” Plaintiffs may seek a stipulated judgment against them. Id. at 1.
14 On October 24, 2021, Plaintiffs filed a motion for final judgment as to the Romero
15 Defendants. (Doc. 32). Plaintiffs asserted the Romero Defendants breached the settlement
16 agreement between them. Id. On May 2, 2022, the Court issued an order granting the request for
17 judgment and entered final judgment as to the Romero Defendants. (Doc. 37).
18 On February 9, 2024, Plaintiffs filed the instant application. (Doc. 39). In a declaration
19 filed in support of the application, Tiffany Lena, counsel for Plaintiffs, attests that the Romero
20 Defendants have made no payments on their debt. (Doc. 40).
21 Discussion
22 Federal Rule of Civil Procedure 69 (“Rule 69”) governs enforcement of judgment
23 proceedings in federal courts. Hilao v. Estate of Marcos, 95 F.3d 848, 851 (9th Cir. 1996).
24 Pursuant to Rule 69(a)(1), “[t]he procedure on execution—and in proceedings supplementary to
25 and in aid of judgment or execution—must accord with the procedure of the state where the court
26 is located, but a federal statute governs to the extent it applies.” See In re Estate of Ferdinand
27 Marcos Human Rights Litigation, 536 F.3d 980, 987-88 (9th Cir. 2008) (the procedure on
28 execution is to be in accordance with the procedure of the state in which the district court is
1 located at the time the remedy is sought). In turn, California Code of Civil Procedure § 708.110
2 provides, in relevant part:
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(a) The judgment creditor may apply to the proper court for an order requiring the
4 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
5 money judgment.
6 (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
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application of the judgment creditor.
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(c) If the judgment creditor has caused the judgment debtor to be examined under this
9 section during the preceding 120 days, the court shall make the order if the judgment
creditor by affidavit or otherwise shows good cause for the order. The application shall be
10 made on noticed motion if the court so directs or a court rule so requires. Otherwise, it
may be made ex parte.
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12 (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 the examination. Service shall be made
13 in the manner specified in Section 415.10. 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
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order unless extended or sooner terminated by the court.
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(e) The order shall contain the following statement in 14-point boldface type if printed or
16 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
17 contempt of court and the court may make an order requiring you to pay the reasonable
attorney's fees incurred by the judgment creditor in this proceeding.
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19 Cal Civ. Proc. Code § 708.110(a)-(e). Cal Civ. Proc. Code § 708.160(b) also provides that “[a]
20 person sought to be examined may not be required to attend an examination before a court located
21 outside the county in which the person resides or has a place of business unless the distance from
22 the person’s place of residence or place of business to the place of examination is less than 150
23 miles.”
24 Here, Plaintiffs’ application and affidavit set forth the showing required by Rule 69 and
25 the applicable provisions of Cal Civ. Proc. Code §§ 708.110 and 708.160. (Docs. 39-40).
26 Separately, Plaintiffs seek to require the Romero Defendants/judgement debtors to
27 produce documents prior to the examination. Under California law, judgment debtor proceedings
28 “permit the judgment creditor to examine the judgment debtor, or third persons who have
1 property of or are indebted to the judgment debtor, in order to discover property and apply it
2 toward the satisfaction of the money judgment.” United States v. Feldman, 324 F. Supp. 2d 1112,
3 1116 (C.D. Cal. 2004) (quoting Imperial Bank v. Pim Elec., Inc., 33 Cal. App.4th 540, 547
4 (1995)). Debtor examination is intended “to allow the judgment creditor a wide scope of inquiry
5 concerning property and business affairs of the judgment debtor, and to leave no stone unturned
6 in the search for assets which might be used to satisfy the judgment.” Alcalde v. NAC Real Estate
7 Investments & Assignments, Inc., 580 F. Supp. 2d 969, 970 (C.D. Cal. 2008) (internal citations
8 and quotations omitted).
9 Federal Rule of Civil Procedure 34 authorizes a party to seek the production of
10 documents. Id. at 971. Further, Cal Civ. Proc. Code § 708.030(a) provides that a “judgment
11 creditor may demand that any judgment debtor produce and permit the party making the demand,
12 or someone acting on that party’s behalf, to inspect and to copy a document that is in the
13 possession, custody, or control of the party on whom the demand is made…”
14 Accordingly, the Romero Defendants shall produce to Plaintiffs the following documents
15 for inspection as directed by this order:
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(a) Any information and documentation identifying real property, personal property,
17 intellectual property, vehicles, boats, brokerage accounts, retirement accounts, life
insurance policies, bank deposits, securities, cash, and all other assets owned by Albert
18 Romero and/or Romero Electric LLC, including, but not limited to, information relating to
financial accounts and monies owed to Albert Romero and/or Romero Electric LLC, by
19 others.
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(b) Any information and documentation identifying real property, personal property,
21 intellectual property, vehicles, boats, brokerage accounts, retirement accounts, life
insurance policies, bank deposits, securities, cash and any other assets transferred to a
22 third party from January 1, 2019, to the present.
23 (c) All accounts payable or receivable, payroll check stubs, financial statements of Albert
Romero and/or Romero Electric LLC including any document showing monetary amounts
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due to either judgment debtor from third party(s) from January 1, 2019, to the present.
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(d) All tax returns filed by Albert Romero and/or Romero Electric LLC with any
26 governmental body for the years 2019 through the present.
27 (e) All accounting and banking records for Albert Romero and/or Romero Electric LLC
including checkbooks, checkbook stubs, checkbook entries, and/or electronic banking
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1 records from January 1, 2019, through the present.
2 (f) All credit card statements from January 1, 2019, through the present.
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4 | Conclusion
5 Based on the foregoing, IT IS HEREBY ORDERED that
6 1. Albert Romero, in his capacity as an individual and as the designated representative of
7 Romero Electric LLC,! shall personally appear on May 13, 2024, at 9:00 am at the
8 United States District Court located at 510 19th Street, #200, Bakersfield CA 93301,
9 to furnish information to aid in the enforcement of a money judgment by answering
10 questions about the judgment debtor’s real and personal property and assets;
11 2. Romero Defendants/Judgment Debtor shall also bring any documents responsive to
12 this order to the United States District Court for inspection and photocopying;
13 3. Plaintiffs/Judgment Creditor must serve this order upon Romero Defendants
14 personally not less than ten (10) days before the date set for the examination and must
15 file a certificate of such service with the Court.
16 NOTICE TO JUDGMENT DEBTOR. IF YOU FAIL TO APPEAR AT THE TIME
17 | AND PLACE SPECIFIED IN THIS ORDER, YOU MAY BE SUBJECT TO ARREST
18 | AND PUNISHMENT FOR CONTEMPT OF COURT AND THE COURT MAY MAKE
19 | AN ORDER REQUIRING YOU TO PAY THE REASONABLE ATTORNEY’S FEES
20 | INCURRED BY THE JUDGMENT CREDITOR IN THIS PROCEEDING.
21 | ITIS SO ORDERED.
72 | Dated: _ February 15, 2024 | hr
23 UNITED STATES MAGISTRATE JUDGE
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' Cal Civ. Proc. Code § 708.150 provides that if a corporation, partnership, association,
trust, or other organization is served with an order to appear for an examination, it shall designate
28 || to appear and be examined one or more officers, directors, managing agent, or other persons who
are familiar with its property and debts. 5