Lee v. Swansboro Country Property Owners Ass'n

151 Cal. App. 4th 575, 59 Cal. Rptr. 3d 924, 2007 Cal. Daily Op. Serv. 6115, 2007 Cal. App. LEXIS 862
CourtCalifornia Court of Appeal
DecidedMay 29, 2007
DocketNo. C048310
StatusPublished
Cited by10 cases

This text of 151 Cal. App. 4th 575 (Lee v. Swansboro Country Property Owners Ass'n) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Swansboro Country Property Owners Ass'n, 151 Cal. App. 4th 575, 59 Cal. Rptr. 3d 924, 2007 Cal. Daily Op. Serv. 6115, 2007 Cal. App. LEXIS 862 (Cal. Ct. App. 2007).

Opinion

Opinion

HULL, J.

In this appeal, we conclude that the trial court erred in ruling untimely plaintiff’s motion to quash a subpoena duces tecum. We therefore reverse and remand to the trial court to consider plaintiff’s motion on its merits.

Facts and Proceedings

In proceedings that are not part of the record on appeal, defendant Swansboro Country Property Owners Association was awarded a money judgment against plaintiff Don H. Lee. On September 2!, 2004, defendant wrote to plaintiff demanding payment of the judgment and stated that if payment was not forthcoming, it would schedule an examination of plaintiff as a judgment debtor. (See Code Civ. Proc., § 708.110 et seq.; unspecified statutory references that follow are to the Code of Civil Procedure.) Plaintiff did not respond, and defendant sent a followup e-mail on September 30.

Plaintiff, who acted in propria persona throughout these proceedings, replied with an e-mail the next day, October 1, 2004, and suggested possible dates for scheduling a debtor’s examination. The parties agreed to communicate again on October 4.

In the meantime, on September 29, 2004, upon application of defendant, the trial court had entered an order for plaintiff to appear at a judgment debtor’s examination on November 8, 2004.

On October 4, plaintiff wrote defendant a letter in which he described his assets as virtually nonexistent, but agreed to the judgment debtor’s examination.

[579]*579On October 6, 2004, defendant obtained a subpoena duces tecum ordering plaintiff to bring specified documents relating'to his financial assets to the November 8 examination. The subpoena ■ listed 13 production demands, including items such as pay stubs, tax returns, bank statements, and information relating to plaintiff’s real and personal property.

On October 10, 2004, plaintiff wrote to defendant stating that he had decided to turn over all'of his personal household items to defendant. Plaintiff said he was going to move his furniture, clothes, appliances, and “everything I still own” to a storage unit. He wrote that he" would pay for the first month’s storage and then give the keys to the storage locker to defendant. He added that while this would not compromise defendant’s right to conduct a creditor’s examination, it would save plaintiff from being humiliated in front of his friends and neighbors.

On October 20, 2004, plaintiff wrote to defendant objecting to the items enumerated in the subpoena, asserting claims of irrelevance, overbreadth, privacy, and privilege. He accused defendant of harassing him and using these production demands as a means of obtaining discovery for other pending litigation between the parties.

On October 22, 2004, defendant e-mailed plaintiff stating that it would not accept plaintiff’s personal items and would refuse to accept the keys for a storage unit or responsibility for that storage. Defendant mailed a hard copy of this e-mail to plaintiff as well.

Plaintiff responded by letter on October 29, characterizing' defendant’s position as an abandonment of all claims to plaintiff’s personal property. Accordingly, he sought to limit the scope of inquiry at the upcoming examination.

In an e-mail dated October 29, defendant agreed to limit the scope of two items listed in the subpoena, but otherwise rejected plaintiff’s objections. Defendant noted that because plaintiff had not “filed a motion to quash the subpoena duces tecum the letter objections have no effect and you are required to produce all of the documents demanded.”

Taking this not-so-subtle hint, plaintiff filed a motion to quash the subpoena on November 1, 2004, scheduling the hearing for the same time as the debtor’s examination set for November 8. Plaintiff’s motion reiterated the objections he had earlier made to defendant. Plaintiff also filed claims for exemption and objections to the examination.

[580]*580On Friday, November 5, defendant faxed its opposition to the motion to quash to the court and e-mailed this opposition to plaintiff. The court filed this pleading on Monday, November 8, the date of the debtor’s examination. Defendant noted that, under section 1987.1, a motion to quash can.be granted only if it is “reasonably made,” and it argued that plaintiff had not met this standard because of his delay in filing his motion. It asserted that plaintiff’s failure to file his motion earlier “forced both this Court and defense council [sic] to occupy itself, on a shortened time frame, with further nonsense from [plaintiff].” Defendant also answered plaintiff’s objections on the merits, arguing that all of the items to be produced were relevant to determining what assets were available to satisfy the judgment.

At the hearing, trial court denied plaintiff’s motion to quash, ruling it untimely. Plaintiff appeals from that determination. (§ 904.1, subd. (a)(2).)

Discussion

Plaintiff contends the court erred in ruling his motion to quash untimely, and he argues that the motion should have been granted. We agree that the court erred, and remand to the trial court to address the substance of plaintiff’s claims.

We first address defendant’s motion to dismiss the appeal.

Defendant filed a motion to dismiss the appeal as moot, asserting that defendant had withdrawn the subpoena duces tecum at issue in this appeal and had no intention of pursuing the matter further. We denied the motion to dismiss. We note however that, if defendant wants to withdraw its subpoena, it may do so in the trial court, obviating the need for the trial court to address the merits of plaintiff’s motion in the remand we are ordering.

In order to put plaintiff’s claims in the proper analytic framework, we briefly outline the remedies available to judgment creditors, focusing on inspection demands and judgment debtor examinations-.

In order to determine a debtor’s assets, a judgment creditor may propound written interrogatories and/or demand the production of documents in the manner provided by the general discovery statutes, and the judgment debtor’s response must likewise follow the same discovery provisions. (§§ 708.020, 708.030.) By propounding interrogatories and demanding the production of documents, a creditor may obtain needed information by [581]*581relatively simple and inexpensive means. As one practice guide notes, “An inspection demand may provide the judgment creditor with documents disclosing the debtor’s assets or earnings (e.g., tax returns, financial statements, payroll stubs, real property deeds, stock certificates, passbooks, deposit account statements, bonds, trust deeds, automobile ownership certificates (‘pink slips’), promissory notes, etc.) H] An inspection demand is cheaper than a judgment debtor examination and requires less preparation time. It can also be used to ‘set up’ a later examination of the judgment debtor.” (Schwartz & Ahart, Cal. Practice Guide; Enforcing Judgments & Debts (The Rutter Group 2006) f 6:1391.6, p. 6G-29 (hereafter Schwartz); see generally 1 Debt Collection Practice in Cal. (Cont.Ed.Bar 2d ed. 2006) Discovery in Debt Collection Actions, §§ 5.22, 5.29, pp. 298-299, 303-304.)

However, there are disadvantages to this method of discovery. “A judgment debtor may not respond to an inspection demand, and a sanction award for failure to respond is often uncollectible.

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151 Cal. App. 4th 575, 59 Cal. Rptr. 3d 924, 2007 Cal. Daily Op. Serv. 6115, 2007 Cal. App. LEXIS 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-swansboro-country-property-owners-assn-calctapp-2007.