1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 TRUSTEES OF THE SAN DIEGO Case No.: 22-cv-01556-RSH-KSC ELECTRICAL PENSION TRUST; 8 TRUSTEES OF THE SAN DIEGO ORDER GRANTING APPLICATION 9 ELECTRICAL HEALH AND WELFARE FOR EXAMINATION OF STANLEY TRUST; and SAN DIEGO ELECTRICAL FRANCIS SEKERKE OFFICER OF 10 INDUSTRY ADMINISTRATIVE JUDGMENT DEBTOR 11 CORPORATION, [ECF No. 19] 12 Plaintiffs, 13 v. 14 COMMWAVE, INC., a California corporation, 15 Defendant. 16 17 18 Before the Court is Plaintiffs/Judgment Creditors Trustees of San Diego Electrical 19 Pension Trust, Trustees of the San Diego Electrical Health and Welfare Trust, and San 20 Diego Electrical Industry Administrative Corporation (collectively, “Judgment Creditors”) 21 Application for Examination of Stanley Francis Sekerke Officer of Judgment Debtor 22 Commwave (the “Application”). [ECF Nos. 19, 19-1 at 2 ¶ 2.] For the reasons set forth 23 below, the Court GRANTS the Application. 24 I. BACKGROUND 25 On January 26, 2024, the Court entered Judgment in favor of Judgment Creditors 26 and against Commwave Inc. (“Judgment Debtor”) in the amount of $42,102.64. [ECF Nos. 27 14, 19-1 ¶ 2.] The Judgment has not been vacated or reversed, and the full amount, 28 exclusive of post judgment interest, remains outstanding. [Id.] 1 On August 13, 2024, Judgment Creditors filed the instant Application for an order 2 directing the appearance of Stanley Francis Sekerke as the Chief Executive Officer of 3 Judgment Debtor. [ECF No. 19.] Judgment Creditors also request production of certain 4 documents “subject to the ownership and control of Judgment Debtor and Mr. Sekerke.” 5 [Id.] 6 II. ANALYSIS 7 Federal Rule of Civil Procedure 69 authorizes federal courts to enforce a money 8 judgment by writ of execution. Fed. R. Civ. P. 69 (a). Rule 69 provides “[t]he procedure 9 on execution—and in proceedings supplementary to and in aid of judgment or execution— 10 must accord with the procedure of the state where the court is located, but a federal statute 11 governs to the extent it applies.” Id. Thus, in ruling on a Judgment Creditors’ Application, 12 the Court follows California’s statutory provisions for the enforcement of judgments, 13 known collectively as the Enforcement of Judgments Law, as set forth in California Code 14 of Civil Procedure sections 680.010 through 724.260. 15 Section 708.110 of the California Code of Civil Procedure authorizes a judgment 16 creditor to conduct a judgment debtor examination and provides as follows: 17 (a) 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 18 appointed by the court, at a time and place specified in the order, to furnish 19 information to aid in enforcement of the money judgment.
20 (b) If the judgment creditor has not caused the judgment debtor to be 21 examined under this section during the preceding 120 days, the court shall make the order upon ex parte application of the judgment creditor. 22
23 (c) If the judgment creditor has caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the 24 order if the judgment creditor by affidavit or otherwise shows good cause 25 for the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte. 26
27 (d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 30 days before the date set for the 28 1 examination. Service shall be made in the manner specified in Section 415.10. Service of the order creates a lien on the personal property of the 2 judgment debtor for a period of one year from the date of the order unless 3 extended or sooner terminated by the court.
4 (e) Except as provided in section 708.111, the order shall contain the 5 following statement in 14-point boldface type if printed or in capital letters if typed: “NOTICE TO JUDGMENT DEBTOR. If you fail to appear at 6 the time and place specified in this order, you may be subject to arrest and 7 punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney's fees incurred by the 8 judgment creditor in this proceeding. 9 10 The Court finds good cause to grant Judgment Creditors’ Application. Judgment 11 Creditors state the purpose of the examination is to determine “the location and 12 identification of all assets of the Judgment Debtor.” [ECF No. 19-1 ¶ 5.] This purpose is 13 permitted under California law governing judgment debtor proceedings. See Cal. Civ. Proc. 14 Code § 708.110(a) (i.e., to “furnish information to aid in the enforcement of the money 15 judgment.”). Moreover, Judgment Debtor appears to reside or have a place of business 16 within the geographical limitations imposed by California’s judgment debtor statute.1 Cal. 17 Civ. Proc. Code § 708.160(b) (“A person sought to be examined may not be required to 18 attend an examination before a court located outside the county in which the person resides 19 or has a place of business unless the distance from the person’s place of residence or place 20 of business to the place of examination is less than 150 miles.”). The court may properly 21 order an examination requiring Mr. Sekerke, as Judgment Debtor’s officer, to appear on 22 behalf of Judgment Debtor. See Cal. Civ. Proc. Code § 708.150 (b) (“If the order to appear 23 for an examination requires the appearance of a specified individual, the specified 24 25 26 1 Judgment Creditors report Mr. Sekerke “resides and/or does business in San Marcos, 27 California” but are silent on the location of Judgment Debtor Commwave Inc. [ECF No. 19-1 ¶ 3.] The Court notes the Writ of Execution provides an address for Judgment Debtor 28 1 individual shall appear for the examination and may be accompanied by one or more 2 officers, directors, managing agents, or other persons familiar with the property and debts 3 of the corporation, partnership, association, trust, limited liability company, or other 4 organization.”). Finally, the Application is properly brought on an ex parte basis because 5 Judgment Creditors have not examined Judgment Debtor within the last 120 days. [ECF 6 No. 19-1 ¶ 4.]; Cal. Civ. Proc. Code § 708.110(b). Accordingly, the Court GRANTS 7 Judgment Creditors’ Application for a judgment debtor examination. 8 Judgment Creditors also seek an order “directing the production of certain 9 documents subject to the ownership and control of Judgment Debtor”2 on the grounds “the 10 current financial statements and records of Commwave Inc., a California corporation, are 11 necessary for a complete examination to be conducted.” [ECF No. 19, 19-2 ¶ 5.] “For a 12 debtor’s examination to be effective, a judgment creditor will generally need to review 13 documents relating to the debtor’s assets.” Lee v. Swansboro Country Prop. Owners Assn., 14 151 Cal. App. 4th 575, 581 (2007). Judgment Creditors, however, do not provide authority 15 for inclusion of an order for production of documents in an initial order requiring an 16 appearance of a judgment debtor for examination under section 708.110.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 TRUSTEES OF THE SAN DIEGO Case No.: 22-cv-01556-RSH-KSC ELECTRICAL PENSION TRUST; 8 TRUSTEES OF THE SAN DIEGO ORDER GRANTING APPLICATION 9 ELECTRICAL HEALH AND WELFARE FOR EXAMINATION OF STANLEY TRUST; and SAN DIEGO ELECTRICAL FRANCIS SEKERKE OFFICER OF 10 INDUSTRY ADMINISTRATIVE JUDGMENT DEBTOR 11 CORPORATION, [ECF No. 19] 12 Plaintiffs, 13 v. 14 COMMWAVE, INC., a California corporation, 15 Defendant. 16 17 18 Before the Court is Plaintiffs/Judgment Creditors Trustees of San Diego Electrical 19 Pension Trust, Trustees of the San Diego Electrical Health and Welfare Trust, and San 20 Diego Electrical Industry Administrative Corporation (collectively, “Judgment Creditors”) 21 Application for Examination of Stanley Francis Sekerke Officer of Judgment Debtor 22 Commwave (the “Application”). [ECF Nos. 19, 19-1 at 2 ¶ 2.] For the reasons set forth 23 below, the Court GRANTS the Application. 24 I. BACKGROUND 25 On January 26, 2024, the Court entered Judgment in favor of Judgment Creditors 26 and against Commwave Inc. (“Judgment Debtor”) in the amount of $42,102.64. [ECF Nos. 27 14, 19-1 ¶ 2.] The Judgment has not been vacated or reversed, and the full amount, 28 exclusive of post judgment interest, remains outstanding. [Id.] 1 On August 13, 2024, Judgment Creditors filed the instant Application for an order 2 directing the appearance of Stanley Francis Sekerke as the Chief Executive Officer of 3 Judgment Debtor. [ECF No. 19.] Judgment Creditors also request production of certain 4 documents “subject to the ownership and control of Judgment Debtor and Mr. Sekerke.” 5 [Id.] 6 II. ANALYSIS 7 Federal Rule of Civil Procedure 69 authorizes federal courts to enforce a money 8 judgment by writ of execution. Fed. R. Civ. P. 69 (a). Rule 69 provides “[t]he procedure 9 on execution—and in proceedings supplementary to and in aid of judgment or execution— 10 must accord with the procedure of the state where the court is located, but a federal statute 11 governs to the extent it applies.” Id. Thus, in ruling on a Judgment Creditors’ Application, 12 the Court follows California’s statutory provisions for the enforcement of judgments, 13 known collectively as the Enforcement of Judgments Law, as set forth in California Code 14 of Civil Procedure sections 680.010 through 724.260. 15 Section 708.110 of the California Code of Civil Procedure authorizes a judgment 16 creditor to conduct a judgment debtor examination and provides as follows: 17 (a) 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 18 appointed by the court, at a time and place specified in the order, to furnish 19 information to aid in enforcement of the money judgment.
20 (b) If the judgment creditor has not caused the judgment debtor to be 21 examined under this section during the preceding 120 days, the court shall make the order upon ex parte application of the judgment creditor. 22
23 (c) If the judgment creditor has caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the 24 order if the judgment creditor by affidavit or otherwise shows good cause 25 for the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte. 26
27 (d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 30 days before the date set for the 28 1 examination. Service shall be made in the manner specified in Section 415.10. Service of the order creates a lien on the personal property of the 2 judgment debtor for a period of one year from the date of the order unless 3 extended or sooner terminated by the court.
4 (e) Except as provided in section 708.111, the order shall contain the 5 following statement in 14-point boldface type if printed or in capital letters if typed: “NOTICE TO JUDGMENT DEBTOR. If you fail to appear at 6 the time and place specified in this order, you may be subject to arrest and 7 punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney's fees incurred by the 8 judgment creditor in this proceeding. 9 10 The Court finds good cause to grant Judgment Creditors’ Application. Judgment 11 Creditors state the purpose of the examination is to determine “the location and 12 identification of all assets of the Judgment Debtor.” [ECF No. 19-1 ¶ 5.] This purpose is 13 permitted under California law governing judgment debtor proceedings. See Cal. Civ. Proc. 14 Code § 708.110(a) (i.e., to “furnish information to aid in the enforcement of the money 15 judgment.”). Moreover, Judgment Debtor appears to reside or have a place of business 16 within the geographical limitations imposed by California’s judgment debtor statute.1 Cal. 17 Civ. Proc. Code § 708.160(b) (“A person sought to be examined may not be required to 18 attend an examination before a court located outside the county in which the person resides 19 or has a place of business unless the distance from the person’s place of residence or place 20 of business to the place of examination is less than 150 miles.”). The court may properly 21 order an examination requiring Mr. Sekerke, as Judgment Debtor’s officer, to appear on 22 behalf of Judgment Debtor. See Cal. Civ. Proc. Code § 708.150 (b) (“If the order to appear 23 for an examination requires the appearance of a specified individual, the specified 24 25 26 1 Judgment Creditors report Mr. Sekerke “resides and/or does business in San Marcos, 27 California” but are silent on the location of Judgment Debtor Commwave Inc. [ECF No. 19-1 ¶ 3.] The Court notes the Writ of Execution provides an address for Judgment Debtor 28 1 individual shall appear for the examination and may be accompanied by one or more 2 officers, directors, managing agents, or other persons familiar with the property and debts 3 of the corporation, partnership, association, trust, limited liability company, or other 4 organization.”). Finally, the Application is properly brought on an ex parte basis because 5 Judgment Creditors have not examined Judgment Debtor within the last 120 days. [ECF 6 No. 19-1 ¶ 4.]; Cal. Civ. Proc. Code § 708.110(b). Accordingly, the Court GRANTS 7 Judgment Creditors’ Application for a judgment debtor examination. 8 Judgment Creditors also seek an order “directing the production of certain 9 documents subject to the ownership and control of Judgment Debtor”2 on the grounds “the 10 current financial statements and records of Commwave Inc., a California corporation, are 11 necessary for a complete examination to be conducted.” [ECF No. 19, 19-2 ¶ 5.] “For a 12 debtor’s examination to be effective, a judgment creditor will generally need to review 13 documents relating to the debtor’s assets.” Lee v. Swansboro Country Prop. Owners Assn., 14 151 Cal. App. 4th 575, 581 (2007). Judgment Creditors, however, do not provide authority 15 for inclusion of an order for production of documents in an initial order requiring an 16 appearance of a judgment debtor for examination under section 708.110. Moreover, under 17 California law, such documents generally may be obtained by a demand for inspection 18 under section 708.030 or “serv[ing] the debtor with both a notice of hearing and a subpoena 19 duces tecum outlining the documents to produced.” Id.; Li v. Yan, 247 Cal. App. 4th 56, 65 20 (2016) (“[A] judgment creditor may obtain documents from a judgment debtor either by 21 subpoena duces tecum or by a discovery request for production.”). Judgment Creditors seek 22 documents related to Judgment Debtor’s assets, which may be properly subpoenaed from 23 Judgment Debtor under California procedural law for production at the debtor’s 24 examination. 25 26
27 2 Judgment Creditors also seek production of documents subject to the ownership of Mr. 28 1 CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED: 3 1. Mr. Sekerke as Chief Executive Officer for Judgment Debtor Commwave, 4 ||Inc. must appear for an examination to furnish information to aid in enforcement of the 5 money judgment on: 6 Date: October 23, 2024 7 Time: 10:00 AM Appearance: In Person 8 Location: United States District Court, Southern District of 9 California James M. Carter and Judith N. Keep U.S. Courthouse 10 333 W. Broadway 11 San Diego, CA 92101 12 Proceedings will be held in JURY ASSEMBLY ROOM 230, located on the Lobby 13 || Level of the Courthouse. 14 2. Judgment Creditor must personally serve this order by a sheriff, marshal, or 15 || registered process server upon the Judgment Debtor within thirty (30) days prior to the date 16 || set for the examination and must file a proof of service with the Court. 17 NOTICE TO JUDGMENT DEBTOR: IF YOU FAIL TO APPEAR AT THE 18 || TIME AND PLACE SPECIFIED IN THIS ORDER, YOU MAY BE SUBJECT TO 19 || ARREST AND PUNISHMENT FOR CONTEMPT OF COURT AND THE COURT 20 || MAY MAKE AN ORDER REQUIRING YOU TO PAY THE REASONABLE 21 || ATTORNEY’S FEES INCURRED BY THE JUDGMENT CREDITOR IN THIS 22 || PROCEEDING.° 23 IT IS SO ORDERED. 24 ||Dated: September 13, 2024 VA rf ale, My. x7 25 HON. MICHELLE M. PETTIT 46 United States Magistrate Judge 27 28 This notice is furnished pursuant to California Code of Civil Procedure § 708.110(e).