Board of Trustees of the Kern County Electrical Workers Health & Welfare Trust v. McCaa ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 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. 17 18 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: 3 (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 7 application of the judgment creditor. 8 (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. 11 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 14 order unless extended or sooner terminated by the court. 15 (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. 18 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: 16 (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. 20 (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 24 due to either judgment debtor from third party(s) from January 1, 2019, to the present. 25 (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 28 1 records from January 1, 2019, through the present. 2 (f) All credit card statements from January 1, 2019, through the present. 3 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 24 25 26 ' 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