An examination of an individual judgment debtor in California is the topic of this blog post. An examination of a judgment debtor (JD) Exam is authorized by Code of Civil Procedure section 708.110 which allows a judgment creditor to apply to the court 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.
The term JD Exam will be used in this blog post but a JD Exam is also known by various names in the legal profession including a judgment debtor exam or order to appear for examination (ORAP).
A JD Exam is essentially a post-judgment deposition and is useful in order to identify property in the possession or control of the judgment debtor that can be used to satisfy the judgment. The Courts in California have ruled that the purpose of the JD Exam is to require the judgment debtor to give information regarding their property and the judgment creditor is allowed the widest scope of inquiry concerning all property and business affairs of the judgment debtor.
Code of Civil Procedure section 708.110 states that,
“(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 appointed by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.
(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 application of the judgment creditor.
(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 order if the judgment creditor by affidavit or otherwise shows good cause 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.
(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 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 order unless extended or sooner terminated by the court.
(e) The order shall contain the 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 the time and place specified in this order, you may be subject to arrest and punishment for 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.”
An excellent way to make any JD Exam more effective is to have the judgment creditor request that the judgment debtor produce in court all documents that detail their assets and liabilities. Any person that is a party may be served with a notice to appear and produce documents and other tangible evidence in his or her possession pursuant to Code of Civil Procedure § 1987(b), (c). This notice is also known as a subpoena in lieu of subpoena duces tecum.
The notice to appear and produce documents must be personally served at least 20 days before the examination date (25 days if served by mail.) The notice to appear and produce documents should be served with the examination order (or sooner). See Lee v. Swansboro Country Property Owners Ass’n (2007) 151 Cal.App. 4th 575, 582 (citing text).
I want to stress that you should always provide the witness with a check for the witness fee of $35.00 per day plus the mileage fee of $.20 per mile each way to and from the courthouse at the time that the notice to appear and produce documents is served. If you do not do so the witness cannot be compelled to appear and produce documents.
Attorneys or parties in California that would like to view a portion of a sample 14 page notice to appear and produce documents at hearing designed for an individual judgment debtor in California including brief instructions, citations to case law and statutory authority, sample list of 29 categories of documents to be produced and proof of service sold by the author can see below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
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Copyright 2015 Stan Burman. All rights reserved.
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.