Key Decisions

October 2013 – Post-Judgment Discovery Was Improper

(filed under: Key Decisions | October 20, 2013)

Post-Judgment Discovery Was Improper

Fox Johns Lazar Pekin & Wexler APC v. Superior Court
(Cal. Ct. of App., 4th Dist.), filed September 24, 2013, published September 24, 2013

Brewer Corporation, among others, obtained a money judgment against Point Center Financial, Inc. Brewer then served a subpoena duces tecum for the production of documents on the law firm that had been representing Point Center, Fox Johns Lazar Pekin & Wexler, and sought a third party judgment debtor examination of the handling attorney under Code of Civil Procedure Section 708.120.

After various procedural matters in the trial court, it ordered compliance. Fox Johns sought appellate review. It asserted that the requested discovery exceeded the limited scope and purpose of a third party examination as permitted under Section 708.120.

In what the Court of Appeal described as “a matter of first impression,” it held that what the discovery sought was beyond the scope of what Section 708.120 permitted.

Section 708.120 provides a mechanism by which a judgment creditor can examine a third party after a judgment has been rendered in the particular case. It states:

“Upon ex parte application by a judgment creditor who has a money judgment and proof by the judgment creditor by affidavit or otherwise to the satisfaction of the proper court that a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars ($250), the court shall make an order directing the third person to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to answer concerning such property or debt.”

As a result, Point Center’s attorney only had to answer questions relating to: (1) Fox Johns’s possession or control of property in which Point, as the judgment debtor, has an interest; or (2) Fox Johns’s indebtedness to Point if it exceeds $250.

The court rejected Brewer’s assertion that the liberal scope of pre-trial discovery should apply to post-judgment discovery.

Since Brewer sought discovery about the identity of Fox Johns’s client in the Point Center case, about its billings in the case and about matters which might support an alter ego theory against others, its discovery was impermissible.