Pacific Bell Telephone Company et al v. 88 Connection Corporation, No. 3:2015mc80135 - Document 27 (N.D. Cal. 2016)

Court Description: ORDER GRANTING JUDGMENT CREDITORS' MOTION TO CONTINUE EXAMINATIONS OF SIMON WONG, SENIOR OFFICER OF JUDGMENT DEBTOR 88 CONNECTION CORPORATIONS, AND CHARLIE ZHAO PRESIDENT AND/OR CHIEF EXECUTIVE OFFICER OF JUDGMENT DEBTOR 88 CONNECTION CORPORA TION: Re 26 Proposed Order,, filed by BellSouth Telecommunications, LLC, The Ohio Bell Telephone Company, Nevada Bell Telephone Company, Wisconsin Bell, Inc., Southwestern Bell Telephone Company, Illinois Bell Telephone Company, Pac ific Bell Telephone Company, Indiana Bell Telephone Company, Incorporated. Judgment Debtor Exam set for 8/22/2016 at 9:30 AM in Courtroom C, 15th Floor, San Francisco. Judgment Debtor Exam set for 8/23/2016 at 9:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Signed by Magistrate Judge Laurel Beeler on 5/11/2016. (lsS, COURT STAFF) (Filed on 5/11/2016)
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Pacific Bell Telephone Company et al v. 88 Connection Corporation 1 2 3 4 5 6 7 8 9 10 11 12 Doc. 27 MAYER BROWN LLP DEMETRIOS G. METROPOULOS (pro hac vice) demetro@mayerbrown.com 71 South Wacker Drive Chicago, Illinois 60606 Telephone: (312) 701-8479 Facsimile: (312) 706-8658 ANNE M. SELIN (SBN 270634) aselin@mayerbrown.com Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, California 94306-2112 Telephone: (650) 331-2000 Facsimile: (650) 331-2060 Attorneys for Plaintiffs Pacific Bell Telephone Company; BellSouth Telecommunications, LLC; Southwestern Bell Telephone Company; Illinois Bell Telephone Company; Indiana Bell Telephone Company, Incorporated; Nevada Bell Telephone Company; The Ohio Bell Telephone Company; and Wisconsin Bell, Inc. 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 17 18 19 20 21 Pacific Bell Telephone Company, BellSouth Telecommunications, LLC, Southwestern Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, The Southern New England Telephone Company, and Wisconsin Bell, Inc., 22 23 24 25 Plaintiffs, Case No: 3:15-mc-80135-LB [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ MOTION TO CONTINUE EXAMINATIONS OF SIMON WONG, SENIOR OFFICER OF JUDGMENT DEBTOR 88 CONNECTION CORPORATION, AND CHARLIE ZHAO, PRESIDENT AND/OR CHIEF EXECUTIVE OFFICER OF JUDGMENT DEBTOR 88 CONNECTION CORPORATION v. 88 Connection Corporation, Defendant. 26 27 28 [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ EX PARTE APPLICATION TO CONTINUE EXAMINATIONS OF SIMON WONG AND CHARLIE ZHAO, CASE NO. 3:15-MC-80135-LB Dockets.Justia.com 1 INTRODUCTION 2 On May 15, 2015, Pacific Bell Telephone Company, BellSouth Telecommunications, 3 LLC, Southwestern Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell 4 Telephone Company, Incorporated, Nevada Bell Telephone Company, The Ohio Bell Telephone 5 Company, and Wisconsin Bell, Inc. (hereinafter referred to as “the AT&T ILECs” or “Judgment 6 Creditors”) registered a Foreign Judgment. ECF No. 1. The Foreign Judgment is a court order 7 issued by the United States District Court for the Southern District of California, San Diego 8 Division, Civil Action No. 13-cv-01157-L-KSC entering a default judgment against 88 9 Connection Corporation in the amount of Four Million Thirteen Thousand Four Hundred Fifty- 10 Nine Dollars ($4,013,459.00). On July 29, 2015, this Court issued an Abstract of Judgment. 11 ECF No. 5. On August 5, 2015, the AT&T ILECs filed an Application for an Order for the 12 Appearance and Examination of Charlie Zhao, President and/or Chief Executive Officer of 13 Judgment Debtor 88 Connection Corporation, and Mr. Zhao was examined on September 23, 14 2015. ECF No. 15. 15 On November 4, 2015, the AT&T ILECs filed an Application for the debtor exams of 16 Simon Wong, an officer of 88 Connection, and an additional examination of Mr. Zhao, which the 17 Court granted on November 6, 2015. ECF Nos. 16-18. The debtor exams were scheduled for 18 December 8 and 9, 2015 (Dkt. 18). However, the AT&T ILECs were unable to effectuate 19 personal service on Mr. Wong or Mr. Zhao, despite numerous attempts, and duly informed the 20 Court that the December 8 and 9, 2015 hearing dates should be postponed. On December 4, 21 2015, the Court ordered that Mr. Wong and Mr. Zhao appear for debtor exam hearings on 22 February 23 and February 24, 2016, respectively. ECF No. 22. On February 17, 2016, at the 23 request of the AT&T ILECs, the Court continued those hearing dates to May 16, 2016 and May 24 17, 2016, respectively. ECF No. 25. To date, the AT&T ILECs have been unable to effectuate 25 any personal service on Mr. Wong or Mr. Zhao. 26 DISCUSSION 27 Debtor examination proceedings “permit the judgment creditor to examine the judgment 28 debtor, or third persons who have property of or are indebted to the judgment debtor, in order to 2 [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ EX PARTE APPLICATION TO CONTINUE EXAMINATIONS OF SIMON WONG AND CHARLIE ZHAO, CASE NO. 3:15-MC-80135-LB 1 discover property and apply it toward the satisfaction of the money judgment.” Imperial Bank 2 v.Pim Elec., Inc., 33 Cal. App. 4th 540, 546-57, 39 Cal. Rptr. 2d 432, 437 (1995); Alcalde v. NAC 3 Real Estate Invs. & Assignments, Inc., 580 F. Supp. 2d 969, 970 (C.D. Cal. 2008). A judgment 4 for money entered by a district court may be registered in any other district court once the 5 judgment is final by filing a certified copy of such judgment in the other district. 28 U.S.C. § 6 1963. Under California law, all assets of a judgment debtor are subject to enforcement except as 7 otherwise provided by law. Cal. Civ. Proc. Code § 695.010(a). 8 Rule 69(a)(1) of the Federal Rules of Civil Procedure provides in pertinent part: “[t]he 9 procedure on execution – and in proceedings supplementary to and in aid of judgment or 10 execution – must accord with the procedure of the state where the court is located, but a federal 11 statute governs to the extent that it applies.” 12 Procedure provides in pertinent part: “[i]n aid of the judgment or execution, the judgment creditor 13 or a successor in interest whose interest appears of record may obtain discovery from any person 14 – including the judgment debtor — as provided in these rules or by the procedure of the state 15 where the court is located.” In turn, Section 708.110 of the California Code of Civil Procedure 16 provides: 17 18 19 20 21 22 23 24 25 26 27 28 Rule 69(a)(2) of the Federal Rules of Civil (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 an 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 directors or a court rule to 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 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 3 [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ EX PARTE APPLICATION TO CONTINUE EXAMINATIONS OF SIMON WONG AND CHARLIE ZHAO, CASE NO. 3:15-MC-80135-LB 1 2 3 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. 4 Cal Civ. Proc. Code § 708.110 (a)-(e). Section 708.160(b) of the California Code of Civil 5 Procedure also provides that: “[a] person sought to be examined may not be required to attend an 6 examination before a court located outside the county in which the person resides or has a place 7 of business unless the distance from the person’s place of residence or place of business to the 8 place of examination is less than 150 miles.” 9 The Court finds that the AT&T ILECs have satisfied the requirements of 28 U.S.C. 10 § 1963 because the AT&T ILECs filed a certified copy of the order of the United States District 11 Court for the Southern District of California, San Diego Division, with this Court to obtain 12 enforcement of that court’s judgment in the amount of $4,013,459.00. ECF No. 1. Additionally, 13 the AT&T ILECs’ application sets forth the showing required by Federal Rule of Civil Procedure 14 69(a)(2) and the applicable provisions of the California Code of Civil Procedure §§ 708.110 and 15 708.160. 16 On May 10, 2016, the AT&T ILECs and Judgment Creditors filed an Ex Parte 17 Application to Continue Examinations of Simon Wong, Senior Officer of Judgment Debtor 88 18 Connection Corporation, and Charlie Zhao, President and/or Chief Executive officer of judgment 19 debtor 88 Connection Corporation. Judgment Creditors requested an extension on the basis that 20 Mr. Wong and Mr. Zhao have not been personally served and additional time is needed to 21 effectuate personal service and investigate other potentially viable avenues to do so. 22 23 24 Accordingly, IT IS HEREBY ORDERED that: 1. The prior hearing dates for the examinations of Mr. Simon Wong and Mr. Charlie Zhao, respectively, are hereby vacated. ECF No. 25. 25 2. Mr. Simon Wong, Senior Officer of Judgment Debtor 88 Connection Corporation, 26 shall appear personally on August 22, 2016, at 9:30 a.m. in Courtroom C on 27 the 15th Floor of the United States District Courthouse, located at 450 28 Golden Gate Avenue, Phillip Burton Federal Building, San Francisco, 4 [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ EX PARTE APPLICATION TO CONTINUE EXAMINATIONS OF SIMON WONG AND CHARLIE ZHAO, CASE NO. 3:15-MC-80135-LB 1 California 94102, to furnish information to aid in the enforcement of a money 2 judgment by answering questions about 88 Connection Corporation and its real 3 and personal property; 4 3. Mr. Charlie Zhao, President and/or Chief Executive Officer of Judgment Debtor 5 88 Connection Corporation shall appear personally on August 23, 2016, at 9:30 6 a.m. in Courtroom C on the 15th Floor of the United States District 7 Courthouse, located at 450 Golden Gate Avenue, Phillip Burton Federal 8 Building, San Francisco, California 94102, to furnish information to aid in the 9 enforcement of a money judgment by answering questions about 88 Connection 10 Corporation and its real and personal property; and 11 4. The AT&T ILECs must service this Order upon Simon Wong and Charlie Zhao, 12 officers of Judgment Debtor 88 Connection Corporation personally not less than 13 ten (10) days before the date set for the examination and must file a 14 certificate of such service with the court. 15 5. Pursuant to this Court’s order dated December 4, 2015 (ECF No. 23), One Legal, 16 LLC, registered California process servers, are specially appointed to serve this 17 and any Order for Appearance and Examination of Simon Wong, Senior Officer 18 of Judgment Debtor 88 Connection Corporation, and Charlie Zhao, President 19 and/or Chief Executive Officer of Judgment Debtor 88 Connection Corporation. 20 21 NOTICE TO JUDGMENT DEBTOR. IF YOU FAIL TO APPEAR AT THE 22 TIME AND PLACE SPECIFIED IN THIS ORDER, YOU MAY BE 23 SUBJECT TO ARREST AND PUNISHMENT FOR CONTEMPT OF 24 COURT AND THE COURT MAY MAKE AN ORDER REQUIRING YOU 25 TO PAY THE REASONABLE ATTORNEY’S FEES INCURRED BY THE 26 JUDGMENT CREDITOR IN THIS PROCEEDING.1 27 28 1 This notice is furnished pursuant to California Code of Civil Procedure § 708.110(e). 5 [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ EX PARTE APPLICATION TO CONTINUE EXAMINATIONS OF SIMON WONG AND CHARLIE ZHAO, CASE NO. 3:15-MC-80135-LB 1 IT IS SO ORDERED. 2 3 Dated: May 11, 2016 United States Magistrate Judge Laurel Beeler 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 [PROPOSED] ORDER GRANTING JUDGMENT CREDITORS’ EX PARTE APPLICATION TO CONTINUE EXAMINATIONS OF SIMON WONG AND CHARLIE ZHAO, CASE NO. 3:15-MC-80135-LB