Article 2 - Examination Proceedings

California Code of Civil Procedure — §§ 708.110-708.205

Sections (12)

Amended by Stats. 2023, Ch. 562, Sec. 1. (AB 1119) Effective January 1, 2024.

(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 30 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)Except

as provided in section 708.111, 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.”

§ 708.111

Added by Stats. 2023, Ch. 562, Sec. 2. (AB 1119) Effective January 1, 2024.

(a)This section applies to an application pursuant to Section 708.110 by a judgment creditor with a judgment concerning a consumer debt awarded on or after January 1, 2025.

(b)“Consumer debt” as used in this Section means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. Consumer debt does not include debts incurred due to, or obtained by tortious or fraudulent conduct or judgments for unpaid wages, damages, or penalties owed to an employee. Consumer debt does not include rental debt, which means unpaid rent or other unpaid financial obligation

of a tenant under the tenancy that has come due.

(c)Notwithstanding subdivision (e) of Section 708.110, if the order issued pursuant to section 708.110 requires a judgment debtor to appear in a case concerning consumer debt, as indicated by the judgment creditor in the application and order for appearance and examination, the order shall be accompanied by the Judicial Council form containing the list of exemptions from the enforcement judgments adopted pursuant to Section 681.030 and the notice of financial affidavit and financial affidavit forms adopted by the Judicial Council pursuant to subdivision (h). 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, the court may make an order requiring you to pay the reasonable attorney’s fees and costs incurred by the judgment creditor in

this proceeding. Instead of appearing at the examination, you may file a notice of judgment debtor’s financial affidavit in a form prescribed by the court and signed under penalty of perjury and serve copies of all filed documents and the financial affidavit on the judgment creditor no later than 15 days prior to the date set for the examination.”

(d)If the judgment debtor in a case concerning consumer debt states in a financial affidavit, signed under penalty of perjury, that all of their income and assets are exempt, and files with the court a notice of financial affidavit with a proof of service, the court shall cancel the examination and provide notice of cancellation to the parties. If copies of the financial affidavit are not timely served or the notice and proof of service are not timely filed with the court, the court shall not cancel the examination.

(1)Within 15 days

after the filing of the notice and proof of service of the financial affidavit, a judgment creditor who objects to the affidavit shall file with the court a notice of motion for an order determining the need for the debtor to appear for a debtor’s examination. If the notice of motion is not timely filed with the court, the debtor’s examination shall remain canceled.

(2)The notice of motion for an order determining the need for a debtor to appear for a debtor’s examination shall include a declaration executed under oath and include a statement of facts showing good cause why a debtor’s examination is necessary notwithstanding the debtor’s financial affidavit. In an action in which the consumer debt is secured by real property or personal property, a showing of good cause is established when the plaintiff demonstrates that the debtor has not provided the plaintiff with accurate information regarding the location or condition of the security, the

status of insurance on the security, or the status of the taxes due on the security.

(3)The judgment creditor shall file and serve the motion described in paragraph (1) pursuant to Section 1005 and the hearing shall be held pursuant to the same section.

(4)The financial affidavit and motion for an order determining the need for a debtor to appear for a debtor’s examination, as well as any pleading filed in support of the motion and any reply by the judgment debtor, shall constitute the pleadings, subject to the power of the court to permit amendments in the interest of justice.

(5)If no other evidence is offered, the court, if satisfied that sufficient facts are shown by the financial affidavit and the notice of motion, may make its determination thereon. If not satisfied, the court shall order the hearing

continued for the production of other oral or documentary evidence.

(6)At the conclusion of the hearing, the court shall determine by order whether the judgment debtor shall appear for a debtor’s examination. If the judgment debtor is ordered to appear, the judgment creditor shall schedule the time and place of the examination with the court. There shall be no filing fee for the judgment creditor to refile the application and order for appearance and examination for the rescheduled exam. The judgment creditor is not required to serve the application and order by personal service, but may serve them by mail or electronic service at least 30 days before the date set for examination, pursuant to Sections 1013 and 1010.6.

(7)If the examination is canceled because the judgment creditor does not object or for another reason, the judgment creditor shall not file another application and

order for appearance and examination until one year from the date of the prior filed application and order for appearance and examination.

(e)The financial affidavit shall include the following information:

(1)The number of people relying on the judgment debtor for support, including spouse, dependents, and other household members.

(2)Gross monthly income from employment, including withholdings and take home pay.

(3)Total monthly income from all sources other than employment.

(4)Property owned, including cash, bank accounts, real estate equity, vehicles (e.g., cars, motorcycles, and boats), jewelry, securities, certificates of deposit, entity ownership, life insurance policies, and

tax refunds.

(5)Itemized monthly expenses.

(6)Any outstanding debts, including balance owed and to whom.

(7)Any other facts which support the claim of exemption.

(f)In a case concerning consumer debt in which the judgment debtor claims property is exempt pursuant to law exempting property to the extent necessary for the support of the judgment debtor and the spouse and dependents of the judgment debtor, the financial affidavit shall also include the following information. The financial affidavit shall also be signed under penalty of perjury by the spouse of the judgment debtor, unless the spouses are living separate and apart.

(1)The name of the spouse of the judgment debtor.

(2)The age and relationship of all persons dependent upon the judgment debtor or the spouse of the judgment debtor for support.

(3)All sources and the amounts of earnings and other income of the spouse and dependents of the judgment debtor.

(4)A list of the assets of the spouse and dependents of the judgment debtor and the value of such assets.

(5)All outstanding debts of the spouse and dependents of the judgment debtor.

(g)A judgment debtor in a case concerning consumer debt who elects to file a financial affidavit in lieu of appearing before the court for an examination shall serve a copy of all filed documents on the judgment creditor no later than 15 days prior to the date set for

the examination.

(h)The Judicial Council shall adopt a notice of financial affidavit form and a financial affidavit form and revise any existing forms as necessary to implement the requirements of this section.

(i)Notwithstanding Section 708.170, 1209, or 1993, or any other applicable law or court rule, for a case involving consumer debt:

(1)No warrant for arrest or to appear shall be issued for a judgment debtor in a case concerning consumer debt who fails to appear for an examination under this section or to file and serve the judgment debtor’s financial affidavit. In such cases, the court shall issue an order to show cause to determine whether to issue a warrant to compel the attendance of the judgment debtor.

(2)The court shall provide a

judgment debtor who is ordered to appear pursuant to an order to show cause described in paragraph (1) with a reasonable opportunity to complete and file a judgment debtor’s financial affidavit described in subdivision (e). The warrant to compel the attendance of the judgment debtor shall be satisfied by the judgment debtor’s appearance or the filing of a notice of financial affidavit and proof of service pursuant to subdivision (d) certifying that the notice and financial affidavit was served on the judgment creditor.

§ 708.120

Amended by Stats. 1995, Ch. 576, Sec. 3.6. Effective January 1, 1996.

(a)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. The affidavit in support of the judgment creditor’s application may be based on the affiant’s information and belief.

(b)Not less than 10 days prior to the date set for the examination, a copy of the order shall be:

(1)Served personally on the third person.

(2)Served personally or by mail on the judgment debtor.

(c)If the property in the third person’s possession or control in which the judgment debtor has an interest or the debt owed by the third person to the judgment debtor is described in the affidavit or application for an order under subdivision (a) in a manner reasonably adequate to permit it to be identified, service of the order on the third person creates a lien on the judgment

debtor’s interest in the property or on the debt for a period of one year from the date of the order unless extended or sooner terminated by the court.

(d)The judgment debtor may claim that all or any portion of the property or debt is exempt from enforcement of a money judgment by application to the court on noticed motion, filed with the court and personally served on the judgment creditor not later than three days before the date set for the examination. The judgment debtor shall execute an affidavit in support of the application that includes all of the matters set forth in subdivision (b) of Section 703.520. If a claim of exemption is made pursuant to this section, a notice of opposition to the claim of exemption is not required. The court shall determine any claim of exemption made pursuant to this section. Failure of the judgment debtor to make a claim of exemption does not preclude the judgment debtor from later claiming the exemption

unless the property or debt is described in the order in a manner reasonably adequate to permit it to be identified and the judgment debtor receives notice of the examination proceeding at least 10 days before the date set for the examination.

(e)An order made pursuant to subdivision (a) shall contain the following statements in 14-point boldface type if printed or in capital letters if typed:

(1)“NOTICE TO PERSON SERVED. 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.”

(2)“NOTICE TO JUDGMENT DEBTOR. The person in whose favor the judgment was entered in this action claims that the person to be

examined pursuant to this order has possession or control of property which is yours or owes you a debt. This property or debt is as follows: (Description of property or debt).If you claim that all or any portion of this property or debt is exempt from enforcement of the money judgment, you must file your exemption claim in writing with the court and personally serve a copy on the judgment creditor not later than three days before the date set for the examination. You must appear at the time and place set for this examination to establish your claim of exemption or your exemption may be waived.”

(f)An order made pursuant to subdivision (a) is not effective unless, at the time it is served on the third person, the person serving the order tenders to the third person fees for the mileage necessary to be traveled from the third person’s residence to the place of examination. The mileage fees shall be in the same amount generally provided

for witnesses when legally required to attend civil proceedings in the court where the examination proceeding is to be conducted.

§ 708.130

Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.

(a)Witnesses may be required to appear and testify before the court or referee in an examination proceeding under this article in the same manner as upon the trial of an issue.

(b)The privilege prescribed by Article 4 (commencing with Section 970) of Chapter 4 of Division 8 of the Evidence Code does not apply in an examination proceeding under this article.

§ 708.140

Amended by Stats. 1983, Ch. 155, Sec. 19. Effective June 30, 1983. Operative July 1, 1983, by Sec. 32 of Ch. 155.

(a)The examination proceedings authorized by this article may be conducted by a referee appointed by the court. The referee may issue, modify, or vacate an order authorized by Section 708.205, may make a protective order authorized by Section 708.200, and may issue a warrant authorized by Section 708.170, and has the same power as the court to grant adjournments, to preserve order, and to subpoena witnesses to attend the examination, but only the court that ordered the reference has power to do the following:

(1)Punish for contempt

for disobeying an order of the referee.

(2)Make an award of attorney’s fees pursuant to Section 708.170.

(3)Determine a contested claim of exemption or determine a third-party claim under Section 708.180.

(b)Only a member of the State Bar of California is eligible for appointment as a referee pursuant to this article. A person who was duly appointed as a referee prior to July 1, 1983, pursuant to the law in operation at the time of appointment, and who is available to perform the duties of a referee on July 1, 1983, shall be exempt from the requirements of this subdivision.

(c)Nothing in subdivision (a) limits the power of a court to appoint a temporary judge pursuant to Section 21 of Article VI of the California Constitution.

§ 708.150

Amended by Stats. 2021, Ch. 30, Sec. 1. (AB 1580) Effective January 1, 2022.

(a)(1) If a corporation, partnership, association, trust, limited liability company, or other organization is served with an order to appear for an examination, it shall designate to appear and be examined one or more officers, directors, managing agents, or other persons who are familiar with its property and debts.

(2)If a corporation, partnership, association, trust, limited liability company, or other organization served with an order to appear for an examination fails to designate a person to appear pursuant to paragraph (1), the order to appear for an examination shall be deemed to have been made to and served upon the individuals designated in the manner

described in paragraph (2) of subdivision (c).

(b)If the order to appear for an examination requires the appearance of a specified individual, the specified individual shall appear for the examination and may be accompanied by one or more officers, directors, managing agents, or other persons familiar with the property and debts of the corporation, partnership, association, trust, limited liability company, or other organization.

(c)If the order to appear for the examination does not require the appearance of a specified individual, the order shall advise the corporation, partnership, association, trust, limited liability company, or other organization of all of the following:

(1)The organization’s duty to make a

designation under paragraph (1) of subdivision (a).

(2)That the organization’s failure to make a designation under paragraph (1) of subdivision (a) shall result in the order to appear for the examination to be deemed to have been made to, and require the appearance of, the following:

(A)If the organization is a corporation registered with the Secretary of State, a natural person named as the chief financial officer in the corporation’s most recent filing with the Secretary of State. If no one is so named, a natural person named as the chief executive officer in the corporation’s most recent filing with the Secretary of State. If no one is so named, a natural person named as the secretary in the corporation’s most recent filing with the Secretary of State.

(B)If the organization is a limited liability company registered with the Secretary of State, the first natural person named as a manager or member in the limited liability company’s most recent filing with the Secretary of State.

(C)If the organization is a limited partnership registered with the Secretary of State, the first natural person named as a general partner in the limited partnership’s most recent filing with the Secretary of State.

(D)If the organization is not registered with the Secretary of State or the organization’s filings with the Secretary of State do not identify a natural person as described in subparagraph

(A), (B), or (C), a natural person identified by the judgment creditor as being familiar with the property and debts of the organization, together with an affidavit or declaration signed by the judgment creditor that sets forth the factual basis for the identification of the individual. The affidavit or declaration shall be served on the organization together with the order.

(3)That service of an order to appear for an examination upon an organization by any method permitted under this code or the Corporations Code, including service on the agent of the organization for service of process, shall be deemed effective service of the order to

appear upon the individuals identified under subparagraphs (A), (B), (C), and (D) of paragraph (2).

(d)A corporation, partnership, association, trust, limited liability company, or other organization, whether or not a party, may appear at an examination through any authorized officer, director, or employee, whether or not the person is an attorney.

(e)The powers of the court under Section 708.170 extend to natural persons ordered to appear and served pursuant to this section.

(f)This section shall be strictly construed and its requirements may not be varied by local rule or otherwise.

§ 708.160

Amended by Stats. 2005, Ch. 75, Sec. 38. Effective July 19, 2005. Operative January 1, 2006, by Sec. 156 of Ch. 75.

(a)Except as otherwise provided in this section, the proper court for examination of a person under this article is the court in which the money judgment is entered.

(b)A person sought to be examined may not be required to attend an examination before a court located outside the county in which the person resides or has a place of business unless the distance from the person’s place of residence or place of business to the place of

examination is less than 150 miles.

(c)If a person sought to be examined does not reside or have a place of business in the county where the judgment is entered, the superior court in the county where the person resides or has a place of business is a proper court for examination of the person.

(d)If the judgment creditor seeks an examination of a person before a court other than the court in which the judgment is entered, the judgment creditor shall file an application that shall include all of the following:

(1)An abstract of judgment in the form prescribed by Section 674.

(2)An affidavit in support of the application stating the place of residence or place of business of the person sought to be examined.

(3)Any necessary affidavit or showing for the examination as required by Section 708.110 or 708.120.

(4)The filing fee for a motion as provided in subdivision (a) of Section 70617 of the Government Code.

§ 708.170

Amended by Stats. 2023, Ch. 562, Sec. 3. (AB 1119) Effective January 1, 2024.

(a)If an order requiring a person to appear for an examination under subdivision (e) of Section 708.110 was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server, and the person fails to appear:

(1)The court may do either of the following:

(A)Pursuant to a warrant, have the person brought before the court to answer for the failure to appear and may punish

the person for contempt.

(B)Issue a warrant for the arrest of the person who failed to appear as required by the court order, pursuant to Section 1993.

(2)If the person’s failure to appear is without good cause, the judgment creditor shall be awarded reasonable attorney’s fees incurred in the examination proceeding. Attorney’s fees awarded against the judgment debtor shall be added to and become part of the principal amount of the judgment.

(b)A person who willfully makes an improper service of an order for an examination which subsequently results in the arrest pursuant to subdivision (a) of the person who fails to appear is guilty of a misdemeanor.

§ 708.180

Amended by Stats. 1998, Ch. 931, Sec. 95. Effective September 28, 1998.

(a)Subject to subdivision (b), if a third person examined pursuant to Section 708.120 claims an interest in the property adverse to the judgment debtor or denies the debt, the court may, if the judgment creditor so requests, determine the interests in the property or the existence of the debt. The determination is conclusive as to the parties to the proceeding and the third person, but an appeal may be taken from the determination. The court may grant a continuance for a reasonable time for discovery proceedings, the production of

evidence, or other preparation for the hearing.

(b)The court may not make the determination provided in subdivision (a) if the third person’s claim is made in good faith and any of the following conditions is satisfied:

(1)The court would not be a proper court for the trial of an independent civil action (including a creditor’s suit) for the determination of the interests in the property or the existence of the debt, and the third person objects to the determination of the matter under subdivision (a).

(2)At the time an order for examination pursuant to Section 708.120 is served on the third person a civil action (including a creditor’s suit) is pending with respect to the interests in the property or the existence of the debt.

(3)The court

determines that the interests in the property or the existence of the debt should be determined in a creditor’s suit.

(c)Upon application of the judgment creditor made ex parte, the court may make an order forbidding transfer of the property to the judgment debtor or payment of the debt to the judgment debtor until the interests in the property or the existence of the debt is determined pursuant to subdivision (a) or until a creditor’s suit may be commenced and an order obtained pursuant to Section 708.240. An undertaking may be required in the discretion of the court. The court may modify or vacate the order at any time with or without a hearing on such terms as are just.

(d)Upon application of the judgment creditor upon noticed motion, the court may, if it determines that the judgment debtor probably owns an interest in the property or that the debt probably is owed to the

judgment debtor, make an order forbidding the transfer or other disposition of the property to any person or forbidding payment of the debt until the interests in the property or the existence of the debt is determined pursuant to subdivision (a) or until a creditor’s suit may be commenced and an order obtained pursuant to Section 708.240. The court shall require the judgment creditor to furnish an undertaking as provided in Section 529. The court may modify or vacate the order at any time after notice and hearing on such terms as are just.

§ 708.190

Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.

The court may permit a person claiming an interest in the property or debt sought to be applied in an examination proceeding to intervene in the proceeding and may determine the person’s rights in the property or debt pursuant to Section 708.180.

§ 708.200

Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.

In any proceeding under this article, the court may, on motion of the person to be examined or on its own motion, make such protective orders as justice may require.

§ 708.205

Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.

(a)Except as provided in subdivision (b), at the conclusion of a proceeding pursuant to this article, the court may order the judgment debtor’s interest in the property in the possession or under the control of the judgment debtor or the third person or a debt owed by the third person to the judgment debtor to be applied toward the satisfaction of the money judgment if the property is not exempt from enforcement of a money judgment. Such an order creates a lien on the property or debt.

(b)If a third person examined pursuant to Section 708.120 claims an interest

in the property adverse to the judgment debtor or denies the debt and the court does not determine the matter as provided in subdivision (a) of Section 708.180, the court may not order the property or debt to be applied toward the satisfaction of the money judgment but may make an order pursuant to subdivision (c) or (d) of Section 708.180 forbidding transfer or payment to the extent authorized by that section.