California Code of Civil Procedure 708.120 – (a) Upon ex parte application by a judgment creditor who has a …
(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:
Terms Used In California Code of Civil Procedure 708.120
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Arrest: Taking physical custody of a person by lawful authority.
- creditor: means the state or the department or agency of the state seeking to collect the liability. See California Code of Civil Procedure 688.040
- debtor: means the debtor from whom the liability is sought to be collected. See California Code of Civil Procedure 688.040
- Lien: A claim against real or personal property in satisfaction of a debt.
- Person: includes a corporation as well as a natural person. See California Code of Civil Procedure 17
- Property: includes both personal and real property. See California Code of Civil Procedure 17
- Writing: includes printing and typewriting. See California Code of Civil Procedure 17
(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.
(Amended by Stats. 1995, Ch. 576, Sec. 3.6. Effective January 1, 1996.)