219 Cal. App. 4th 1210
Cal. Ct. App.2013Background
- Brewer obtained a money judgment against Point Center Financial and pursued postjudgment discovery.
- Brewer sought to examine Wexler (Point's counsel) under CCP §708.120 and served a subpoena duces tecum.
- The trial court ordered Wexler to answer 10 questions and issued a new appearance order for July 25, 2012.
- Fox Johns Lazar Perkin & Wexler objected; the court granted parts of Brewer's motions and ordered document production.
- Fox Johns and Wexler appealed; the court treated the appeal as a writ petition due to unusual circumstances.
- The appellate court held Brewers’ discovery exceeded the scope of §708.120 and granted mandamus relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the orders are appealable | Fox Johns/Wexler: appeal under 904.1(a)(1) or (a)(2). | Brewer: orders are not appealable as preliminary discovery orders. | Treat as petition for writ of mandate; unusual circumstances warrant writ review. |
| Scope of §708.120 examination | Examination may liberalize discovery under enforcement rules. | Examination should be broad to locate debtor's assets. | Examination limited to third party’s possession of debtor's property or debts over $250. |
| Subpoena duces tecum scope under §708.120 | Subpoena seeks relevant documents about the debtor's property or debts. | Documents related to firm’s clients and billing fall within scope. | Subpoena exceeded §708.120 scope; must be curtailed to relevant property or debt. |
Key Cases Cited
- Rogers v. Wilcox, 62 Cal.App.2d 978 (Cal. Ct. App. 1944) (appealability limited; not a final order or final judgment)
- Ahrens v. Evans, 42 Cal.App.2d 738 (Cal. Ct. App. 1941) (postjudgment discovery orders not appealable)
- Olson v. Cory, 35 Cal.3d 390 (Cal. 1983) (treating nonappealable orders as writs in extraordinary circumstances)
- Krikorian Premiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4th 1075 (Cal. Ct. App. 2011) (statutory change from former §963 to §904.1; no substantive change)
- Lee v. Swansboro Country Property Owners Assn., 151 Cal.App.4th 575 (Cal. Ct. App. 2007) (prejudgment discovery principles do not control §708.120 scope)