Spring 2012 • Issue 43, page 16
Receiver to Enforce a Judgement: Who Should be Served
By Davidson, Peter*
Q: I have been appointed receiver to enforce a
judgment. I filed a motion in the case which I served on counsel for the
plaintiff (the judgment creditor) and counsel for the defendant (the
judgment debtor). The court denied my motion, without prejudice, stating
that I need to serve the judgment creditor himself and that service on his
counsel was not good enough. What’s going on? I thought service on counsel
for a party constituted service on the party.
A: Prior to the entry of judgment you are correct. Service on
counsel who has appeared for a party in an action constitutes service on
the client. See generally, Cal. Code Civ. P. § 283. The rules
change, however, once a judgment is entered, a fact many counsel, but not
the court in your case, often overlook. The Enforcement of Judgments law,
Cal. Code Civ. P. § 680.010 et. seq., has specific provisions concerning
the manner of service of notices and other papers. With regard to a
judgment creditor, the normal provisions regarding service on the counsel
of record are continued. Cal. Code Civ. P. § 684.010 provides, subject to
some exceptions, that notice or other papers to be served on a judgment
creditor “shall be served on the judgment creditor’s attorney of record
rather than on the judgment creditor if the judgment creditor has an
attorney of record.” The rules change, however, with regard to a judgment
debtor. In order to properly serve a writ, notice, order or other paper on
a judgment debtor the items must be served “on the judgment debtor instead
of the attorney for the judgment debtor.” Cal. Code Civ. P. § 684.020(a).
There is an exception, however, and that is where the judgment debtor has
filed with the court and served on the judgment creditor’s attorney a
request that papers be served on the judgment debtor’s attorney and the
judgment debtor’s attorney has signed a consent to receive papers on
behalf of the judgment debtor. Cal. Code Civ. P. § 684.020(b). The purpose
behind this section is to insure that the judgment debtor has actual
knowledge of the enforcement proceedings. Alcalde v. NAC Real Estate
Investments & Assignments, Inc., 580 F. Supp. 2nd 969, 972 fn. 5 (C.D.
Cal. 2008). Therefore, notice of your motion served on the judgment
debtor’s counsel is not good enough; the judgment debtor has to be served.
To be safe, you should serve the judgment debtor and his counsel.
These provisions apply to you as a receiver in aid of
execution because receivers in aid of execution are appointed pursuant to
the provisions of Article 7 of the Enforcement of Judgments Law. Cal. Code
Civ. P. §§ 708.610 and 708.620.
Prejudgment receivership appointments are made
pursuant to Title 7, “Other Provisional Remedies in Civil Actions,”
specifically, the provisions starting at §564, or provisions in other code
sections such as the California Corporations Code, the Business and
Professions Code , etc.”
*Peter A. Davidson is a Partner of Ervin
Cohen & Jessup LLP a Beverly Hills Law Firm. His practice includes
representing Receivers and acting as a Receiver in State and Federal
Court.
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