Nebel v. Sulak

PDF of opinion


Filed 8/4/99 






Plaintiff and Respondent, 



Defendant and Appellant. 


(Super.Ct.No. TEC 043675) 


APPEAL from the Superior Court of Riverside County.  Sherrill A. Ellsworth, 

Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Reversed with directions. 

Scott J. Raymond for Defendant and Appellant. 

Kirk Barber and Skip Southwick for Plaintiff and Respondent. 

1.  Introduction 

This appeal raises several questions of significance.  First, to what extent may a 

disinterested third party observe a judgment debtor examination, and, as a collateral issue, 

may a non-lawyer conduct a judgment debtor examination to enforce a small claims 



We hold that a judgment debtor examination is a judicial proceeding open to the 

public.  (Code Civ. Proc., §§ 124 and 708.110, subd. (a).) 


  Additionally, the examination 

must be conducted by a judicial officer or a member of the State Bar of California.  (§ 

708.140, subd. (b).)  In the present case, the court erred by granting an injunction, the 

effect of which was entirely to prohibit defendant Joseph Sulak, Sr. (Sulak) from 

attending the subject judgment debtor examinations.  The examinations, all of which took 

place in the courthouse, were not private.  Sulak was entitled to observe the examinations 

in a way that did not unduly interfere with them.  Therefore, the injunction issued against 

Sulak was overly-broad.  Furthermore, Sulak is correct that plaintiff Pat Nebel (Nebel) 

should not be conducting judgment debtor examinations unless she is a member of the 

Bar.  We reverse the judgment. 

2.  Factual and Procedural Background 

The record reflects that Nebel, who is apparently not a licensed attorney, routinely 

conducts judgment debtor examinations at the Three Lakes Judicial District courthouse 

on behalf of judgment creditors in small claims cases.  Beginning in the latter part of 

1997, Sulak, who is a licensed process server, has observed Nebel performing the 

examinations.  Nebel claims his presence disturbs the debtors and interferes with the 

examinations.  The record more particularly shows the following sequence of events. 

On February 18, 1998, Nebel conduct 

ed a judgment debtor examination of Martha 



All further statutory references are to the Code of Civil Procedure, unless 

otherwise stated.


Ann Orta and Anthony Navarro Orta on behalf of  a judgment creditor, The Farm 

Property Owners Association.  The record does not show that Sulak observed this 


On March 4 and 25, 1998, Nebel conducted a judgment debtor examination of 

Mike Oliva on behalf of The Farm Property Owners Association.  On March 25, Sulak 

watched from the back of a courtroom as Nebel completed the examination of Mike 


On May 13, 1998, an attorney, Skip Southwick, conduct 

ed a judgment debtor 

examination of Mario J. Ybarra and Deborah G. Ybarra on behalf of Horsethief Canyon 

Ranch Maintenance Corporation.  Nebel was present to record the debtor’s responses. 

The examination took place in the hallway outside the courtroom.  From a distance of 10 

feet, Sulak observed the examination and refused to depart.  Afterwards Sulak approached 

Nebel and said that he would continue to observe any examinations conducted by Nebel. 

On May 27, 1998, Nebel arrived at the courthouse for a judgment debtor 

examination.  Sulak was present.  Nebel asked for and was granted permission to use a 

vacant room to conduct the examination without interference from Sulak. 

On June 3 and 11, 1998, in superior court, Nebel filed a combined petition for 

injunction prohibiting harassment and application for a temporary restraining order 

directed at Sulak.  On June 29, 1998, the court granted an order to show cause and a 

temporary restraining order.  The order provided that Sulak stay 25 yards away from 

Nebel’s person, residence, and workplace.  Additionally, and somewhat inconsistently,


the order provided that Sulak was prohibited from any area, 10 yards in radius, at the 

Three Lakes courthouse where Nebel conducted debtor’s examinations. 

On July 20, 1998, Sulak filed a response and a cross-complaint for declaratory 

relief and injunction. 

On July 22, 1998, the court conducted a brief hearing in which it questioned both 

the parties.  On July 24, 1998, it then issued its ruling, granting a restraining order and 

ordering that Sulak stay 25 feet away from Nebel.  The duration of the order was for six 

months.  On July 29, 1998, the court also issued a ruling that stated “Petition for Cross- 

Complaint re: Declaratory Relief/Injunction Denied.” 

This appeal followed. 

3.  Discussion 

At the outset, we consider whether the appeal is moot.  We hold it is not for two 

reasons.  First, although the injunction expired on January 24, 1999, the issues are of 

general interest and are likely to recur: 

“‘As a general rule, when an event has occurred pending appeal from a lower court 

judgment which renders it impossible for the appellate court to grant an appellant any 

effectual relief whatever, the appeal will be dismissed as moot.  [Citation.]  There is a 

significant exception to this rule, however, where the appeal raises an important issue that 

is likely to recur, yet evade review.  [Citations.]  If an action involves a matter of 

continuing public interest and the issue is likely to recur, a court may exercise an inherent 

discretion to resolve that issue, even though an event occurring during its pendency


would normally render the matter moot.’”  (Hebert v. Los Angeles Raiders, Ltd. (1991) 

23 Cal.App.4th 414, 421, citing 

Schraer v. Berkeley Property Owners’ Assn. (1989) 207 

Cal.App.3d 719, 728.) 

The instant appeal presents significant issues involving the correct procedures for a 

judgment debtor examination.  Those issues are implicated in Sulak’s cross-complaint, in 

which he seeks in part affirmative relief for Nebel’s alleged unfair business practices.  On 

appeal, Nebel focuses entirely upon the propriety of the injunction and ignores the issue 

of whether she, a non-lawyer, can properly conduct a debtor’s examination.  But this 

question bears on the relief sought by defendant in his cross-complaint and, therefore, 

should not be disregarded.  Applying a strict standard of mootness, such as respondent 

would have us do, would effectively exempt these important questions from judicial 

review.  Accordingly, we decline to dismiss the appeal as moot and instead proceed to a 

consideration of the merits. 

Two statutory schemes are involved:  (1) the statutes governing procedures in 

small claims court and (2) the enforcement of judgments law.  The small claims law 

provides, with certain exceptions not pertinent here, that no party to a small claims action 

can be represented by an attorney.  (§ 116.530.)  Any party not a natural person may be 

represented only through a regular employee, or a duly appointed or elected officer or 

director, who is employed, appointed, or elected for purposes other than solely 

representing the party in small claims court.  (§ 116.530, subds. (b) and (c).)  A 

partnership may be represented by a partner.  (§ 116.530, subd. (c).)  The small claims


law further provides that a judgment debtor shall complete a judgment debtor’s statement 

of assets.  (§ 116.830; Cal. Rules of Court, rule 982.7, subd. (a).)  A small claims 

judgment may also be enforced as provided by the enforcement of judgments law.  (§ 

116.820, subd. (a).) 

Under the enforcement of judgments law, a judgment debtor may be compelled to 

appear before the court or an appointed referee for examination regarding his or her 

assets.  (§ 708.110.)  Only a member of the State Bar of California is eligible for 

appointment as a referee.  (§ 708.140, subd. (b).) 

Additionally, a judgment debtor examination is a public proceeding.  Section 124 

provides:  “. . . the sittings of every court shall be public.”  Interpreting this section, the 

California Supreme Court recently said:  “We believe that the public has an interest, in 


civil cases, in observing and assessing the performance of its public judicial system, and 

that interest strongly supports a general right of access in ordinary civil cases.”  ( 


Subsidiary (KNBC-TV), Inc. v. The Superior Court of Los Angeles County (Locke) 


28, 1999) 1999 Daily Journal D.A.R. 7575, 7586.) 

By application of the foregoing, we reach the following conclusions.  Although no 

party to a small claims action may be represented by an attorney, a judgment creditor in a 

small claims action has two alternatives for the enforcement of a judgment.  Either (1) the 

judgment creditor can seek information by use of the judgment debtor’s statement of 

assets or (2) the judgment creditor may seek to have a debtor examination conducted 

before the court or an appointed referee, i.e., a licensed attorney.  Furthermore, although


debtor examinations often occur informally, in the hallway outside the courtroom or in an 

adjacent room, a debtor examination is a public, not a private, proceeding from which the 

public may not be excluded. 

We next review the propriety of the injunction against Sulak: 

“In order to obtain a section 527.6 injunction, the plaintiff must show by clear and 

convincing evidence that he has been harassed, which is defined as ‘a knowing and 

willful course of conduct directed at a specific person which seriously alarms, annoys, or 

harasses the person, and which serves no legitimate purpose.  The course of conduct must 

be such as would cause a reasonable person to suffer substantial emotional distress, and 

must actually cause substantial emotional distress to the plaintiff.  “Course of conduct” is 

a pattern of conduct composed of a series of acts over a period of time, however short, 

evidencing a continuity of purpose.  Constitutionally protected activity is not included 

within the meaning of “course of conduct.”’  (§ 527.6, subds. (b), (d).) 

“Section 527.6 was passed to supplement the existing common law torts of 

invasion of privacy and intentional infliction of emotional distress by providing quick 

relief to harassment victims threatened with great or irreparable injury.  ( 

Smith v. Silvey 

(1983) 149 Cal.App.3d 400, 405 [197 Cal.Rptr. 15].)  It was enacted to protect the 

individual’s right to pursue safety, happiness and privacy as guaranteed by the California 

Constitution.  (Kobey v. Morton (1991) 228 Cal.App.3d 1055, 1059 [278 Cal.Rptr. 530].)


“Section 527.6 has been used where the victim has been stalked, threatened or 

otherwise seriously harassed.  [Citations.]”  (Grant v. Clampitt (1997) 56 Cal.App.4th 

586, 591-592.) 

In the present case, the court ultimately granted an injunction prohibiting Sulak 

from being within 25 feet of Nebel.  But there are several problems with the injunction 

because there is not substantial evidence of harassing conduct.  ( 

Schild v. Rubin (1991) 

232 Cal.App.3d 755, 762.) 

First, even if Nebel had possessed the authority to conduct debtor examinations, 

the injunction was overbroad, encompassing lawful activity by Sulak.  Because a debtor 

examination is a public proceeding, Sulak had the right to observe any examination, 

whether performed by Nebel or an attorney.  (See 

Smith v. Silvey (1983) 149 Cal.App.3d 

400, 406-407 [§ 527.6 inapplicable where activities complained of were an exercise of 

the constitutional right to petition for redress of grievances] and 

H-CHH Associates v. 

Citizens for Representative Government (1987) 193 Cal.App.3d 1193, 1221 [approaching 

mall patrons, as opposed to obstructing or impeding them, is constitutionally-protected 

activity and not subject to prohibition under § 527.6].) 

Furthermore, while it is possible an injunction could have been issued upon a 

proper showing that Sulak engaged in harassing conduct, that showing was not made 

here.  (Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528, 1546.)  Instead, 

the record reflects that, on one occasion, Sulak watched from the back of a courtroom 

while Nebel performed an examination.  On another occasion, while the debtor


examination was conducted by an attorney, Skip Southwick, Sulak did nothing more than 

quietly observe the proceeding.  No evidence demonstrated that he threatened, harassed, 

otherwise interfered with the examination, or did anything other than what he was legally 

entitled to do.  Neither Southwick, nor the debtors being examined, the Ybarras, sought 

an injunction against Sulak.  And based on this second incident, Nebel, who was present 

only to transcribe the answers of the Ybarras, did not have standing to seek an injunction. 

Under these circumstances, there has not been a proper showing entitling Nebel to an 


4.  Disposition 

After reviewing the record and the pertinent law, we hold that the lower court 

abused its discretion and erred when it granted an injunction to Nebel and dismissed 

Sulak’s cross-complaint.  We reverse the judgment and remand to the lower court for 

further proceedings in accordance with our opinion.  As the prevailing party, Sulak shall 

be entitled to recover his costs. 




We concur: 


P. J. 




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