Preview
Electronically Filed
3/20/2024 4:48 PM
Superior Court of California
County of Stanislaus
1 MARSHALL R. COLE (SBN 266907) Clerk of the Court
NEMECEK & COLE By: Tyler Powers Jones, Deputy
2 A Professional Corporation
16255 Ventura Boulevard, Suite 300 $60 PAID
3 Encino, California 91436-2300
Tel: (818) 788-9500 / Fax: (818) 501-0328
4
Attorneys for Plaintiff and Judgment Creditors
5 DAVIS BOAT MANUFACTURING, INC.
DBA NORDIC BOATS
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7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 FOR THE COUNTY OF STANISLAUS
10
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 DAVIS BOAT MANUFACTURING-NORDIC, Case No.: 9000168
INC. dba NORDIC BOATS, an Arizona Assigned to Hon. John R. Mayne
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 corporation
13 Plaintiff, EX PARTE APPLICATION FOR ORDER
PERMITTING SHERIFF TO SEIZE
14 v. PERSONAL PROPERTY IN A PRIVATE
PLACE PURSUANT TO CALIFORNIA
15 WELDON SMITH, JR., an individual; and CCP §699.030(b); DECLARATION OF
DOES 1 through 20, inclusive, MARSHALL R. COLE; [PROPOSED]
16 ORDER
Defendant.
17 DATE: March 22, 2024
18 TIME: 8:15 a.m.
DEPT: 21
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EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
1 PLEASE TAKE NOTICE THAT on March 22, 2024 at 8:15 a.m. in Department 21
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of the above-entitled Court located at 801 10th Street, Modesto, California, Plaintiffs DAVIS
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BOAT MANUFACTURING-NORDIC, INC. dba NORDIC BOATS, INC., a California
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Corporation (“Davis”); will apply ex parte for an Order authorizing the Stanislaus County Sheriff
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6 or Levying Officer to seize personal property in the possession of Defendant and Judgment Debtor
7 Weldon Smith, Jr. (“Defendant”). Davis seeks a “private place order” following the judgment
8 entered on February 14, 2020, in the amount of $189,900 against Defendant and subsequent July
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
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22, 2020, attorney fee award in the amount of $188,286. Interest has accrued at the legal rate since
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TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
entry of these orders.
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Good cause exists to grant the following ex parte application for the following reasons:
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12
1. California Code of Civil Procedure section 699.030(b) authorizes the Court to issue
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14 an order directing the Levying Officer to seize the property in the judgment debtor’s home or other
15 “private place” on an ex parte basis upon a showing that the creditor has established “probable
16 cause” to believe that the property is located in the place described.
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2. Plaintiffs seek to have this private place order issued to seize a 2011 Nordic 42
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Inferno bearing Vessel Hull Identification Number (“HIN”) NDCL6837K011 (the “Boat”); and a
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2010 Competitive Boat Trailer bearing Trailer Vehicle Identification Number (“VIN”)
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21 13AC42307AC775210 (the “Trailer”).
22 3. On July 13, 2017, this Court issued a Preliminary Injunction which prevented
23 Defendant from hiding or concealing the Boat and Trailer. Defendant violated this Order and was
24 held in contempt of court and sentenced to five days in jail on December 7, 2020. In addition, on
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August 12, 2020, this Court issued a Turnover Order in Aid of Execution of Judgment requiring
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that Defendant turnover the Boat and Trailer. Defendant also failed to comply with this order.
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///
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EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
1
2 3. Pursuant to California Rule of Court 3.1204(d)(3) ex parte notice WAS NOT
3 provided to Defendant or his counsel of record because Defendant has no ability to oppose this Ex
4 Parte Application and Plaintiffs have reason to believe that upon receipt of said notice Defendant
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would change title to the vehicle and/or transfer the location of the vehicle to a new location to
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avoid Plaintiffs lawful right to seize said vehicles. (Cole Dec. ¶ 6).
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8 DATED: March 20, 2024 NEMECEK & COLE
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9
10 By:
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
MARSHALL R. COLE
11 Attorneys for Plaintiff
NEMECEK & COLE
A PROFESSIONAL CORPORATION
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EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
MEMORANDUM OF POINTS AND AUTHORITIES
1
2 I. INTRODUCTION
3 Plaintiffs and Judgment Creditors DAVIS BOAT MANUFACTURING-NORDIC, INC.
4 dba NORDIC BOATS (“Davis”)., an Arizona Corporation (“Judgment Creditors”) hereby apply
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ex parte to the Court for an Order authorizing the Stanislaus County Sheriff or Levying Officer to
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seize personal property in the possession of Defendant and Judgment Debtor Weldon Smith Jr.
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(“Defendant”). Davis seeks a “private place order” following the judgment entered on February
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14, 2020 in the amount of $189,900 against Defendant and subsequent July 22, 2020 attorney fee
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9
10 award in the amount of $188,286.
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 Judgment Creditors seek the Court’s assistance in enforcing its judgment against
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 Defendant. The location to be searched is the property located at 27431 State Highway 33
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Newman, California 95360 which is located within Stanislaus County. The item to be seized at
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this location is a Boat and Trailer described as a 2011 Nordic 42 Inferno bearing Vessel Hull
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Identification Number (“HIN”) NDCL6837K011 (the “Boat”); and a 2010 Competitive Boat
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17 Trailer bearing Trailer Vehicle Identification Number (“VIN”) 13AC42307AC775210 (the
18 “Trailer”).
19 II. FACTUAL BACKGROUND
20 In September 2016, Davis brought the instant action, suing Defendant for breach of
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contract related to the sale of a boat and trailer. A jury trial commenced in December 2019 and the
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jury returned a unanimous verdict in favor of Davis Boats and against Defendant. Judgment was
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entered against Defendant. (Declaration of Marshall R. Cole “Cole Decl.” ¶ 2, Exh. 1.) Defendant
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25 subsequently appealed the judgment, and his appeal was dismissed based upon the disentitlement
26 doctrine as a result of being held in contempt of court by this court.
27 Prior to the entry of Judgment, in July 2017, this Court issued a preliminary injunction
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restraining Defendant from concealing or hiding the boat and trailer. Defendant violated the
4
EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
injunction by concealing the Boat and Trailer. (Cole Decl. ¶ 3, Exh. 2.) Following entry of
1
2 Judgment, on August 12, 2020, this Court issued a Turnover Order in Aid of Execution of
3 Judgment ordering Defendant to transfer the Boat and Trailer to the Stanislaus County Sheriff’s
4 Office. Defendant failed to comply with the Turnover Order. (Cole Decl. ¶ 3, Exh. 3.)
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On, December 17, 2020 this Court then found that Defendant had willfully violated the
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July 2017 preliminary injunction by concealing or hiding the boat and trailer and, held Defendant
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in contempt of court and sentenced him to jail with an order to pay a $1,000 fine. Defendant did
8
not go to jail; he never complied with the order. (Cole Decl. ¶ 4.)
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9
10 While this action was ongoing, Defendant initiated a dissolution of marriage proceeding
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 involving his spouse Kanisha Smith bearing Stanislaus Superior Court Case No. FL-21-000828.
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 Davis filed a Notice of Lien in this proceeding. In connection with the dissolution proceeding,
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Counsel for Davis has monitored the dissolution proceeding and has had conversations with Ms.
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Smith’s counsel. During these conversations, it came to light that Defendant has the Boat and
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Trailer in his possession and is hiding the Boat and Trailer in a storage facility located at 27431
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17 Highway 33, Newman Ca 95360 which is within Stanislaus County. (Cole Decl. ¶ 5.) This
18 information comes directly from Ms. Smith and her counsel. On February 20, 2024, Counsel even
19 provided photographs of the location of the storage wherein he stated, “this is the unit where the
20 Boat is being kept”. The unit is large enough to house the Boat and Trailer. (Cole Decl. ¶ 6; Exh.
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4.)
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III. ARGUMENT
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California Code of Civil Procedure section 699.030(b) authorizes the Court to issue an
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25 order directing the Levying Officer to seize the property in the judgment debtor’s home or other
26 “private place” on an ex parte basis. The application must describe with particularity the property
27 sought to be levied upon and the “private place” where it is located, according to the judgment
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EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
creditor’s best knowledge, information and belief. The judgment creditor must establish “probable
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2 cause” to believe that the property is located in the place described.
3 A. Description and Value of Personal Property to be Seized
4 As noted above, the items to be seized are:
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2011 Nordic 42 Inferno bearing Vessel Hull Identification Number (“HIN”)
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NDCL6837K011 (the “Boat”); and 2010 Competitive Boat Trailer bearing Trailer Vehicle
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Identification Number (“VIN”) 13AC42307AC775210 (the “Trailer”).
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B. Evidence Supporting Probable Cause
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9
10 Counsel for Davis has monitored the dissolution proceeding involving Defendant and has
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 periodically had conversations with Ms. Smith’s counsel regarding Defendant’s assets. During
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 these conversations, counsel for Ms. Smith stated that Defendant has the Boat and Trailer in his
13
possession and is hiding the Boat and Trailer in a storage facility located at 27431 Highway 33,
14
Newman Ca 95360. This information comes directly from Ms. Smith and her counsel. Ms. Smith
15
knows about the storage facility and the location of the Boat and Trailer because she has received
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17 billing statements and information regarding Defendant’s use of this facility. On February 20,
18 2024, Counsel even provided photographs of the location of the storage wherein he stated “this is
19 the unit where the Boat is being kept”. The unit which is large enough to house the Boat and
20 Trailer. (Cole Decl. ¶¶ 5-6; Exh. 4.).
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Here, Davis has established the location of the Boat and Trailer based upon its best
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knowledge, information and belief and has established this by “probable cause”. Davis has been
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trying to recover the Boat and Trailer since 2017 and Defendant has engaged in a pattern of
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25 conduct resulting in his contempt of court, having been ordered to turn himself into jail, and
26 having an appeal dismissed based upon the disentitlement doctrine. Defendant has displayed a
27 pattern of conduct that cannot be tolerated. Through years of searching, Davis has finally obtained
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EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
reliable information as to the location of the Boat and Trailer and this Court should grant the
1
2 requested relief.
3 C. The Court May Issue an Ex Parte Order
4 California Code of Civil Procedure section 699.030(b) authorizes the Court to issue an
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order authorizing the seizure of property at a private place on an ex parte basis. “The Judgment
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creditor may apply to the Court ex parte, or on noticed motion if the Court so directs or a Court
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rule so requires, for an order directing the levying officer to seize the property in the private
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place.”
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
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10 IV. CONCLUSION
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 Judgment Creditors respectfully request that the Court issue an Order authorizing the
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 Stanislaus County Sheriff or Levying Officer to Seize the Boat and Trailer in Defendant’s
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possession described above and authorizing the Levying Officer to enter the storage facility if
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necessary to recover the property.
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17 Dated: March 20, 2024 NEMECEK & COLE
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19 By:_ ____ ______________________
MARSHALL R. COLE
20 Attorneys for Plaintiffs
DAVIS BOAT MANUFACTURING-NORDIC,
21 INC. dba NORDIC BOATS
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EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
1 DECLARATION OF MARSHALL R. COLE
2 I, MARSHALL R. COLE, DECLARE:
3 1. I am an attorney duly licensed to practice law in the State of California. I am
4 employed by Nemecek & Cole, a professional corporation, the attorneys for Plaintiff and
5 Judgement Creditors, DAVID BOAT MANUFACTURING-NORDIC, INC. dba NORDIC
6 BOATS (“Davis”) in this action. I have personal knowledge of the matters set forth in this
7 declaration, and I could testify competently to them.
8 2. In September 2016, Davis brought the instant action, suing Defendant for breach of
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 contract related to the sale of a boat and trailer. A jury trial commenced in December 2019 and the
10 jury returned a unanimous verdict in favor of Davis Boats and against Defendant. Judgment was
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 entered against Defendant. Attached hereto as Exhibit 1 is a true and correct copy of the
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 Judgment. Defendant subsequently appealed the judgment, and his appeal was dismissed based
13 upon the disentitlement doctrine as a result of being held in contempt of court by this court.
14 3. Prior to the entry of Judgment, in July 2017, this Court issued a preliminary
15 injunction restraining Defendant from concealing or hiding the boat and trailer. Defendant violated
16 the injunction by concealing the Boat and Trailer. Attached hereto as Exhibit 2 is a true and
17 correct copy of the Preliminary Injunction. Following entry of Judgment, on August 12, 2020, this
18 Court also issued a Turnover Order in Aid of Execution of Judgment ordering Defendant to
19 transfer the Boat and Trailer to the Stanislaus County Sheriff’s Office. Defendant failed to comply
20 with the Turnover Order. Attached hereto as Exhibit 3 is a true and correct copy of the Turnover
21 Order.
22 4. On, December 17, 2020 this Court found that Defendant had willfully violated the
23 July 2017 preliminary injunction by concealing or hiding the boat and trailer and, held Defendant
24 in contempt of court and sentenced him to jail with an order to pay a $1,000 fine. Defendant did
25 not go to jail; he never complied with the order.
26 5. While this action was ongoing, Defendant initiated a dissolution of marriage
27 proceeding involving his spouse Kanisha Smith bearing Stanislaus Superior Court Case No. FL-
28 21-000828. Davis filed a Notice of Lien in this proceeding. In connection with the dissolution
8
EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY
4115796.2
1 proceeding, Counsel for Davis has monitored the dissolution proceeding and has had
2 conversations with Ms. Smith’s counsel. During these conversations, it came to light that
3 Defendant has the Boat and Trailer in his possession and is hiding the Boat and Trailer in a storage
4 facility located at 27431 Highway 33, Newman Ca 95360 which is within Stanislaus County.
5 Defendant pays rent at this storage facility.
6 6. This information comes directly from Ms. Smith and her counsel. Ms. Smith knows
7 about the storage facility and the location of the Boat and Trailer because she has received billing
8 statements and information regarding Defendant’s use of this facility. On February 20, 2024,
16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300
9 Counsel even provided photographs of the location of the storage wherein he stated “this is the
10 unit where the Boat is being kept”. The unit which is large enough to house the Boat and Trailer.
TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
11 Attached hereto as Exhibit 4 is a true and correct copy of the email from Ms. Smith’s counsel.
NEMECEK & COLE
A PROFESSIONAL CORPORATION
12 Notice of Ex Parte Application
13 7. Pursuant to California Rule of Court 3.1204(d)(3) Ex Parte notice WAS NOT
14 provided to Smith or his counsel of record. The reason for this is that Smith has no ability to
15 oppose the instant Ex Parte Application and Plaintiff has strong reason to believe that upon receipt
16 of said notice Davis would transfer the location of the Boat and Trailer to a new location to avoid
17 Davis’ lawful right to seize the Boat and Trailer. In fact, Defendant has gone so far as to disregard
18 this Court’s prior orders and having been held in contempt of court in an effort to prevent Davis
Preview
Electronically Filed 3/20/2024 4:48 PM Superior Court of California County of Stanislaus 1 MARSHALL R. COLE (SBN 266907) Clerk of the Court NEMECEK & COLE By: Tyler Powers Jones, Deputy 2 A Professional Corporation 16255 Ventura Boulevard, Suite 300 $60 PAID 3 Encino, California 91436-2300 Tel: (818) 788-9500 / Fax: (818) 501-0328 4 Attorneys for Plaintiff and Judgment Creditors 5 DAVIS BOAT MANUFACTURING, INC. DBA NORDIC BOATS 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 FOR THE COUNTY OF STANISLAUS 10 TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 DAVIS BOAT MANUFACTURING-NORDIC, Case No.: 9000168 INC. dba NORDIC BOATS, an Arizona Assigned to Hon. John R. Mayne NEMECEK & COLE A PROFESSIONAL CORPORATION 12 corporation 13 Plaintiff, EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE 14 v. PERSONAL PROPERTY IN A PRIVATE PLACE PURSUANT TO CALIFORNIA 15 WELDON SMITH, JR., an individual; and CCP §699.030(b); DECLARATION OF DOES 1 through 20, inclusive, MARSHALL R. COLE; [PROPOSED] 16 ORDER Defendant. 17 DATE: March 22, 2024 18 TIME: 8:15 a.m. DEPT: 21 19 20 21 22 23 24 25 26 27 28 1 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 1 PLEASE TAKE NOTICE THAT on March 22, 2024 at 8:15 a.m. in Department 21 2 of the above-entitled Court located at 801 10th Street, Modesto, California, Plaintiffs DAVIS 3 BOAT MANUFACTURING-NORDIC, INC. dba NORDIC BOATS, INC., a California 4 Corporation (“Davis”); will apply ex parte for an Order authorizing the Stanislaus County Sheriff 5 6 or Levying Officer to seize personal property in the possession of Defendant and Judgment Debtor 7 Weldon Smith, Jr. (“Defendant”). Davis seeks a “private place order” following the judgment 8 entered on February 14, 2020, in the amount of $189,900 against Defendant and subsequent July 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 22, 2020, attorney fee award in the amount of $188,286. Interest has accrued at the legal rate since 10 TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 entry of these orders. 11 Good cause exists to grant the following ex parte application for the following reasons: NEMECEK & COLE A PROFESSIONAL CORPORATION 12 1. California Code of Civil Procedure section 699.030(b) authorizes the Court to issue 13 14 an order directing the Levying Officer to seize the property in the judgment debtor’s home or other 15 “private place” on an ex parte basis upon a showing that the creditor has established “probable 16 cause” to believe that the property is located in the place described. 17 2. Plaintiffs seek to have this private place order issued to seize a 2011 Nordic 42 18 Inferno bearing Vessel Hull Identification Number (“HIN”) NDCL6837K011 (the “Boat”); and a 19 2010 Competitive Boat Trailer bearing Trailer Vehicle Identification Number (“VIN”) 20 21 13AC42307AC775210 (the “Trailer”). 22 3. On July 13, 2017, this Court issued a Preliminary Injunction which prevented 23 Defendant from hiding or concealing the Boat and Trailer. Defendant violated this Order and was 24 held in contempt of court and sentenced to five days in jail on December 7, 2020. In addition, on 25 August 12, 2020, this Court issued a Turnover Order in Aid of Execution of Judgment requiring 26 that Defendant turnover the Boat and Trailer. Defendant also failed to comply with this order. 27 /// 28 2 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 1 2 3. Pursuant to California Rule of Court 3.1204(d)(3) ex parte notice WAS NOT 3 provided to Defendant or his counsel of record because Defendant has no ability to oppose this Ex 4 Parte Application and Plaintiffs have reason to believe that upon receipt of said notice Defendant 5 would change title to the vehicle and/or transfer the location of the vehicle to a new location to 6 avoid Plaintiffs lawful right to seize said vehicles. (Cole Dec. ¶ 6). 7 8 DATED: March 20, 2024 NEMECEK & COLE 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 10 By: TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 MARSHALL R. COLE 11 Attorneys for Plaintiff NEMECEK & COLE A PROFESSIONAL CORPORATION 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. INTRODUCTION 3 Plaintiffs and Judgment Creditors DAVIS BOAT MANUFACTURING-NORDIC, INC. 4 dba NORDIC BOATS (“Davis”)., an Arizona Corporation (“Judgment Creditors”) hereby apply 5 ex parte to the Court for an Order authorizing the Stanislaus County Sheriff or Levying Officer to 6 seize personal property in the possession of Defendant and Judgment Debtor Weldon Smith Jr. 7 (“Defendant”). Davis seeks a “private place order” following the judgment entered on February 8 14, 2020 in the amount of $189,900 against Defendant and subsequent July 22, 2020 attorney fee 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 10 award in the amount of $188,286. TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 Judgment Creditors seek the Court’s assistance in enforcing its judgment against NEMECEK & COLE A PROFESSIONAL CORPORATION 12 Defendant. The location to be searched is the property located at 27431 State Highway 33 13 Newman, California 95360 which is located within Stanislaus County. The item to be seized at 14 this location is a Boat and Trailer described as a 2011 Nordic 42 Inferno bearing Vessel Hull 15 Identification Number (“HIN”) NDCL6837K011 (the “Boat”); and a 2010 Competitive Boat 16 17 Trailer bearing Trailer Vehicle Identification Number (“VIN”) 13AC42307AC775210 (the 18 “Trailer”). 19 II. FACTUAL BACKGROUND 20 In September 2016, Davis brought the instant action, suing Defendant for breach of 21 contract related to the sale of a boat and trailer. A jury trial commenced in December 2019 and the 22 jury returned a unanimous verdict in favor of Davis Boats and against Defendant. Judgment was 23 entered against Defendant. (Declaration of Marshall R. Cole “Cole Decl.” ¶ 2, Exh. 1.) Defendant 24 25 subsequently appealed the judgment, and his appeal was dismissed based upon the disentitlement 26 doctrine as a result of being held in contempt of court by this court. 27 Prior to the entry of Judgment, in July 2017, this Court issued a preliminary injunction 28 restraining Defendant from concealing or hiding the boat and trailer. Defendant violated the 4 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 injunction by concealing the Boat and Trailer. (Cole Decl. ¶ 3, Exh. 2.) Following entry of 1 2 Judgment, on August 12, 2020, this Court issued a Turnover Order in Aid of Execution of 3 Judgment ordering Defendant to transfer the Boat and Trailer to the Stanislaus County Sheriff’s 4 Office. Defendant failed to comply with the Turnover Order. (Cole Decl. ¶ 3, Exh. 3.) 5 On, December 17, 2020 this Court then found that Defendant had willfully violated the 6 July 2017 preliminary injunction by concealing or hiding the boat and trailer and, held Defendant 7 in contempt of court and sentenced him to jail with an order to pay a $1,000 fine. Defendant did 8 not go to jail; he never complied with the order. (Cole Decl. ¶ 4.) 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 10 While this action was ongoing, Defendant initiated a dissolution of marriage proceeding TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 involving his spouse Kanisha Smith bearing Stanislaus Superior Court Case No. FL-21-000828. NEMECEK & COLE A PROFESSIONAL CORPORATION 12 Davis filed a Notice of Lien in this proceeding. In connection with the dissolution proceeding, 13 Counsel for Davis has monitored the dissolution proceeding and has had conversations with Ms. 14 Smith’s counsel. During these conversations, it came to light that Defendant has the Boat and 15 Trailer in his possession and is hiding the Boat and Trailer in a storage facility located at 27431 16 17 Highway 33, Newman Ca 95360 which is within Stanislaus County. (Cole Decl. ¶ 5.) This 18 information comes directly from Ms. Smith and her counsel. On February 20, 2024, Counsel even 19 provided photographs of the location of the storage wherein he stated, “this is the unit where the 20 Boat is being kept”. The unit is large enough to house the Boat and Trailer. (Cole Decl. ¶ 6; Exh. 21 4.) 22 III. ARGUMENT 23 California Code of Civil Procedure section 699.030(b) authorizes the Court to issue an 24 25 order directing the Levying Officer to seize the property in the judgment debtor’s home or other 26 “private place” on an ex parte basis. The application must describe with particularity the property 27 sought to be levied upon and the “private place” where it is located, according to the judgment 28 5 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 creditor’s best knowledge, information and belief. The judgment creditor must establish “probable 1 2 cause” to believe that the property is located in the place described. 3 A. Description and Value of Personal Property to be Seized 4 As noted above, the items to be seized are: 5 2011 Nordic 42 Inferno bearing Vessel Hull Identification Number (“HIN”) 6 NDCL6837K011 (the “Boat”); and 2010 Competitive Boat Trailer bearing Trailer Vehicle 7 Identification Number (“VIN”) 13AC42307AC775210 (the “Trailer”). 8 B. Evidence Supporting Probable Cause 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 10 Counsel for Davis has monitored the dissolution proceeding involving Defendant and has TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 periodically had conversations with Ms. Smith’s counsel regarding Defendant’s assets. During NEMECEK & COLE A PROFESSIONAL CORPORATION 12 these conversations, counsel for Ms. Smith stated that Defendant has the Boat and Trailer in his 13 possession and is hiding the Boat and Trailer in a storage facility located at 27431 Highway 33, 14 Newman Ca 95360. This information comes directly from Ms. Smith and her counsel. Ms. Smith 15 knows about the storage facility and the location of the Boat and Trailer because she has received 16 17 billing statements and information regarding Defendant’s use of this facility. On February 20, 18 2024, Counsel even provided photographs of the location of the storage wherein he stated “this is 19 the unit where the Boat is being kept”. The unit which is large enough to house the Boat and 20 Trailer. (Cole Decl. ¶¶ 5-6; Exh. 4.). 21 Here, Davis has established the location of the Boat and Trailer based upon its best 22 knowledge, information and belief and has established this by “probable cause”. Davis has been 23 trying to recover the Boat and Trailer since 2017 and Defendant has engaged in a pattern of 24 25 conduct resulting in his contempt of court, having been ordered to turn himself into jail, and 26 having an appeal dismissed based upon the disentitlement doctrine. Defendant has displayed a 27 pattern of conduct that cannot be tolerated. Through years of searching, Davis has finally obtained 28 6 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 reliable information as to the location of the Boat and Trailer and this Court should grant the 1 2 requested relief. 3 C. The Court May Issue an Ex Parte Order 4 California Code of Civil Procedure section 699.030(b) authorizes the Court to issue an 5 order authorizing the seizure of property at a private place on an ex parte basis. “The Judgment 6 creditor may apply to the Court ex parte, or on noticed motion if the Court so directs or a Court 7 rule so requires, for an order directing the levying officer to seize the property in the private 8 place.” 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 10 IV. CONCLUSION TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 Judgment Creditors respectfully request that the Court issue an Order authorizing the NEMECEK & COLE A PROFESSIONAL CORPORATION 12 Stanislaus County Sheriff or Levying Officer to Seize the Boat and Trailer in Defendant’s 13 possession described above and authorizing the Levying Officer to enter the storage facility if 14 necessary to recover the property. 15 16 17 Dated: March 20, 2024 NEMECEK & COLE 18 19 By:_ ____ ______________________ MARSHALL R. COLE 20 Attorneys for Plaintiffs DAVIS BOAT MANUFACTURING-NORDIC, 21 INC. dba NORDIC BOATS 22 23 24 25 26 27 28 7 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 1 DECLARATION OF MARSHALL R. COLE 2 I, MARSHALL R. COLE, DECLARE: 3 1. I am an attorney duly licensed to practice law in the State of California. I am 4 employed by Nemecek & Cole, a professional corporation, the attorneys for Plaintiff and 5 Judgement Creditors, DAVID BOAT MANUFACTURING-NORDIC, INC. dba NORDIC 6 BOATS (“Davis”) in this action. I have personal knowledge of the matters set forth in this 7 declaration, and I could testify competently to them. 8 2. In September 2016, Davis brought the instant action, suing Defendant for breach of 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 contract related to the sale of a boat and trailer. A jury trial commenced in December 2019 and the 10 jury returned a unanimous verdict in favor of Davis Boats and against Defendant. Judgment was TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 entered against Defendant. Attached hereto as Exhibit 1 is a true and correct copy of the NEMECEK & COLE A PROFESSIONAL CORPORATION 12 Judgment. Defendant subsequently appealed the judgment, and his appeal was dismissed based 13 upon the disentitlement doctrine as a result of being held in contempt of court by this court. 14 3. Prior to the entry of Judgment, in July 2017, this Court issued a preliminary 15 injunction restraining Defendant from concealing or hiding the boat and trailer. Defendant violated 16 the injunction by concealing the Boat and Trailer. Attached hereto as Exhibit 2 is a true and 17 correct copy of the Preliminary Injunction. Following entry of Judgment, on August 12, 2020, this 18 Court also issued a Turnover Order in Aid of Execution of Judgment ordering Defendant to 19 transfer the Boat and Trailer to the Stanislaus County Sheriff’s Office. Defendant failed to comply 20 with the Turnover Order. Attached hereto as Exhibit 3 is a true and correct copy of the Turnover 21 Order. 22 4. On, December 17, 2020 this Court found that Defendant had willfully violated the 23 July 2017 preliminary injunction by concealing or hiding the boat and trailer and, held Defendant 24 in contempt of court and sentenced him to jail with an order to pay a $1,000 fine. Defendant did 25 not go to jail; he never complied with the order. 26 5. While this action was ongoing, Defendant initiated a dissolution of marriage 27 proceeding involving his spouse Kanisha Smith bearing Stanislaus Superior Court Case No. FL- 28 21-000828. Davis filed a Notice of Lien in this proceeding. In connection with the dissolution 8 EX PARTE APPLICATION FOR ORDER PERMITTING SHERIFF TO SEIZE PERSONAL PROPERTY 4115796.2 1 proceeding, Counsel for Davis has monitored the dissolution proceeding and has had 2 conversations with Ms. Smith’s counsel. During these conversations, it came to light that 3 Defendant has the Boat and Trailer in his possession and is hiding the Boat and Trailer in a storage 4 facility located at 27431 Highway 33, Newman Ca 95360 which is within Stanislaus County. 5 Defendant pays rent at this storage facility. 6 6. This information comes directly from Ms. Smith and her counsel. Ms. Smith knows 7 about the storage facility and the location of the Boat and Trailer because she has received billing 8 statements and information regarding Defendant’s use of this facility. On February 20, 2024, 16255 VENTURA BOULEVARD, SUITE 300, ENCINO, CALIFORNIA 91436-2300 9 Counsel even provided photographs of the location of the storage wherein he stated “this is the 10 unit where the Boat is being kept”. The unit which is large enough to house the Boat and Trailer. TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328 11 Attached hereto as Exhibit 4 is a true and correct copy of the email from Ms. Smith’s counsel. NEMECEK & COLE A PROFESSIONAL CORPORATION 12 Notice of Ex Parte Application 13 7. Pursuant to California Rule of Court 3.1204(d)(3) Ex Parte notice WAS NOT 14 provided to Smith or his counsel of record. The reason for this is that Smith has no ability to 15 oppose the instant Ex Parte Application and Plaintiff has strong reason to believe that upon receipt 16 of said notice Davis would transfer the location of the Boat and Trailer to a new location to avoid 17 Davis’ lawful right to seize the Boat and Trailer. In fact, Defendant has gone so far as to disregard 18 this Court’s prior orders and having been held in contempt of court in an effort to prevent Davis