Judge: Audra Mori, Case: BC707602, Date: 2022-12-13 Tentative Ruling

Case Number: BC707602    Hearing Date: December 13, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Ron A. Rosen Janfaza (“Janfaza”) filed this action against Defendant, Omid Khorshidi (“Khorshidi”) for damages relating to an alleged physical altercation between Plaintiff and Defendant that occurred at the Santa Monica Courthouse on May 26, 2016.  Khorshidi has filed a cross-complaint against Janfaza for damages arising out of the same incident.   

At this time, Khorshidi moves for an Order to Show Cause re: Contempt to be set to determine whether non-party witness Raymond Arrehbori (“Arrehbori”) should be fined up to $1,000.00, or be imprisoned for up to five days, or both, and whether Khorshidi should be reimbursed reasonable attorney fees, due to Arrehbori’s alleged failure to proceed with his deposition.  In particular, Khorshidi asserts that after serving Arrehbori with a deposition subpoena, Arrehbori and Plaintiff served objections to the noticed date, and then Arrehbori appeared but failed to proceed with his deposition on October 13, 2022, for a variety of claimed reasons.  Khorshidi asserts that Arrehbori then failed to appear for the rescheduled deposition on October 26, 2022, though it is unclear that a subpoena was issued compelling his appearance on that date.  Janfaza opposes the motion, and Khorshidi filed a reply. 

Khorshidi moves “pursuant to California Code of Civil Procedure §§ 1209, 1211(a) and 1218(a)” for an Order to Show Cause re: Contempt to be set to determine whether the third-party witness, Arrehbori, should be fined or be imprisoned.  Section 1209 sets out acts constituting contempt.  Section 1211(a) states, in part, “When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting contempt….”  Section 1218(a) discusses the determination that a court makes after a contempt trial. 

As a contempt is a quasi-criminal procedure that can result in incarceration, the requirements for a contempt proceeding are strict.  “Although a contempt may arise, as here, in the context of a civil action, a contempt proceeding is punitive and separate from the cause out of which it arises (Kroneberger v. Superior Court, supra, 196 Cal.App.2d at p. 210), and it is for this reason that every "i" must be dotted and every "t" crossed.”  (Cedars-Sinai Imaging Medical Group v. The Superior Court of Los Angeles County (2000) 83 Cal.App.4th 1283, 1287.)   A contempt proceeding is initiated by a charging affidavit, which frames issues that will be tried and seeks an Order to Show Cause re: Contempt from the court.  (CCP § 1211 [“an affidavit shall be presented to the court or judge of the facts constituting the contempt”]; Cedars-Sinai Imaging Medical Group, 83 Cal.App.4th at 1286).  “Unless the citee has concealed himself from the court, he must be personally served with the affidavit and the order to show cause; otherwise, the court lacks jurisdiction to proceed. (§ 1015 [in civil actions in which a party to the action is represented by an attorney, ‘the service of papers, when required, must be upon the attorney instead of the party, except service of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt’]; see also § 1016; Arthur v. Superior Court, supra, 62 Cal.2d at p. 408, 42 Cal.Rptr. 441, 398 P.2d 777; and see Weil & Brown, supra, § 9:716, p. 9(11)–47.)”  (Cedars-Sinai Imaging Medical Group, 83 Cal.App.4th at 1286-87.) 

In this case, the charging declarations were not personally served on Arrehbori, and there is insufficient evidence that he has concealed himself.[1]  (Ibid., supra; CCP §§ 1015, 1016.)  Indeed, there is no showing that any attempt to serve him personally with the affidavit was made.  There is insufficient evidence showing that Janfaza is Arrehbori’s attorney of record in this matter for purposes of the subpoena or for receipt of the charging affidavit.  Consequently, there is insufficient showing that Arrehbori has been given notice of this proceeding, and thus, the Court lacks jurisdiction to proceed.  As Arrehbori is not a party to this action, and Defendant is attempting to initiate a separate and punitive contempt proceeding against him, it is particularly important that he is served properly.   

Furthermore, “It has long been the rule that the filing of a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.”  (Koehler v. Superior Court (Gilbert Papazian), 181 Cal.App.4th 1153, 1169 (Cal. Ct. App. 2010).  The affidavit requirement can be satisfied with a declaration under penalty of perjury.  (In re M.R. (2013) 220 Cal.App.4th 49, 57.)  Due process requires that the affidavit provide the accused with reasonably clear notice of the charges against him or her.  Otherwise, the Court is without jurisdiction to proceed.  (Hutton v. Superior Court of City and County of San Francisco (1905) 147 Cal. 156, 159.) 

Moreover, a charging affidavit must address the following facts: (1) rendition of a valid order; (2) respondent’s actual knowledge of the order; (3) respondent’s ability to comply with the order; and (4) respondent’s willful disobedience of the order.  (Conn v. Superior Court (Farmers Group) (1987) 196 Cal.App.3d 774, 784.)  When the affidavits are reviewed in this case, they do not set forth sufficient facts addressing these elements.  It does not appear that the affidavits even attempt to frame the issues or provide notice of particular counts of contempt.  Rather, the Declaration of attorney Kassimali attaches copies of various documents, discusses how the witness indicated he could and then could not appear at deposition, and describes fees incurred.  The Declaration of Khorshidi addresses fees incurred.  The affidavits do not identify a valid order, show respondent’s knowledge of the order, or clearly state that the respondent had the ability to comply with and willfully violated the order.  (Van v. Language Line Services, Inc. (2017) 8 Cal.App.5th 73, 82 [“Punishment for contempt ‘can only rest upon [a] clear, intentional violation of a specific, narrowly drawn order.  Specificity is an essential prerequisite of a contempt citation.].)  Although the Motion and Memorandum of Points and Authorities make arguments as to why Arrehbori was in contempt, this not the same as declaring under penalty of perjury facts that constitute counts of contempt.  As the affidavits are insufficient, the Order to Show Cause will not issue.

Based on the foregoing, Khorshidi’s motion is denied.  Because the motion is denied, Khorshidi’s request for monetary sanctions is also denied.   

Khorshidi is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 13^th day of December 2022