Judge: Frank M. Tavelman, Case: 10BBCV00814, Date: 2023-01-13 Tentative Ruling

Case Number: 10BBCV00814    Hearing Date: January 13, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR CONTEMPT ORDER

ALLEGATIONS:

Plaintiff/Judgment Creditor Kara Veltri (“Judgment Creditor”) filed suit against Defendants/Judgment Debtors Kanab Ventures (“Kanab”) and Iman Azad (“Azad”) (collectively “Judgment Debtors”) alleging breach of contract and fraud. Following Defendants’ failure to file a responsive pleading, on March 4, 2020, the Court entered default judgment in favor of Judgment Creditor in the amount of $56,855.27. On January 14, 2022, Plaintiff filed, and the Court granted, a motion requesting an Order of Assignment of Azad’s interest in Blue Star Services Group, Inc. (“Blue Star”) to Judgment Creditor as assignee.

Plaintiff now moves for an issuance of a Contempt Order and for Attorney’s Fees for Blue Star’s failure to comply with the previously granted Assignment Order. 

PRESENTATION:

The Court received the Motion for Contempt Order filed by Judgment Creditor on October 31, 2022. The Court has not received any opposition or reply.

RELIEF REQUESTED:

Judgment Creditor moves for an order: (1) holding Blue Star in contempt of court for failing to comply with the Court’s January 14, 2022 order; (2) ordering Blue Star to pay Judgment Creditor’s reasonable attorney’s fees and costs in connection with this motion.

ANALYSIS:

        I.            Legal Standard

Civil Contempt procedures are set forth in C.C.P. §§ 1209 through 1222. Under these rules, a proceeding for adjudication of constructive contempt is customarily initiated by the issuance of an Order to Show Cause.  (In re Rose (1949) 90 Cal. App. 2d 299, 305.)  The proceeding is also initiated by the filing of an affidavit or declaration, stating the facts constituting the alleged contempt, in order to confer jurisdiction upon the court to exercise its contempt powers over the accused.  (Application of Liu (1969) 273 Cal.App.2d 135, 140-41.) 

Since a contempt proceeding is quasi-criminal in nature, the accused person is entitled to due process, or the procedural safeguards available to a person accused of a criminal charge, including the right to know the exact nature of the charge against him/her so that he/she can prepare and present his/her defense.  (Ibid. at 141.)  The accused must be shown, beyond a reasonable doubt, that he/she had the ability to comply with the subject court order; the burden of proof on this issue lies with the party seeking to have the accused held in contempt.  (Ibid. at 141-42.) 

An “indirect contempt” occurs out of court but is equally subject to the summary punishment set forth in C.C.P. § 1211: “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 the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.”  (Arthur v. Superior Court of Los Angeles County (1965) 62 Cal.2d 404, 407-408.)  Thereafter, an order to show cause must be issued and the court must hold a hearing on the facts.  (Ibid. at 408.) Since the acts involved in the alleged contempt in this action did not occur in the Court’s presence, the affidavit must cover each element of the commission of the contempt.  (C.C.P.  § 1211.5.) 

The elements of contempt are: (1) facts establishing court’s jurisdiction (e.g., personal service of subpoena, validity of court order allegedly violated, etc.); (2) the party’s knowledge of the order disobeyed; (3) the party’s ability to comply; and (4) the party’s willful disobedience of the order.  (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169; In re Jones (1975) 47 Cal.App.3d 879, 881.) 

Furthermore, the order must be personally served on the party to establish jurisdiction.  (Cedars-Sinai Imaging Medical Group v. Superior Court, (2000) 83 Cal.App.4th 1281.) 

     II.            Merits

A.     Contempt

First, the Court finds the service attached to be insufficient for a contempt proceeding. Judgment Creditor attached a proof of service which alleges service by mail and makes no other reference to any attempt at personal service. As such, service of the order is insufficient.

Second, the Court finds that Judgment Creditor has not submitted any evidence regarding Blue Star’s ability to comply with the Order and willful disobedience. Judgment Creditor’s declaration makes no reference to any facts which would indicate that Blue Star has the ability to comply with the assignment order. Further, the only evidence of “willful” noncompliance with the order is that Judgment Creditor’s attorney could not get into contact with Blue Star after three attempts. Plaintiff has not shown that Blue Star’s disobedience of the orders was willful beyond a reasonable doubt.  On this basis, the affidavit in support of an order for contempt fails to satisfy all four elements. 

Third, Judgment Creditor requests relief that the Court may not grant.  Parties may not be imprisoned in a civil action for debt.  (Cal. Constitution, Art. I § 10.) 

For these reasons, the Court DENIES Judgment Creditor’s Motion for Issuance of a Contempt Order. 

B.     Attorney’s Fees

C.C.P. §§ 1209 through 1222 make no provision for sanctions granting attorney’s fees in connection with motions for contempt. Plaintiff cites no legal authority which would otherwise provide for the sanctions it requests.

As such, the Court DENIES the Motion for Attorney’s Fees.  

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff/Judgment Creditor Kara Veltri’s Motion for Issuance of a Contempt Order and Attorney’s Fees came on regularly for hearing on January 13, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR CONTEMPT ORDER IS DENIED. THE MOTION FOR ATTORNEY’S FEES IS DENIED.

DATE: January 13, 2023                                ________________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

                                                                        County of Los Angeles