Judge: Holly J. Fujie, Case: 23STCP01705, Date: 2024-11-22 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 23STCP01705    Hearing Date: November 22, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff Tohid Naeem

RESPONDING PARTY: None

            The Court has considered the moving papers.

BACKGROUND

             On May 18, 2023, Plaintiff Tohid Naeem (“Plaintiff”) filed the operative Complaint against Defendant Nidal A. Barakat (“Defendant”) for violations of tenant anti-harassment ordinance.

            On August 28, 2024, the parties filed a stipulation re settlement.

            On October 24, 2024, Plaintiff filed this instant Motion for Order to Show Cause Re: Contempt. Plaintiff also filed proof of service by first-class mail.

DISCUSSION

Plaintiff moves for an order finding Defendant in civil contempt, or, in the alternative, for an Order to Show Cause hearing on the issue of Defendant’s civil contempt for not complying with the terms of the settlement agreement entered into on August 28, 2024.

“Disobedience of any lawful judgment, order, or process of the court” is a contempt of the authority of the court.  (Code Civ. Proc., § 1209, subd. (a)(5).)  When the contempt is not committed in the immediate view and presence of the court, the moving party must submit an affidavit to the court or judge of the facts constituting the contempt. (Code Civ. Proc., § 1211, subd. (a).)  The moving party must show by affidavit: (1) an order was made; (2) the alleged contemnor’s knowledge of that order; (3) the alleged contemnor’s ability to render compliance; and (4) the alleged contemnor’s willful disobedience. (Anderson v. Super. Ct. (1998) 68 Cal.App.4th 1240, 1245.)  The moving party’s affidavit shall function like a complaint, and facts giving rise to the court’s jurisdiction to charge the alleged contemnor must be “well-pleaded.” (People v. Hadley (1924) 66 Cal.App. 370, 379-380.) Punishment can only rest upon clear, intentional violation of a specific, narrowly drawn order. (Board of Supervisors v. Super. Ct. (1995) 33 Cal.App.4th 1724, 1737.) Specificity is an essential prerequisite of a contempt citation. (Ibid.) This is a jurisdictional requirement. (Anderson v. Super. Ct., supra, 68 Cal.App.4th 1240 at pg. 1245.)

As another requirement for jurisdiction, the person to be held in possible contempt must be personally served with the affidavit and order to show cause. (Cedars-Sinai Imaging Medical Group v. Super. Ct. (2000) 83 Cal.App.4th 1281, 1286-1287.)

            Plaintiff did not personally serve Defendant with the contempt papers. Therefore, this court lacks jurisdiction.   

            Even if service had been proper, contempt would not be proper here because the stipulated settlement is not a court order. The proper recourse would be for Plaintiff to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6.

            Thus, the motion is denied.

Moving Party is ordered to give notice of this ruling.           

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 22^nd day of November 2024

SUPERIOR
COURT OF THE STATE OF CALIFORNIA

FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff
Tohid Naeem

RESPONDING PARTY: None

            The Court has considered the moving papers.

BACKGROUND

             On May 18, 2023, Plaintiff Tohid Naeem
(“Plaintiff”) filed the operative Complaint against Defendant Nidal A. Barakat
(“Defendant”) for violations of tenant anti-harassment ordinance. On August 28,
2024, the parties filed a stipulation re settlement. On August 29, 2024, the
Court entered an order of dismissal of the entire action.             On October 24, 2024, Plaintiff filed this
instant Motion for Order to Set Aside Judgment (the “Motion”).

DISCUSSION

Plaintiff moves
for an order vacating and setting aside the judgment entered in this action under
Code of Civil Procedure section 473, subdivision (b) based on fraud, excusable
neglect, and mistake.

Code of Civil Procedure section 473(b) provides, “The court
may, upon any terms as may be just, relieve a party or his or her legal
representative from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or
excusable neglect.  Application for this relief . . . shall be made within
a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.”  The statute is liberally
construed to give effect to the policy favoring resolution of disputes on their
merits.  (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401,
1410.)  To be entitled to relief under the statute, the moving party must
demonstrate a satisfactory excuse for his or her default, as well as diligence
in seeking relief after discovery of the default.  Whether the moving
party has carried this burden is a question to be resolved in the discretion of
the trial court.  (Ibid.) This remedial statute
is to be liberally construed. (H.D. Arnaiz, Ltd. v. Cnty of
San Joaquin (2002) 96 Cal.App.4th 1357, 1368.) Thus, a trial court
order denying relief is scrutinized more carefully than an order permitting
trial on the merits. (Ibid.)

The motion is timely because
Plaintiff filed it about two months after the Court issued the order.

            The
Court denies the motion on fraud grounds for relief. Plaintiff argues that
because Defendant issued a fraudulent check, Plaintiff was fraudulently induced
into dismissing the action. Although not
specifically mentioned in the statute, an order obtained by fraud, extrinsic or
intrinsic, may be set aside under Code of Civil Procedure section 473. (See Peterson v. Peterson (1955) 135 Cal. App. 2d 812, 814.) Extrinsic fraud arises when the defendant has been
denied a fair adversary hearing because the defendant was deliberately kept in
ignorance of the action or in some way fraudulently prevented from presenting a
defense. (Kramer v Traditional Escrow,
Inc. (2020) 56 Cal.App.5th 13,
36.) Intrinsic fraud goes to the
merits of the prior proceeding. (In re Margarita D.
(1999) 72 Cal. App. 4th 1288, 1295.) Neither extrinsic fraud nor intrinsic fraud applies to the facts stated
by Plaintiff.

The Court also denies the
motion on excusable neglect grounds for relief. Plaintiff argues only that he
could not present evidence of the fraudulent check and its consequences in a
timely manner due to
excusable neglect. In the absence of an “attorney affidavit of fault,” the
burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been
avoided through the exercise of ordinary care. (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.) Plaintiff did not meet the
burden here.

Plaintiff does not argue mistake.  

Thus,
the motion is denied.

Moving
Party is ordered to give notice of this ruling.           

Parties who intend to submit on this
tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed
by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email
and there are no appearances at the hearing, the motion will be placed off
calendar.

Dated this 22^nd day of November
2024