Judge: John C. Gastelum, Case: 20-01134896, Date: 2022-11-01 Tentative Ruling

Motion - Other

Tentative Ruling:  Defendant, Lana Krafve’s Motion an Order Setting an Order to Show Cause RE:  Contempt against third party Roya Hayatdavoudi, LMFT pursuant to Code of Civil Procedure section 1209 is DENIED.

“Disobedience of any lawful judgment, order, or process of the court” is contempt of the authority of the court. (Code Civ. Proc., § 1209, subd. (a)(5).)

“A contempt proceeding [for indirect contempt] is commenced by the filing of an affidavit and a request for an order to show cause.” (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286, citing Code Civ. Proc., § 1211 (“Cedars-Sinai Imaging Medical Group”).) “After notice to the opposing party’s lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth.” (Id at p. 1286.)

“[T]he filing of a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.” (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169 (“Koehler”).) In indirect contempt proceedings based on a disobedience of a prior court order, a valid order and judgment must establish the following:  (1) facts establishing the court’s jurisdiction (e.g., personal service or subpoena, validity of the court order allegedly violated, etc.); (2) the contemnor’s knowledge of the order disobeyed; (3) the contemner’s ability to comply; and (4) the contemnor’s willful disobedience of the order. (Id. at pp. 1160, 1169.) “The order and judgment [of indirect contempt] must state evidentiary facts supporting a finding of each of these elements, except that it need not state such facts in support of the finding of willfulness, which may be inferred from the circumstances. [Citation.]” (Id. at p. 1169.)

Here, the declaration of Defendant’s counsel, Tyler M. Ross, is insufficient to establish that Hayatdavoudi had knowledge of the September 14, 2021 Order.

First, it does not appear the Notice of Ruling concerning the Court’s Order on September 14, 2021, was served or sent to Hayatdavoudi. Based on the proof of service attached to the Notice of Ruling, said notice was served on September 16, 2021, only on Plaintiff’s counsel. (See Ex. E to Ross Declaration, Proof of Service attached to Notice of Ruling on Defendant Lana Krafve’s Motion to Compel the Production of Documents Pursuant to Subpoena Duces Tecum.)

Attorney Ross also provides that, “On December 23, 2021, after the Court’s entry of the Parties’ stipulated protective order, my office sent correspondence to Hayatdavoudi, via certified mail,” and that “[a] true and correct copy of this letter and proof of delivery is attached hereto as Exhibit G.” Said letter dated December 23, 2021, states, “On September 14, 2021, the Court ordered the above-referenced records be produced subject to a protective order. Enclosed is the signed protective order issued by the Court ordering production of the subpoenaed records.” (Ross Declaration, ¶ 14,  Ex. G to Ross Declaration.) However, the letter attached does not include a copy of the signed protective order, such that it also appears that Hayatdavoudi did not receive the stipulated protective order.

In addition, Attorney Ross provides that as to the letters dated December 23, 2021 and January 31, 2022, “[a] true and correct copy of th[ese] letter[s] and proof[s] of delivery,” are attached as Exhibits G and H, respectively. (Ross Declaration, ¶¶ 14-15.) However, no proof of delivery of either letter is attached.  (Exs. G and H to Ross Declaration.)

Defendant to give notice.