Judge: Katherine Chilton, Case: 21STLC03861, Date: 2022-10-10 Tentative Ruling

Case Number: 21STLC03861    Hearing Date: October 10, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR ORDER TO SHOW CAUSE RE: CONTEMPT;

                                    REQUEST FOR SANCTIONS

MOVING PARTY:   Plaintiff UBS Bank USA

RESP. PARTY:         None

MOTION FOR OSC RE: CONTEMPT;

REQUEST FOR SANCTIONS

(CCP §§ 1209 et seq., 177, et seq.; LASC Rule 3.11)

TENTATIVE RULING:

Plaintiff UBS Bank USA’s Motion for Order to Show Cause Regarding Contempt and Request for Sanctions is DENIED.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[ X ] Correct Address (CCP §§ 1013, 1013a)                                     OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of October 9, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of October 9, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On May 18, 2021, Plaintiff UBS Bank USA (“Plaintiff”) filed an action against Defendant Al Landry for 1) breach of contract, 2) account stated, and 3) unjust enrichment.  Following Defendant’s failure to file a responsive pleading, on August 24, 2021, the Court entered default judgment against Defendant for $14,800.63.  (8-24-21 Default Judgment.)

On November 19, 2021, the Court denied Plaintiff’s Motion to Compel Unanswered Post-Judgment Interrogatories and Request for Production of Documents for filing two separate motions as one motion and for propounding more than 35 discovery requests, in violation of Code of Civil Procedure § 94.  (11-19-21 Minute Order.)

On May 12, 2022, the Court granted Plaintiff’s Motions to Compel Post-Judgment Discovery.  (5-12-22 Minute Order.)

On July 19, 2022, Plaintiff filed the instant Motion to Set Order to Show Cause Re: Contempt and Request for Sanctions (“Motion”).  No opposition has been filed.

II.              Legal Standard

Civil Contempt procedures are set forth in Code of Civil Procedure §§ 1209 through 1222. (See Allison v. County of Ventura (1977) 68 Cal. App. 3d 689, 702.)  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.  (In re 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.)

Contempt is any act, in or out of court, “which tends to impede, embarrass or obstruct the court in the discharge of its duties.”  (In re Shortridge (1893) 99 Cal. 526, 532.)  An “indirect contempt” occurs out of court but is equally subject to the summary punishment set forth in Code of Civil Procedure § 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. Sup.Ct. 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.  (Code Civ Proc. § 1211.5.)  If necessary, the court may order or permit amendment of the affidavits at any stage of the proceedings.  (Code Civ. Proc. § 1211.5(b).)

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.)

III.            Discussion

Plaintiff moves the Court for an order holding Defendant in contempt for failing to respond to post-judgment discovery and seeks the following relief: 1) Defendant to pay $1000 to the Court, 2) Defendant to be imprisoned for a length of time not to exceed five (5) days, 3) Defendant to pay monetary sanctions to Plaintiff in the amount of $1,536.00 and costs in connection with the Motion, and 4) Defendant to comply with the Court’s May 12, 2022 order and respond to post-judgment discovery requests.  (Mot. p. 2; Proposed Order.)

Plaintiff’s counsel states that On December 23, 2021, he personally served Defendant with two sets of discovery requests.  (Watson Decl. ¶¶ 3-4, Exs. B-D.)  On May 12, 2022, the Court ordered Defendant to respond to the discovery requests and pay monetary sanctions in the amount of $1,056.00 within thirty days’ notice of the Court Order.  (Ibid. at ¶ 7, Ex. H; 5-12-22 Minute Order.)  Defendant was personally served with the Court’s ruling.  (Ibid. at ¶ 8; Ex. I.)  As of the date of the Motion, Defendant has not complied with the Order or contact Plaintiff.  (Ibid. at ¶ 9.)  Plaintiff has filed the instant Motion and personally served the moving papers on Defendant on July 24, 2022.    (7-27-22 Minute Order.)

In the Motion, Plaintiff argues that pursuant to Code of Civil Procedure § 2023.030, the Court may issue contempt sanctions for a party engaging in conduct that constitutes misuse of the discovery process.  (Mot. p. 6.)

First, the Court finds that Plaintiff has not submitted sufficient evidence regarding Defendant’s ability to comply with the Order and willful disobedience.  In the Motion, Plaintiff argues that Defendant’s “ability to comply with the Order is obvious,” as Defendant had notice of the order and “[t]here can be no reasonable dispute that Landry had the ability to comply.”  (Mot. p. 7.)  Plaintiff also states that if Defendant did not have the ability to comply, he should have contacted Plaintiff and since he did not, his “failure to comply was willful.”  (Ibid. at pp. 7-8.)  Without evidence that Defendant has the ability to pay the sanctions as ordered, Plainitff has not shown that Defendant’s disobedience of the orders was willful beyond a reasonable doubt.  On this basis, the affidavit in support of an order to show cause regarding contempt fails to satisfy all four elements.

Second, Plaintiff 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 the instant Motion.

IV.           Conclusion & Order

For the foregoing reasons:

Plaintiff UBS Bank USA’s Motion for Order to Show Cause Regarding Contempt and Request for Sanctions is DENIED.

Moving party to give notice.