Judge: Kenneth R. Freeman, Case: 21STCV13453, Date: 2023-10-24 Tentative Ruling


Case Number: 21STCV13453    Hearing Date: October 24, 2023    Dept: 14

(1)        OSC re: Compliance

 

            When this court issued the preliminary injunction on October 6, 2022, it stayed enforcement of the order until December 13, 2022, and gave the parties specific instructions to follow. (Order filed October 6, 2022, p. 5). On December 13, 2022, the court extended the stay to February 14, 2023. (Minute Order of December 13, 2022).

 

On February 14, 2023, Defense reported a plan to transition the property to uses which would not require any barrier at all. The court then ordered that the stay on enforcement would expire in 30 days and set a status conference for the 30th day: March 15, 2023. (Minute Order of February 14, 2023).

 

On March 15, 2023, this court lifted the stay on enforcement and set an OSC re: Compliance with the injunction for May 1, 2023. (Minute Order of March 15, 2023). On May 1, 2023, the OSC was held and continued to June 1, 2023. (Minute Order of May 1, 2023). On June 1, 2023, the OSC was held and continued to July 10, 2023. (Minute Order of June 1, 2023). It was subsequently continued multiple times, at the court’s own motion, to the instant date.

 

For the reasons given in connection with the motion for contempt, discussed below, the OSC re: compliance is DISCHARGED.

 

The court sets a Case Management Conference for December 4, 2023, at 8:30 am.

 

(2)        Contempt

 

            Plaintiff now moves this court for orders (1) finding that each defendant is in contempt of court, (2) modifying the preliminary injunction issued by this court on October 6, 2022, (3) imposing a $1,000 fine against each defendant, and (4) awarding legal fees to the Plaintiff.

 

Decision

 

            Defendants’ Evidentiary Objections to Statements of Fact are OVERRULED. The statements of counsel in a memorandum are argument, not evidence, and are not subject to evidentiary objection.

 

            Defendants’ Evidentiary Objections to Exhibits are SUSTAINED. Some of the evidence submitted is subject to previously-sustained objections, and all of it is irrelevant, as it refers to a time period and events which occurred before the court issued the injunction Defendants now seek to enforce.

 

The motion is DENIED.

 

Governing Standards

 

            Code of Civil Procedure § 1209 defines contempt as follows:

 

“(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

…

(5) Disobedience of any lawful judgment, order, or process of the court.”

 

Code of Civil Procedure § 1211 provides in relevant part that:

 

“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.”

 

Code of Civil Procedure § 1212 provides in relevant part:

 

“When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause.”

 

Code of Civil Procedure § 1217 provides for a bench trial of contempt charges.

 

Local Rule 3.11 provides in relevant part as follows:

 

“Indirect contempts may be heard in the department to which the case is assigned…

 

(a) Order to Show Cause. Although Code of Civil Procedure section 1212 permits a warrant of attachment against the person charged with contempt, the standard procedure is section 1212's alternative method of issuance of an order to show cause (“OSC”) re: contempt. An OSC will issue if the affidavit is sufficient, and the OSC must then be personally served on the accused person. The OSC may issue upon ex parte application, but only if the requesting party has complied with the notification requirements of California Rules of Court, rule 3.1204…

 

(b) Trial. The hearing on the OSC re: contempt is in the nature of a quasi-criminal trial. The accused person has the right to appointed counsel, to remain silent, to confront and cross-examine witnesses, and to be proven guilty beyond a reasonable doubt. The only major difference between contempt and a criminal trial is that the accused person has no right to a jury. The moving party must appear for the trial with witnesses prepared to testify unless the accused person stipulates in writing that the moving party’s declarations will constitute the case-in-chief against the accused person. If there is no stipulation, the parties should stipulate that the moving parties’ declarations will constitute the direct testimony of each declarant, with the declarant then subject to cross-examination.”

 

Discussion

 

            A motion for contempt may not be combined with a motion to modify an injunction. These are two separate items which must be sought separately. A motion for contempt is a quasi-criminal proceeding which requires a trial and for which the penalties are fixed by statute. It cannot be combined with other requests, nor may other requests be made on the basis of a pending contempt proceeding. For that reason, all parties’ requests for a modification of the injunction are DENIED.

 

            Because contempt is a complex quasi-criminal process, and a hearing on contempt is the equivalent of a trial, the court cannot make a contempt finding on a regular noticed motion. The proper vehicle to initiate contempt proceedings, pursuant to Local Rule 3.11(a) quoted above, is a motion for an order to show cause. That is not the motion Plaintiffs have presented. Nevertheless, even had it been, contempt is meant to punish “willful disobedience” of a court order. Moore v. Superior Court (2020) 57 Cal.App.5th 441, 456. The court is not convinced the evidence will support that finding.

 

            This case is one of several proceedings instituted by different bodies with different mandates. The first in time of these cases, and the one with the most relevance here, is pending in federal district court before the Honorable Stanley Blumenfeld, Jr. That case is an action by the Defendants’ neighbor, the Los Angeles Unified School District (“District”) seeking safety protections for the benefit of the students at Jordan High. As part of that action, Judge Blumenfeld ordered Defendants to “prevent” projectiles from flying across the boundary line.

 

            To comply with that order, Defendants erected the unpermitted container wall, which drew the attention of the Plaintiffs and ultimately became part of the basis for this lawsuit. On October 6, 2022, this court ordered Defendants to do the following:

 

            “(1) remove the shipping container wall,

            (2) replace it with a compliant wall not more than 15 feet tall,

(3) reduce the height of any scrap piles to match the height of the lowest wall within 10 feet, and

(4) to cease non-parking operations within 50 feet of the western and southern borders of their property.” (Order filed October 6, 2022 p. 5).

 

It is not disputed that the third and fourth items have been complied with. It is also undisputed that the first and second have not. But the reason for the lack of compliance is also readily apparent.

 

            The parties in both this case and the federal case have been communicating for some time. The District and the mediator in the federal case have occasionally appeared before this court, and the People have occasionally done the same in the federal case. Everyone agrees that there needs to be a barrier in place to protect the children of Jordan High. Everyone also agrees that the current barrier cannot be permanent. But the replacement barrier must also be permitted by the City of Los Angeles Department of Building and Safety (“DBS”).

 

            To that end, Judge Blumenfeld held a hearing in the federal case, at which the People were present. He issued a series of interim orders, describing the replacement barrier to be built and directing the steps to be taken towards getting the replacement barrier permitted. (Declaration of Erin Poppler Exhibit K). Judge Blumenfeld also had several conversations with the People in which he urged them not to disrupt the process playing out under his supervision. (Id. Exhibits I-J).

 

            In short, the reason Defendants are only in partial compliance with this court’s order is that they must balance this court’s directives with the instructions they receive from Judge Blumenfeld. While here is no conflict between the ultimate end envisioned by all parties and both courts in both cases – the removal of the container wall – there is some tension between the request in this case that removal occur immediately and the need in the federal case for a permitted, ready replacement.

 

            The primary concern at play now is the permitting and design of the replacement barrier. That issue falls squarely in the purview of the federal case, and Judge Blumenfeld is clearly engaged in active supervision of the process. In fact, Judge Blumenfeld has already made an identical order to the one issued by this court. Therefore, there is no longer any need for this court to hold repeated supervisory hearings.

 

Conclusion

 

            This motion was brought in improper form. But even had it been properly framed, Defendants are not in willful disobedience of a court order. Rather, they are in partial compliance. And the reason their compliance is only partial is that this court’s mandates must be balanced with those of the federal court across the street. Therefore, the motion for contempt is DENIED.

 

(3)        Stay

 

            Defendants now move this court for an order staying this case, on the grounds that they are under investigation by the EPA and have been charged with a felony by the Los Angeles District Attorney.

 

Decision

 

            Defendants’ Request for Judicial Notice is GRANTED.

 

The motion is CONTINUED to December 4, 2023. Defense is to file a supplemental brief of no more than 10 pages in response to the questions set forth below on or before November 7, 2023. Plaintiff is to file a supplemental opposition of no more than 10 pages on or before November 17, 2023. Defense may, but is not required to, file a supplemental reply of no more than 5 pages. Should they elect to do so, that reply would be due on or before November 27, 2023.

 

Discussion

 

            In ordinary civil actions with parallel criminal proceedings, this court would be called upon to exercise its discretion as set forth in Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 307-308. A stay of the case is generally appropriate where the criminal case arises out of the same transaction as the civil case and the applicable criminal statute of limitations is likely to run comparatively soon. See Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690 (case involving battery of federal officers stayed where federal statute would run out in just less than two years). A stay order may be less appropriate where (as here) the party invoking the privilege is not the only defendant and the length of the stay is unknown. See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886-887 (providing a list of generic factors to be analyzed).

 

            However, this is not an ordinary case. This is an enforcement action brought by two prosecutorial bodies on behalf of the People of the State of California. It is not clear whether different rules of priority apply here than they would in a case with private party plaintiffs.

 

            Additionally, the parameters of this case are unknown. Since the case has already spent considerable time under a stay, and the pleadings only recently became “at-issue,” it isn’t clear what the shape of discovery will be. For example, it isn’t clear if there is third-party discovery which could safely be collected now (or might disappear if not collected now).

 

            Finally, the parameters of the other criminal action or actions are unknown. It isn’t clear how much factual overlap there will be. Facially, there does not seem to be much overlap between a zoning enforcement action targeting a container wall and a criminal complaint that targets the disposal of toxic chemicals. But the public nuisance claim may well overlap.

 

            Therefore, before ruling on this motion, the court requests that both parties answer, as best they can, the following questions:

 

(1)   Is there any authority which suggests that a motion to stay an enforcement action should be treated differently than a motion to stay a damages case brought by a private plaintiff?

(2)   What discovery, if any, can be conducted without implicating the individual Defendants’ Fifth Amendment rights? Will discovery propounded on the corporate defendants implicate those rights? Is there any outstanding discovery request that seeks information which is likely to be unavailable if sought later?

(3)   What are the physical acts at issue in the pending criminal prosecution brought by the District Attorney? What is the projected timeline, if any, for that case?

 

Conclusion

 

            Because the court needs more information to make a reasoned decision on this motion, it is CONTINUED to December 4, 2023. Defense is to file a supplemental brief of no more than 10 pages in response to the questions listed above on or before November 7, 2023. Plaintiff is to file a supplemental opposition of no more than 10 pages on or before November 17, 2023. Defense may, but is not required to, file a supplemental reply of no more than 5 pages. Should they elect to do so, that reply would be due on or before November 27, 2023.