Judge: Malcolm Mackey, Case: 19STCV04175, Date: 2022-08-04 Tentative Ruling
Case Number: 19STCV04175 Hearing Date: August 4, 2022 Dept: 55
TATSU
RAMEN, LLC v. JUAN CARLOS RIVAS 19STCV04175
Hearing Date: 8/4/22,
Dept. 55
#8:
ORDER TO SHOW CAUSE AS TO
WHY MANUEL DEJESUS RIVAS SHOULD NOT BE HELD IN CONTEMPT FOR FAILURE TO APPEAR
FOR HIS COURT ORDERED DEPOSITION.
ORDER TO SHOW CAUSE AS TO
WHY JUAN CARLOS RIVAS SHOULD NOT BE HELD IN CONTEMPT FOR FAILURE TO APPEAR FOR
HIS COURT ORDERED DEPOSITION.
Notice: Not
provided yet. (Personal, and sometimes substituted,
service has been authorized upon contemnors.
In re Abrams (1980) 108 Cal. App. 3d 685, 691.).
No
Opposition
MP:
Plaintiff
RP:
Summary
On 02/07/19, Plaintiff Tatsu Ramen, LLC filed the
instant action against Defendants Juan Carlos Rivas, Ryutaro Isobe, B&B
International, LLC, Wakou USA, Inc., and Mutual Trading Company, Inc. Plaintiff alleges that defendants conspired
to grossly overcharge plaintiff for sauces it purchased from defendants. Plaintiff operates restaurants that serve
ramen noodles and related food products.
Plaintiff alleges that Defendant Isobe, who was one of its managerial
employees, recommended that Plaintiff purchase sauces from B&B because it
would save Plaintiff time and money, and Plaintiff purchased the sauces based
on the recommendation. Further, Plaintiff
alleges that this was part of a scheme and conspiracy by Defendants to defraud
Plaintiff by having Isobe persuade Plaintiff to outsource the manufacture of
the sauces through misrepresentations regarding the economy of doing so,
forming B&B to contract with Plaintiff to purchase the sauces, having Wakou
manufacture the Sauces, having Wakou distribute the Sauces to Mutual, having
B&B obtain the Sauces from Mutual without following FDA procedures, having
B&B charge plaintiff substantially more than the fair market value of the
Sauces, and then dividing the revenue among themselves.
The causes of action are:
1) FRAUD
AND CONSPIRACY TO COMMIT FRAUD;
2) UNJUST
ENRICHMENT;
3) UNFAIR
COMPETITION;
4) VIOLATION
OF THE RACKETEER INFLUENCED CORRUPT ORGANIZATIONS ACT.
Moving party requests proposed orders filed 5/2/22, for
proceeding with the noticed OSC hearings, for reasons including the following:
·
Deponents RIVAS and
MANUEL should show why they should not be held in contempt, for repeatedly
failing to attend ordered depositions and failing to pay ordered monetary
sanctions.
·
The deposition
testimony is crucial to determine the scope of the conspiracy and all of the
participants.
·
A witness who is
not a party to an action who has been subpoenaed to appear for his deposition
may be held in contempt of court for the
disobedience of the subpoena. (CCP section 2020.240; Lund v. Superior Court (1964) 61 Cal. 2d 698,
713.
·
The Court should
again order deponents to appear for their deposition on a date convenient for
Tatsu's counsel and to produce the Subpoenaed Records at the depositions.
·
Monetary sanctions
should also be awarded against the deponents, plus $500 pursuant to CCP section
1992.
Tentative
Ruling
Preliminarily, the Court inquires how moving party
wishes to proceed, in light of prior minutes indicating that Plaintiff's
counsel has been trying to personally serve Manuel Rivas and Juan Rivas with
notices of continually rescheduled OSC hearings.
The unopposed motions are granted.
The Court will allow the opportunity for the deponents
to show cause why they should not be held in contempt as prayed.
Below is an outline of applicable law:
To support an order to show cause re
an indirect contempt (occurring outside the immediate presence of the court), a
declaration must evidence, as jurisdictional requirements “(1) the making of
the order, (2) knowledge of the order, (3) ability of the accused to render
compliance, and (4) willful disobedience of the order.” Application of Ny (1962) 201 Cal. App. 2d 728, 731. Accord Board of Supervisors v. Sup.
Ct. (1995) 33 Cal. App. 4th 1724, 1736.
“The elements of proof necessary to
support punishment for contempt are: (1) a valid court order, (2) the
alleged contemnor's knowledge of the
order, and (3) noncompliance…. The order
must be clear, specific, and unequivocal.”
Malek v. Koshak (2012) 200
Cal.App.4th 1540, 1548-49.
The “requirements for a valid
contempt citation apply in discovery sanctions matters.” In re de la Parra (1986) 184
Cal.App.3d 139, 144.
“Punishment for contempt ‘can only rest upon clear, intentional violation of a
specific, narrowly drawn order. Specificity is an essential prerequisite of a
contempt citation.’” Board of
Supervisors v. Sup. Ct. (1995) 33 Cal. App. 4th 1724, 1737.
“‘[A] void order cannot be the basis
for a valid contempt judgment.’” Moore
v. Kaufman (2010) 189 Cal.App.4th
604, 616.
A citee must be personally served
with a charging affidavit and an order to show cause setting a future hearing
time, or a court will lack jurisdiction to proceed. Cedars-Sinai Imaging Medical Group v. Sup.
Ct. (2000) 83 Cal. App. 4th 1281, 1286-87.
Generally, trial courts have
discretion as to whether to punish any contempt. Goold v. Sup. Ct. (2006) 145 Cal. App.
4th 1, 9. See, also, e.g., CCP §§1211(a) (“may be punished….”); 1212 (“warrant … may be issued….”); 1991 (“Disobediance to a subpoena… may be
punished as a contempt….”); 1993(a)(1)
(“may issue a warrant” re deposition subpoena);
2020.240 (“deponent who disobeys a deposition subpoena . . . may be
punished for contempt….”); 2023.030(e)
(court "may" impose contempt sanction.)
“‘The power of the court to punish
for contempt is indeed broad, but it is not unlimited. It is a drastic remedy,
to be employed only when necessary to the proper and orderly conduct of
judicial proceedings.’” Chapman v.
Sup. Ct. (1968) 261 Cal.App.2d 194, 201.