Judge: Malcolm Mackey, Case: 19STCV36329, Date: 2022-09-30 Tentative Ruling


Case Number: 19STCV36329    Hearing Date: September 30, 2022    Dept: 55

MORALES v. DBB AG PROPERTIES, LLC                                          19STCV36329

Hearing Date:  9/30/22,  Dept. 55

#5:   MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT AGAINST SOUTHERN CAL WELLNESS CENTERS, INC. AND SERGIO MORALES AND ISSUE AND MONETARY SANCTIONS.

 

Notice:  Okay

No opposition

 

MP:  Defendant

RP:  

 

Summary

 

On 10/10/19, plaintiffs filed a Complaint alleging that defendants forced their way into plaintiffs’ residential property at 3231 City Terrace, took over possession, and stole, destroyed and disposed of plaintiffs’ personal property there.

The causes of action are:

1. FORCIBLE ENTRY

2. FORCIBLE DETAINER.

 

 

MP Positions

 

Moving party requests an OSC hearing re contempt, and issue (precluding damages proof), and monetary ($2,260.00), sanctions, against nonparty SOUTHERN CAL WELLNESS CENTERS, INC. (SCWC) and Plaintiff SERGIO MORALES, on grounds including the following:

 

·         On July 12, 2022, the Court ordered that SCWC must produce the documents requested by the subpoena within 20 days.

·         A subpoena may be directed to a corporation without naming any particular officer, and the command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. Wilson v. United States, 221 U.S. 361, 374,376 (1911); See McLain v. Superior Court, 99 Cal. App. 2d 109, 114-115.

·         Morales testified that he is the sole owner of SCWC, and he is the person who has decided to ignore the subpoena. (Cohen Dec. 17).

·         The subpoena addressed alleged damages claimed by Plaintiff.

 

 

Tentative Ruling

 

The unopposed motion is granted, as prayed.

The Court will sign and file a proposed order from the moving party.

The failure to file a proper and timely opposition in trial court creates a waiver of the issues on any appeal.  Bell v. Am. Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602;  Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693.  To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. Cornwall v. Santa Monica Dairy Co . (1977) 66 Cal.App.3d 250, 252- 253.  Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions.  E.g., CCP §§2023.010(g), 2030.290(c);  R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.   Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. 

A motion lies to compel a non-party witness to obey a deposition subpoena, and contempt is available where the non-party consciously refused to attend the deposition, and had knowledge of the subpoena, and an ability to comply.  CCP §1987.1;  Person v. Farmers Ins. Group of Cos. (1997) 52 Cal.App.4th 813, 818;  Chapman v. Sup. Ct. (1968) 261 Cal.App.2d 194, 200. 

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.)