Judge: Mark A. Young, Case: 19SMCV00329, Date: 2022-08-09 Tentative Ruling

Case Number: 19SMCV00329    Hearing Date: August 9, 2022    Dept: M

CASE NAME:           Dutton, et al., v. Domanovski, et al.

CASE NO.:                19SMCV00329

MOTION:                  Motion for Issuance of OSC Re: Contempt

HEARING DATE:   8/9/2022

Legal Standard

Courts have an inherent power to enforce compliance with their orders and rulings through contempt proceedings. (In re M.R. (2013) 220 Cal.App.4th 49, 56.) Courts also have statutory authority to enforce compliance with their orders. (CCP § 128(a)(4).) Code of Civil Procedure section 1209(a)(5) expressly provides the Court with the power to punish “[d]isobedience of any lawful judgment, order, or process of the court.”

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.) Contempt committed in the immediate view and presence of the Court may be punished summarily, but contempt committed outside the Court’s presence requires an affidavit presenting the facts constituting the contempt. (CCP § 1211(a).) “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.” Thereafter, an order to show cause must be issued and a hearing on the facts must be held by the court. (Arthur v. Superior Court (1965) 62 Cal.2d 404, 407-408.)

To justify the application, the requirements “can be easily satisfied with a declaration under penalty of perjury[.]” (M.R., supra, 220 Cal.App.4th at 63.) The declaration need only make a prima facie showing of the following elements: “(1) the making of the order; (2) knowledge of the order; (3) ability of respondent to render compliance; and (4) willful disobedience of the order.” (People v. Superior Court (1965) 239 Cal.App.2d 99, 104; see also In re Morelli (1970) 11 Cal.App.3d 819, 832-33.)

Civil contempt proceedings are quasi-criminal in nature because of the penalties which may be imposed. (In re Kreitman (1995) 40 Cal.App.4th 750, 754.) The punishment for contempt is up to five days' imprisonment and/or a fine of up to $1,000 for each contempt. (See CCP § 1218(a).) Thus, “guilt must be established beyond a reasonable doubt.” (Ross v. Sup. Ct. (1977) 19 Cal.3d 899, 913.)

Discussion

Plaintiffs/Judgment Creditor (JC) move for an order to show cause for Ouriel failure to obey this Court’s discovery orders.

On December 10, 2021, the Court granted JC’s motions to compel further responses to SI and initial responses to RPD. The 12/10 Order required Ouriel to respond to demand nos. 36, 37, 64-69, and provide further responses to interrogatories nos. 11, 12, 19, and 29 (RJN, pp. 49, 52; Ex. C.) On December 28, 2021, Ouriel was served with the December 10, 2021 Order. (See Notice of Entry of Judgment or Order filed 1/3/22.)

JC argues that Ouriel’s production and further responses were deficient. For instance, demand nos. 36-37 required Ouriel to produce all writings manifesting his receipt of income in 2020, and 2021 (RJN, p. 49; Ex. C.).  Ouriel’s production did not include or identify documents responsive to these two demands. (Staub Decl. ¶ 10.) Similarly, demand nos. 64-69 called for Ourier to produce his federal, and state income tax returns for 2018-2020, but Ouriel did not produce his income tax returns.

As to the special interrogatories, Ouriel had to respond to interrogatory #11 (RJN, p. 52.). Ouriel provided no response to interrogatory #11. Interrogatory #12 required that he identify the legal entities that owed him a 1099 tax from after January 1, 2020.  (RJN, p. 52.) Ouriel’s response to #12 failed to identify any entities and stated that he was not in possession, custody or control of such item.  This response, however, is evasive since the interrogatory sought information, not the 1099 document (Staub Decl., ¶ 13, Ex. E.)  Ouriel also was to respond to interrogatory #19, which required him to provide his gross income in 2021 (RJN, p. 52.)  Ouriel’s response did not provide the information but an “approximation” (Staub Decl., ¶ 14, Ex. E.)  JC further argues that #29 was deficient, but JC’s belief that it was inaccurate to identify that address is insufficient. 

Based on the provided affidavit, JCs demonstrate the requirements for the issuance of an OSC re contempt. The Court made the December 10, 2021, Order. Further, Ouriel knew of the December 10, 2021, Order. Notably, Ouriel waived notice at the hearing, and was also served with notice on December 28, 2021.  As noted above, the affidavit shows that Ouriel did not respond to demand nos. 36, 37, 64-69, and interrogatories nos. 11, 12, 19 in accordance with the December 10, 2021 Order. Based on this conduct, the Court may infer Ouriel’s willfulness.

Accordingly, Plaintiffs’ motion is GRANTED. The Court sets an OSC re: Contempt for _____________________.  Personal service is required of the OSC and charging affidavit against Ouriel. (Cedars-Sinai Imaging Med. Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286-1287.)  If Ouriel fully complies with his discovery obligations within the next ten days as set forth above, then the Court will consider taking the OSC off calendar.