Judge Mark E. Windham, Case Number: 18STLC13954, Date: 2023-05-10 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Manzella v. Najjarin, et al.

MOTION FOR CONTEMPT AND SANCTIONS

(CCP §§ 1209(a)(5), 1212, 177, et seq.; LASC Rule 3.11)

Judgment Creditor Salvatore Manzella’s Motion for Order for Contempt and Request for Attorney’s Fees and Costs is GRANTED AS TO THE ORDER FOR CONTEMPT AGAINST JUDGMENT DEBTOR RAMI S. NAJJARIN AND CONTINUED AS TO THE REQUEST FOR ATTORNEY’S FEES AND COSTS TO JANUARY 25, 2024 AT 10:00 IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JANUARY 11, 2024, JUDGMENT CREDITOR IS TO FILE A DECLARATION IN SUPPORT OF THE REQUEST FOR ATTORNEY’S FEES AND COSTS.

Plaintiff Salvatore Manzella (“Judgment Creditor”) filed the instant action for breach of contract and fraud against Defendant Rami S. Najjarin (“Judgment Debtor”) on April 20, 2020. Judgment Debtor filed an answer on May 20, 2020.

On October 25, 2022, the Court granted the parties’ stipulation for entry of judgment in the amount of $21,008.44 principal, $13,316.00 attorney’s fees, and $639.92 costs. (Order for Entry of Judgment, 10/25/22.)

On February 22, 2023, Judgment Creditor filed an Application and Order for Appearance and Examination, which was set for May 11, 2023. On May 11, 2023, Judgment Debtor appeared, was sworn, and examined. (Minute Order, 05/11/23.) The examination was continued was June 15, 2023 with orders for Judgment Debtor to appear on that date and for the subpoena duces tecum to remain in full force and effect. (Ibid.) On June 15, 2023, Judgment Debtor called into the Court and indicated he could not appear due to health/back issues. (Minute Order, 06/15/23.) The Court ordered a bench warrant to be held until August 10, 2023 with bail set in the amount of $5,000.00. (Ibid.) The Court also ordered Judgment Debtor to produce the requested documents at the next hearing. (Ibid.)

On August 10, 2023, Judgment Debtor appeared, was sworn, and examined. (Minute Order, 08/10/23.) The Court recalled and quashed the bench warrant and continued the examination to October 5, 2023 to allow Judgment Debtor to bring the subpoenaed documents. (Ibid.) On October 5, 2023, Judgment Debtor appeared, was sworn, and examined. (Minute Order, 10/05/23.) The Court again continued the examination to November 9, 2023 to allow Judgment Debtor to bring the subpoenaed documents. (Ibid.)

The examination did not continue on November 9, 2023 due to the Court’s unavailability. (Minute Order, 11/09/23.) On the same date, Judgment Creditor filed the instant Motion for Order for Contempt and Request for Attorney’s Fees and Costs. No opposition has been filed to date.

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. (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. (Id. 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, subd. (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.) The moving party must demonstrate the elements of a punitive contempt beyond a reasonable doubt. (Moore v. Superior Court of Orange County (2020) 57 Cal.App.5th 441, 463; In re Cassil (1995) 37 Cal.App.4th 1081, 1087 [“When a contempt is classified as punitive in nature, the Fourteenth Amendment Due Process Clause requires the moving party prove its case beyond a reasonable doubt.”].)

Facts establishing the Court’s jurisdiction are set out in the supporting declaration of defense counsel, who attests to the issuance of the Court’s orders dated May 11, 2023 June 15, 2023, August 10, 2023, and October 5, 2023. (Motion, Schoen Decl., ¶¶3, 6, 7, 10.) The declaration further demonstrates that Judgment Debtor had knowledge of the orders. Judgment Debtor was served with notices of the order, appeared telephonically at the June 15, 2023 examination, and appeared in person on August 10, 2023 and October 5, 2023. (Id. at ¶¶4-7, 10 and Exh. B.)

Regarding Judgment Debtor’s ability to comply with the order, Judgment Creditor points to his evasive responses to examination questions and failure to produce the subpoenaed documents. Specifically, Judgment Debtor refused to answer questions about his residence, vehicles he owns, and whether he is married. (Id. at ¶4 and Exh. C.) The limited bank account statements Judgment Debtor produced did not cover the requested time period and were heavily redacted despite the Court’s multiple orders to produce the documents. (Id. at ¶¶6-9 and Exhs. E-H.) Judgment Debtor was again ordered to produce the documents without redaction. (Id. at Exh. I.) On November 7, 2023, Judgment Debtor produced supplemental responses that included unredacted bank statements and records reflecting all vehicles for which he is the registered owner. (Id. at ¶11 and Exh. J.) This demonstrates that Judgment Debtor had the ability to produce these documents but willfully failed to do so for the past six months. Nor has Judgment Debtor offered any opposition to the instant Motion.

On this basis, the affidavit in support of an order to show cause regarding contempt demonstrates all four elements beyond a reasonable doubt. “[I]f it be adjudged that the person is guilty of the contempt, a fine may be imposed on the person not exceeding one thousand dollars ($1,000), payable to the court, or the person may be imprisoned not exceeding five days, or both.” (Code Civ. Proc., 1218, subd. (a).) The requested contempt order is granted. However, Judgment Creditor’s request for an award of attorney fees and costs under Code of Civil Procedure section 1218, subdivision (a) is continued to January 25, 2024. The request is not supported by a supporting declaration, which must be filed with the Court by January 11, 2024.