Superior Court of California

County of Los Angeles

LESTER JIMENEZ,

Plaintiff,

vs.

25 ART, L.P., et al.,

Defendants.

Case No.: 22STCV00277

DEPARTMENT 45

[TENTATIVE] ORDER

Action Filed: 01/04/22

Trial Date: 01/12/26

Hearing Date: September 6, 2024

Motions for an Order of Contempt and Imposing Contempt Sanctions:

Moving Party: Defendants 25 Art, L.P. and Frederick Leeds

Responding Party: None

The court considered the moving papers. No opposition has been filed.

The court DENIES without prejudice the motions for order of contempt and imposing contempt sanctions against Gloria Aguirre and Maria Espinoza. The request for monetary sanctions is also denied without prejudice.

Background

On January 4, 2022, Plaintiff Lester Jimenez (“Plaintiff”) filed this action against Defendants 25 Art, L.P., Frederick Leeds, and David Oved for negligence and premises liability. Plaintiff alleges that he was seriously injured when he fell down a flight of stairs on a fire escape attached to a building on South Hobart Boulevard in Los Angeles, California, that is owned, operated, managed, or controlled by Defendants.

On April 5, 2024, and April 15, 2024, Defendants 25 Art, L.P. and Frederick Leeds (“Defendants”) filed these two motions for an order of contempt and imposing contempt sanctions including the issuance of an arrest warrant for refusal to comply and obey a court order compelling Gloria Aguirre and Maria Espinoza to comply with a subpoenaed deposition for appearance and production of documents pursuant to court order.

Legal Standard

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 Particular acts constituting contempt are enumerated by statute, including:¿ “(d)isobedience of any lawful ... order, or process of the court”;¿ “(d)isobedience of a subpoena duly served”; “refusing to ... answer as a witness”;¿ “(d)isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of ... trial.” (Code Civ. Proc., § 1209(a); see also Code Civ. Proc. § 1991 [disobedience of subpoena]; and Pen.C. § 166 [misdemeanor].) In addition, courts have inherent power to punish acts that interfere with the orderly conduct of proceedings. (Code Civ. Proc., § 128, subd. (a)(3); In re Buckley (1973) 10 Cal.3d 237, 247.)

Sanctions

CCP section 1218 provides for reasonable attorney’s fees and costs to the party initiating the contempt proceeding if the court finds the person proceeded against is guilty of contempt. (Code Civ. Proc., § 1218(a).)

CCP section 177.5 provides the following:

A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both. Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.

(Code Civ. Proc., § 177.5.)

“The imposition of monetary sanctions under section 177.5 ‘is within the discretion of the trial court.’” (People v. Ward (2009) 173 Cal.App.4th 1518, 1527 (quoting Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726).) “‘That discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances.’” (Id. (quoting Winikow, supra, 82 Cal.App.4th at 726).)

Discussion

Defendants move for an order of contempt to compel Maria Espinoza and Gloria Aguirre to comply with the court’s orders for personal appearance and production of documents at deposition, including the issuance of a bench warrant. Defendants also seek sanctions against Espinoza and Aguirre.

On March 5, 2024, and March 18, 2024, the court granted Defendants’ motions and ordered Maria Espinoza and Gloria Aguirre to appear for deposition and produce documents on March 19, 2024, and April 15, 2024. (Ruiz Decl., Exh. A.) Defendants served a notice of the court’s ruling on Aguirre and Espinoza. (Id., Exh. B.) They did not appear. (Id., Exh. C.)

The contempt at issue is “indirect,” which requires a more elaborate procedure to notify the person(s) sought to be charged and to allow him or her an opportunity to be heard. (Code Civ. Proc., §§ 1211–1218; see also Hanson v. Superior Court, supra, 91 Cal.App.4th at p. 81.) In general, the first step in an indirect contempt proceeding is an application for an issuance of an Order to Show Cause. (Code Civ. Proc., §§ 1211, subd. (a).)

In the application, “[a]n affidavit must be presented to the court stating the facts constituting the contempt, an order to show cause must be issued, and hearing on the facts must be held by the judge.” (Arthur v. Superior Court (1965) 62 Cal.2d 404, 407-408.) Since the acts involved did not occur in the court’s presence, the affidavit (declaration) must cover each element of the commission of the contempt. (Code Civ. Proc., § 1211.5.) This affidavit serves as the “complaint” in indirect contempt proceeding (Lyon v. Superior Court (1968) 68 Cal.2d 446, 452) and must contain factual allegations based on firsthand knowledge.

In indirect contempt proceedings based on disobedience of a prior court order, a valid judgment must meet “strict requirements.”¿ Each of the following must be established: (1) the rendition of a valid court order; (2) actual knowledge of the order; (3) ability to comply; and (4) willful disobedience of the order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784 [repeated failures to turn over documents as ordered].) Upon receipt of the affidavit, the court usually issues an order to show cause (OSC) why the person should not be held in contempt. (Code Civ. Proc., § 1212.)

The moving/citing party must then serve the OSC re Contempt and supporting affidavits/declarations on the cite/respondent in the same manner as a service of summons – usually personal service. (Lund v. Super. Ct. (1964) 61 Cal.2d 698, 713; Cedars-Sinai Imaging Medical Group v. Super. Ct. (2000) 83 Cal.App.4th 1281, 1286.)

Although not required, the alleged contemnor may respond to the affidavit and OSC by counteraffidavits or declarations. These affidavits serve as the “answer” to the charging allegations in the original affidavit. (Lyon v. Superior Court, supra, 68 Cal.2d at p. 452.) Such affidavits are not mandatory, however. The alleged contemnor may assert his or her defenses entirely at the hearing. (Code Civ. Proc., § 1217.)

Here, Defendants have skipped the important initial step of seeking the issuance of an OSC. There is no affidavit seeking a request for an order to show cause. Nor is counsel’s current declaration sufficient to establish the facts constituting the contempt. Specifically, the declaration is silent as to whether Aguirre and Espinoza have the ability to comply and whether they willfully disobeyed the court’s orders. As no such affidavit has been filed, the Court has not issued an OSC. Nor have Defendants have not served on the respondents any notice of an OSC by personal service.

Accordingly, the Court is without jurisdiction to proceed with any contempt proceeding against Aguirre and Espinoza. Defendants’ motions are DENIED without prejudice.

Defendants also request attorney’s fees and costs. CCP section 1218 provides for reasonable attorney’s fees and costs if the court finds the person proceeded against is guilty of contempt. (Code Civ. Proc., § 1218(a).) As the motion is denied, Defendants are not entitled to attorney’s fees and costs pursuant to CCP section 1218.

Defendants also request sanctions in the amount of $1,500 be imposed against Aguirre and Espinoza pursuant to CCP section 177.5. For the same reasons, the court cannot do so. (See People v. Hundal (2008) 168 Cal. App. 4th 965, 970, (“Due process, as well as the statute itself, requires that a person against whom Code of Civil Procedure section 177.5 sanctions may be imposed be given adequate notice that such sanctions are being considered, notice as to what act or omission of the individual is the basis for the proposed sanctions, and an objective hearing at which the person is permitted to address the lawfulness of the order, the existence of the violation, and the absence of good cause or substantial justification for the violation.”).) Defendants may seek sanctions once they follow the procedural requirements to initiate contempt proceedings.

It is so ordered.

Dated: September 6, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court