Judge: Melvin D. Sandvig, Case: 22CHCV00226, Date: 2024-07-19 Tentative Ruling
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Case Number: 22CHCV00226 Hearing Date: July 19, 2024 Dept: F47
Dept. F47
Date: 7/19/24
TRIAL DATE: 8/18/25
Case #22CHCV00226
MOTION FOR
ORDER TO SHOW CAUSE RE CONTEMPT & FOR SANCTIONS
Motion filed on 2/13/24.
MOVING PARTY: Defendant/Cross-Complainant Jack Shut
RESPONDING PARTY: Defendant/Cross-Defendant Ignat
Stepanenko (defaulted)
RULING: The motion is placed off calendar.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of Plaintiff Tyler Rayne’s
(Plaintiff) claim that Defendants/Cross-Defendants Ignat (Ignat) and Daria (Daria)
Stepanenko, husband and wife, forged a grant deed conveying Plaintiff’s
one-half interest in their deceased mother’s residential property to Ignat. Thereafter, Ignat gave
Defendant/Cross-Complainant Jack Shut (Shut) a deed of trust to secure a
$247,000.00 mortgage against the property.
In his complaint, Plaintiff alleges that he and Ignat’s
mother, Yelena Stepanenko (Yelena) acquired the fee simple title interest in
the subject residential real property in Canoga Park (commonly known as 23774
Burton Street, Los Angeles, California 91304) (the Property) via a Grant Deed
recorded on 9/27/13. (Complaint ¶16; Shut’s Request for Judicial Notice (RJN),
Ex. 1, 9/27/13 Grant Deed). After a
series of conveyances in 2019, title to the Property vested in Yelena, as
Trustee of the Yelena Stepanenko Revocable Trust Dated September 17, 2015
(Yelena Trust) and Plaintiff by way of a Quitclaim Deed recorded on 9/25/19. (RJN, Ex.2-5, 9/18/15 Grant Deed, 5/10/19
Grant Deed, 7/19/19 Grant Deed, 9/24/19 Quitclaim Deed).
Yelena died on 5/18/21.
(RJN, Ex.6).
Plaintiff alleges that “Defendant IGNAT STEPANENKO
unlawfully converted the Subject Property and the funds that he received as a
result of the Trust Deed in the amount of two-hundred thousand dollars
($200,000) as the borrower without Plaintiff’s knowledge, authorization or
consent.” (Complaint, ¶ 64). Plaintiff further alleges that “Defendants
caused a false Grant Deed to be recorded purporting to have been executed on
November 19, 2021 by Plaintiff, a single man, and further purporting to grant
all of his interest in the Real Property to Defendant IGNAT STEPANENKO, a
married man as his sole and separate property.” (Complaint ¶65). This Grant Deed, recorded on 11/23/21,
conveyed the fee simple interest in the Property from both Ignat, as Successor
Trustee of the Yelena Trust, and Plaintiff to Ignat alone. (RJN, Ex.7, 11/23/21
Grant Deed; Complaint ¶19). Plaintiff contends that his signature on this
Grant Deed is a forgery. (Complaint
¶¶21-24).
On 11/23/21, a Deed of Trust in favor of beneficiary Shut
was recorded to secure a $200,000.00 loan from Shut to Ignat. (RJN, Ex.8, 11/23/21 Deed of Trust).
By way of his complaint filed on 4/1/22, Plaintiff seeks
to void the 11/23/21 Grant Deed and Deed
of Trust. (Complaint ¶¶28-29).
On 6/30/22, Shut filed an answer to Plaintiff’s complaint
and a cross-complaint which seeks to affirm the validity of the 11/23/21 Deed
of Trust as a lien against the Property or in the alternative to establish an
equitable lien for the amount Shut’s loan proceeds paid off existing liens on
the Property, as well as reforming an erroneous legal description in the
11/21/22 Grant Deed and Deed of Trust. (See
6/30/22 Cross-Complaint, generally).
Having failed to respond to either the complaint or
cross-complaint, Ignat and Daria’s defaults on both pleadings have been
entered. (See Default entered
5/27/22 on Complaint; Default entered 11/23/22 on Cross-Complaint).
On 9/8/23, Shut caused Ignat to be personally served with
a Deposition Subpoena For Personal Appearance And Production Of Documents And
Things (Subpoena) at the Property which Shut contends is Ignat and Daria’s
residence. (Leonhardt Decl., Ex.9,
Subpoena). The Subpoena ordered Ignat’s
appearance for deposition on 10/2/23 and his production of records responsive
to several document categories. Id.
Pursuant to CCP 2025.220(b), on 8/30/23, Shut’s counsel
served a Notice of Deposition for the Subpoena served on Ignat to the parties
in the action. (Leonhardt Decl., Ex.10,
Notice of Deposition).
On Tuesday, 9/26/23, counsel for Shut received a
telephone call from a woman identifying herself as Daria Stepanenko (Daria),
Ignat’s wife using telephone number (424) 522- 2711. According to Daria, Ignat
was undergoing an undefined medical procedure, and she was unsure whether he
would be able to testify on 10/2/23, the date specified in the Subpoena. She promised to call back Shut’s counsel the
next day if Ignat was unable to appear at the deposition and to provide
documentation of his medical condition. Shut’s
counsel responded that, unless an alternative date could be confirmed, the
deposition would go forward as scheduled in the absence of speaking with Ignat
or having some documentation showing he was unavailable due to health issues. Neither Daria nor Ignat contacted Shut’s
counsel or provided any documentation at all. Shut’s counsel called Daria back
at the same number and left messages, which were never returned. (Leonhardt Decl. ¶15).
On 10/2/23, Ignat failed to appear for his deposition and
failed to produce responsive records. (Leonhardt Decl. ¶16, Ex.11, Affidavit of
Failure of Witness to Appear for Deposition and Proceedings, dated
10/2/23). Ignat failed to contact Shut’s
counsel to request rescheduling of the deposition. (Id. at ¶16).
On 10/10/23, Shut’s counsel sent Ignat a meet and confer
letter addressing his non-compliance with the Subpoena. (Leonhardt Decl., Ex.12, Letter to Ignat,
dated 10/10/23). Shut’s counsel received
no response. (Leonhardt Decl. ¶17).
Therefore, on 2/13/24, Shut filed and served on the other
parties who have appeared in this action the instant motion seeking an order to
show cause re contempt and for sanctions against defaulted
Defendant/Cross-Defendant Ignat Stepanenko for his refusal to comply with a
Deposition Subpoena for Personal Appearance and Production of Documents and
Things, and for an award of sanctions in the amount of $3,014.00 against Ignat
Stepanenko. On 2/16/24, Shut filed a
proof of service indicating the motion was served by U.S. Mail on Ignat and
Daria on 2/16/24.
ANALYSIS
An indirect contempt proceeding is commenced by the
filing of an affidavit and a request for an order to show cause. Cedars-Sinai Imaging Medical Group
(2000) 83 CA4th 1281, 1286 citing CCP 1211(a).
It has been held that after notice to the opposing party’s counsel, if
the court is satisfied with the sufficiency of the affidavit, it must sign an
Order to Show Cause re Contempt in which the date and time of the hearing are
set forth. Id. citing CCP 1212.
Since Ignat and Daria are in default and not represented
by counsel, Shut served them with notice of the hearing on this matter by mail. (See Proof of Service filed
2/16/24). Service on Ignat and Daria by
mail is insufficient because neither Ignat nor Daria have appeared and
therefore, neither have an address of record by which the Court can confirm
such service was proper. Additionally,
neither Igna nor Daria have responded to the motion to cure the defect in
notice.
CONCLUSION
The Court finds the declaration of attorney Donald E.
Leonhardt sufficient to support the issuance of an Order to Show Cause Re
Contempt against Ignat. However, due to
the insufficient notice of the request for an Order to Show Cause Re Contempt
on Ignat and Daria, the matter is placed off calendar.
Additionally, while the motion discusses the different
punishments which can be imposed if a person is found guilty of contempt and
requests that the Court enter an order holding Ignat in contempt, Shut does not
specify which contempt sanctions he seeks to have the Court impose on Ignat at
the requested Order to Show Cause (i.e., fine, imprisonment up to 5 days, both;
imprisonment until Ignat complies or agrees to comply with the Deposition
Subpoena). (See Motion, p.6:7-10). Rather, it appears that Shut is merely
seeking an order compelling Ignat to comply with the deposition subpoena (i.e.,
appears for his deposition and produce documents) and awarding monetary sanctions. (See Motion, p.8:17-21).