Judge: Michael E. Whitaker, Case: 20STCV44263, Date: 2023-06-20 Tentative Ruling

Case Number: 20STCV44263    Hearing Date: June 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendants Ricky Max Munder and Dawn Caruso (collectively, Defendants) move the Court for an order requiring third party witness Elfrid Osorio (Deponent) to show cause why he should not be held in contempt of court for failing to appear as a witness for a deposition.  The motion is unopposed. 

DISCUSSION

Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.  (Code Civ. Proc., § 2020.220, subd. (c).)  A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.  (Code Civ. Proc., §§ 2020.240; see also Code Civ. Proc., § 1991 [“Disobedience to a subpoena . . . may be punished as a contempt by the court issuing the subpoena”].)   

The contempt at issue, failure to respond to a deposition subpoena, is “indirect,” which requires a 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 (2001) 91 Cal.App.4th 75, 81.)  “An 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 a 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 personal knowledge.  Upon receipt of the affidavit, a court may issue an order to show cause why a deponent should not be held in contempt.  (Code Civ. Proc., § 1212.) 

Here, Defendants advance the declaration of their counsel, Paul F. Sullivan (Counsel), in support of the motion.  Counsel states that on June 26, 2021, Deponent was personally served with the Subpoena for the Deposition of Elfrid Osorio (Deposition Subpoena) at Deponent’s residence located at 10404 DeSoto Avenue, Chatsworth, California, at 9:00 AM.  (Declaration of Paul F. Sullivan, ¶¶ 4-7; Exhibit B.)  The deposition date noted on the Deposition Subpoena was set for August 4, 2021, at 10:00 a.m. in El Segundo, California.  (Declaration of Paul F. Sullivan, ¶¶ 4, 7; Exhibit B.)  On said date, time and place, Deponent failed to appear at the deposition and, at 10:25 a.m., the Court Reporter took a Certificate of Non-Appearance. (Declaration of Paul F. Sullivan, ¶¶ 8-9.)

On August 12, 2021, Defendants mailed Deponent a letter inquiring about his failure to appear at the August 4, 2021 deposition.  (Declaration of Paul F. Sullivan, ¶¶ 9-10; Exhibit E.)  This letter included the Second Notice of Deposition of Witness Elfrid Osorio setting the deposition for August 30, 2021.  (Declaration of Paul F. Sullivan, ¶¶ 9-11; Exhibit F.)  On August 30, 2021, Deponent did not appear for that deposition.  (Declaration of Paul F. Sullivan, ¶ 12.) 

On January 31, 2023, Defendants issued another deposition subpoena for Deponent to appear for deposition on February 17, 2023.  (Declaration of Paul F. Sullivan, ¶¶ 15-16; Exhibit H.)  Deponent did not appear for the deposition on February 17, 2023.  (Declaration of Paul F. Sullivan, ¶¶ 17-18; Exhibit I.) [1]    

Therefore, the Court finds Counsel’s declaration is sufficient to show that Deponent had knowledge of the subject deposition subpoena. The advanced proof of service for the August 4, 2021 deposition is proper.  Next, the declaration sufficiently shows that Deponent had the ability to comply with the subject deposition subpoena in that Deponent was served with a duly served deposition subpoena but did not raise any objections.  In addition, Counsel’s declaration is sufficient to show that Deponent failed to obey the subject deposition subpoena.  Disobedience of a subpoena that has been duly served may constitute contempt.  (Code Civ. Proc., § 1991.)

Monetary Sanctions

Defendants seek monetary sanctions in connection with the motion.  Pursuant to Code of Civil Procedure, section 1218, subdivision (a), monetary sanctions are imposed in contempt proceedings under the following circumstances:

Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that 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. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney's fees and costs incurred by this party in connection with the contempt proceeding.

(Code Civ. Proc., § 1218, subd. (a).)

            While Defendants have established sufficient facts to persuade the Court to set an Order to Show Cause hearing regarding Deponent’s purported contempt, the issue of whether Deponent is guilty of the contempt has not yet been adjudicated, and will not be adjudicated until the Order to Show Cause hearing occurs.  The Court further cannot impose monetary sanctions against Deponent until it has determined that he is guilty of contempt.  Accordingly, the Court finds the issue of monetary sanctions is not ripe. 

CONCLUSION

            Therefore, the Court grants in part Defendants’ motion for an order requiring Deponent to show cause why he should not be held in contempt of court for failing to appear as a witness for  deposition pursuant to a duly-served deposition subpoena. 

The Court shall issue an Order to Show Cause Re Contempt (OSC) and sets the hearing for the OSC on AUGUST 25, 2023 at 1:30 PM in Department 32.  The  OSC hearing shall be conducted in-person, and as such all parties and counsel participating in the OSC hearing will be required to appear in-person.  Further, Defendants shall arrange for a court reporter to be present to record the proceedings, unless the Court orders otherwise. 

Further, Defendants shall prepare and lodge with the Court a proposed OSC, conforming to the Court’s ruling, on or before June 26, 2023.  Upon execution of the OSC by the Court, Defendants shall initiate personal service of the OSC and the charging affidavit (Declaration of  Counsel) on Deponent as required and file a proof of service regarding the same.  (Cedars-Sinai Imaging Med. Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1287.)

Apart from the orders above, Defendants shall provide notice of the Court’s ruling and file a proof of service regarding the same.