Judge: Monica Bachner, Case: 21STCV35883, Date: 2022-12-13 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV35883    Hearing Date: December 13, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiffs Dominga Natividad’s and Maria Luisa Dacuyan Talban’s unopposed motion for an OSC Re: Contempt against third party, Dollar Hits Temple, Inc., is granted.  The Court sets an OSC Re: Contempt why the Court should not impose sanctions against Dollar Hits Temple, Inc., in the amount of $500 plus $3,157.36 on February 14, 2022 at 8:30 a.m., for failure to comply with the Plaintiffs’ deposition subpoena for September 7, 2022.   Plaintiffs are to personally serve the supporting affidavit and order on the deponent. 

Plaintiffs’ unopposed motion for an OSC Re: Contempt against third party, El Majahaul Pupuseria Restaurant, is granted.  The Court sets an OSC Re: Contempt why the Court should not impose sanctions against El Majahaul Pupuseria Restaurant, in the amount of $500 plus $2,857.36 on February 14, 2022 at 8:30 a.m.,  for failure to comply with Plaintiffs’ deposition subpoena for September 7, 2022.   Plaintiffs are to personally serve the supporting affidavit and order on the deponent.

          Plaintiffs Dominga Natividad (“Natividad”) and Maria Luisa Dacuyan Talban (“Dacuyan Talban”) (collectively, “Plaintiffs”) move for an order holding non-party Dollar Hits Temple, Inc. (“Dollar Hits”) in contempt of court for failing to comply with Plaintiffs’ notice to appear for deposition.  (Notice of Motion Dollar Hits, pg. 2; C.C.P. §1209(a)(10); Local Rule 3.11.)  Plaintiffs request the Court award monetary sanctions in the amount of at least $1,000.00 against Dollar Hits for contemptuous conduct, plus attorneys’ fees and costs in the amount of $3,267.36 for expenses incurred in filing and preparing the instant motion.  (Notice of Motion Dollar Hits, pg. 2.)

Plaintiffs move for an order holding non-party El Majahaul Pupuseria (“Pupuseria”) in contempt of court for failing to comply with Plaintiffs’ notice to appear for deposition.  (Notice of Motion Pupuseria, pg. 2; C.C.P. §1209(a)(10); Local Rule 3.11.)  Plaintiffs request the Court award monetary sanctions in the amount of at least $1,000.00 against Pupuseria for contemptuous conduct, plus attorneys’ fees and costs in the amount of $2,967.36 for expenses incurred in filing and preparing the instant motion.  (Motion Pupuseria, pg. 7.)    

          Plaintiffs filed the instant motions on October 21, 2022, with accompanying declarations of David Yadidi (“Yadidi”) in support of the motions. In addition, Plaintiffs filed proof of service indicating that Dollar Hits had been served by substituted service with the deposition subpoena on August 5, 2022.  (Decl. of Yadidi Dollar Hits, Exh. 2.)  Plaintiffs filed proof of service indicating that Pupuseria had been served by substituted service with the deposition subpoena on August 3, 2022.  (Decl. of Yadidi Pupuseria, Exh. 2.)  Both subpoenas included a warning that disobedience of the subpoena could result in sanctions in the amount of $500 and damages from the failure to obey. Plaintiffs filed proofs of service that the supporting papers for the instant motions were served upon Defendant, and upon Dollar Hits and Pupuseria by mail.  (Motion Dollar Hits, pg. 11; Motion Pupuseria, pg. 11.)  The proof of service as to Dollar Hits is unsigned. As of this hearing, neither Dollar Hits nor Pupuseria filed oppositions.

          Motion for Contempt and OSC Re: Contempt

          C.C.P. §1991.1 provides that “Disobedience to a subpoena requiring attendance of a witness before an officer out of court in a deposition . . . may be punished as contempt, as provided in [C.C.P. 2023.030(e)], without the necessity of a prior order of court directing compliance by the witness.”  In addition, C.C.P. §1209(a)(5) provides that disobedience of any order is a contempt of the authority of the court. 

          C.C.P. §2020.240 provides that, “[a] deponent who disobeys a deposition subpoena in any manner described [C.C.P. §2020.220(c)] may be punished for contempt under Chapter 7 (commencing with Section 2023.010) without the necessity of a prior order of court directing compliance by the witness. The deponent is also subject to the forfeiture and the payment of damages set forth in Section 1992.”

“It is axiomatic that a court may not punish a contempt committed out of its presence without a full hearing… at which [the alleged contemner] has the opportunity to appear by reason of personal service of an order to show cause [C.C.P. §§1211, 1212].  Neither warrant nor order to show cause may issue except on proper affidavit setting forth the full facts of the alleged contempt.”   (Lund v. Superior Court of Orange County (1964) 61 Cal.2d 698, 713.)

As discussed below, the evidence submitted suggests that Dollar Hits and Pupuseria committed contempt outside the Court’s presence by disobeying the deposition notices that they appear for a deposition on a certain date.  Accordingly, the Court holds issues an order to show cause why Dollar Hits and Pupuseria should not be held in contempt for their failures to appear with the deposition subpoena. 

“‘[A] valid order and judgment of indirect contempt must cover the following elements: the issuance of an order, the contemner’s knowledge of the order, the contemner’s ability to obey it, and the contemner’s willful disobedience. [Citation.]  The order and judgment must state evidentiary facts supporting a finding of each of these elements, except that it need not state such facts in support of the finding of willfulness, which may be inferred from the circumstances.’ [Citation.]”  (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169.)

Plaintiffs submitted sufficient evidence supporting Dollar Hits and Pupuseria willfully disobeyed Plaintiffs’ deposition subpoenas.  Specifically, Plaintiffs submitted evidence that on August 5, 2022, Dollar hits had been served by substituted service with the deposition subpoena and Pupuseria had been served by substituted service with the deposition subpoena on August 3, 2022.  (Decl. of Yadidi Dollar Hits, Exh. 2.; Decl. of Yadidi Pupuseria, Exh. 2.)   Plaintiffs submitted evidence that the deposition subpoenas included a warning in bold letters, “Disobedience of this subpoena may be punished as contempt by this Court. You will be liable for the sum of $500 and all damages resulting from your failure to obey.”  (Decl. of Yadidi Dollar Hits, Exh. 1.; Decl. of Yadidi Pupuseria, Exh. 1.)  Plaintiffs submitted evidence that Dollar Hits and Pupuseria did not call prior to or during the scheduled depositions indicating they would not appear, and instead failed to appear on September 7, 2022, at which time Plaintiffs took a notice of non-appearances.  (Decl. of Yadidi Dollar Hits ¶6, Exh. 3.; Decl. of Yadidi Pupuseria ¶6, Exh. 3.)  Given the above recited facts, Court finds an OSC re: contempt is warranted.  Defendant is to personally serve the supporting affidavit and order on the deponents.

          Request for Monetary Sanctions

As to a nonparty, sanctions of $500 to the deposing party, plus any damages that the party sustained because of the failure to comply may be awarded.  (C.C.P. §§2020.240, 1992.) Plaintiffs’ counsel declares his hourly rate is $350.00, and he incurred at least 2 hours preparing for the deposition of Dollar Hits and an additional 1.5 hours waiting for Dollar Hits to appear at the noticed deposition.  (Decl. of Yadidi Dollar Hits ¶7.)  Plaintiffs’ counsel declares he paid the court reporter present at the noticed deposition $625.00 for her attendance and for the notice of non-appearance.  (Decl. of Yadidi Dollar Hits ¶7.)  Plaintiffs’ counsel declares he spent $82.36 to serve the deposition subpoena on Dollar Hits.  (Decl. of Yadidi Dollar Hits, Exh. 4.)  Plaintiff’s counsel declares he spent 2.5 hours preparing the instant motion against Dollar Hits and anticipates an additional 1 hour spent arguing this motion. (Decl. of Yadidi Dollar Hits ¶7.)  Plaintiffs’ counsel requests damages in the amount of $3,967.36 against Dollar Hits.  (Decl. of Yadidi Dollar Hits ¶7.)  Accordingly, the Court issues an order to show cause why Dollar Hits should not be sanctioned in the amount of $500 plus $3,157.36 (7 hours x $350/hr + $625+ $82.36)

Plaintiffs’ counsel declares he incurred at least 2 hours preparing for the deposition of Pupuseria and an additional 1.5 hours waiting for Pupuseria to appear at the noticed deposition.  (Decl. of Yadidi Pupuseria ¶7.)  Plaintiffs’ counsel declares he paid the court reporter present at the noticed deposition $325.00 for her attendance and for the notice of non-appearance.  (Decl. of Yadidi Pupuseria ¶7.)  Plaintiffs’ counsel declares he spent $82.36 to serve the deposition subpoena on Pupuseria.  (Decl. of Yadidi Pupuseria, Exh. 4.)  Plaintiff’s counsel declares he spent 2.5 hours preparing the instant motion against Pupuseria and anticipates an additional 1 hour spent arguing this motion. (Decl. of Yadidi Pupuseria ¶7.)  Plaintiffs’ counsel requests damages in the amount of $2,967.36 against Pupuseria.  (Decl. of Yadidi Pupuseria ¶7.)  Accordingly, the Court issues an order to show cause why Pupaseria should not be sanctioned in the amount of $500 plus $2,857.36 (7 hours x $350/hr + $325+ $82.36).

Plaintiff to give notice.

Dated:  December _____, 2022

Hon. Monica Bachner

Judge of the Superior Court