Judge: Richard S. Whitney, Case: 37-2022-00013262-CU-EN-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 12, 2024

06/14/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Enforcement Motion Hearing (Civil) 37-2022-00013262-CU-EN-CTL GAINES VS BROUILLETTE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S UNOPPOSED MOTION FOR ORDER OF CONTEMPT FOR DEFENDANT RONALD BROUILLETTE'S VIOLATIONS OF THE COURT'S ORDERS RE: PLAINTIFF'S MOTIONS TO COMPEL AND FAILURE TO APPEAR AT COURT-ORDERED STATUS CONFERENCES AND ORDER TO SHOW CAUSE HEARINGS, AND REQUEST FOR MONETARY SANCTIONS is GRANTED.

'When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily.' (Code Civ. Proc., § 1211.) Under CCP section 1209, contempt committed outside of the court's immediate view and presence is also punishable. '[T]he distinction, generally, is that, 'contempts committed in the view of the court may be punished instantly [as summary contempts] but contempts committed outside the view of the sentencing judge are 'nonsummary contempts' to which due process requirements apply.'' (Wanke, Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal.App.4th 1151, 1164 [Citation omitted].) The failures to appear at the court-ordered status conferences, the Order to Show Cause ('OSC') hearings, and to comply with this Court's discovery orders allegedly occurred both inside and outside of the Court's immediate view and presence. Therefore, the alleged contempt is both indirect and direct contempt.

An 'indirect contempt' requires a sequential series of steps: (1) an affidavit is presented to the court of the facts constituting the contempt; (2) a warrant of attachment or order to show cause is issued; (3) service of the warrant or order; (4) if there is a warrant (not applicable here), arrest and bail may occur; (5) a hearing, at which the judge investigates the charge and hears any answer, including witnesses; and (6) findings and punishment.

(Moore v. Superior Court of Orange County (2020) 57 Cal.App.5th 441, 454.) Under CCP section 1211, 'a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.' (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169.) CCP section 1209(a)(5) provides '[d]isobedience of any lawful judgment, order, or process of the court' constitutes contempt. (Code Civ. Proc., § 1209(a)(5).) Plaintiff IRA J. GAINES ('Plaintiff') met Plaintiff's burden by providing a declaration from Plaintiff's counsel that establishes that Defendant RONALD BROUILLETTE's ('Defendant') is guilty of contempt based on Defendant's violation of this Court's orders, as well as Defendant's failures to appear at multiple status conferences and OSC's. (Decl. Shull.) Calendar No.: Event ID:  TENTATIVE RULINGS

3103316 CASE NUMBER: CASE TITLE:  GAINES VS BROUILLETTE [IMAGED]  37-2022-00013262-CU-EN-CTL CCP section 1218 provides, in part: 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 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. 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(a).) 'Because a contempt proceeding is criminal in nature, due to the penalties which might be imposed [Citation], guilt must be established beyond a reasonable doubt. [Citations] 'The power to weigh evidence, however, rests exclusively with the trial court. [Citations.]'' (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) Plaintiff has sufficiently shown that the Court should issue an OSC regarding Defendant's alleged contempt. Failure to file opposition to the motion indicates Defendant's acquiescence that the motion is meritorious. (L.R. 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious']; See California Rules of Court, Rule 8.54(c).) Defendant does not deny Defendant is guilty of contempt. If Defendant fails to sufficiently demonstrate that Defendant is not guilty of contempt after Defendant's opportunity at the hearing, the Court will fine Defendant in the amount of $1,000 and order Defendant to pay Plaintiff's reasonable attorney's fees and costs incurred in connection with the contempt proceeding. The amount of Plaintiff's reasonable attorney's fees and costs will be determined by motion. The fine of $1,000 shall be paid within thirty (30) calendar days after an order is issued on the motion on Plaintiff's reasonable attorney's fees and costs. The OSC regarding Defendant's alleged contempt is hereby set for August 16, 2024. Plaintiff also requests the Court order Defendant to pay the $1,500 sanctions order that this Court previously stayed. The request is granted. Defendant is ordered to pay $1,500 in sanctions to Plaintiff within twenty (20) calendar days.

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