Judge: Teresa A. Beaudet, Case: 19STCV46503, Date: 2025-01-15 Tentative Ruling

Case Number: 19STCV46503    Hearing Date: January 15, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Curtis R. Olson (“Plaintiff”) filed this action on December 23, 2019 against a number of defendants, including Vidala Aaronoff. Plaintiff filed the operative Second Amended Complaint on November 17, 2020, alleging ten causes of action.

On August 29, 2023, Jane Doe filed a Cross-Complaint in this action against, inter alia, Plaintiff. The Cross-Complaint alleges nine causes of action.

On September 16, 2024, a hearing on an application for order for appearance and examination was held in this matter.

Plaintiff now moves for an order “finding attorney Steven Aaronoff in contempt for professional misconduct; disorderly conduct of proceedings; breaching the peace and boisterous conduct disrupting the due course of a judicial proceeding, and abuse of process of proceedings of the court as it relates to his conduct at the September 16, 2024 judgment debtor examination in this case.” Plaintiff also seeks sanctions against attorney Steven Aaronoff. Vidala Aaronoff and nonparty Steven J. Aaronoff, Esq. (jointly, the “Opposing Parties”) oppose.

Discussion

As set forth above, Plaintiff seeks an order “finding attorney Steven Aaronoff in contempt for professional misconduct; disorderly conduct of proceedings; breaching the peace and boisterous conduct disrupting the due course of a judicial proceeding, and abuse of process of proceedings of the court as it relates to his conduct at the September 16, 2024 judgment debtor examination in this case.” (Mot. at p. 2:5-9.)

Plaintiff cites to Code of Civil Procedure section 1211, subdivision (a), which provides that “[w]hen a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” 

Plaintiff also cites to Code of Civil Procedure section 1218, subdivision (a), which provides as follows:

“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.” ((Id., § 1218, subd. (a).)

Plaintiff asserts that the Court should “find Steven Aaronoff in contempt for violation of Code of Civil Procedure sections 1209(a)(2) and 1209(a)(4) for his conduct on September 16, 2024.” (Mot. at p. 3:12-13.) Code of Civil Procedure section 1209, subdivisions (a)(2) and (a)(4) provide that “[t]he following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:…(2) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding…(4) Abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court.” Plaintiff seeks sanctions for “sixteen…specific, separate instances of misconduct by attorney Steven Aaronoff…” (Mot. at p. 10:5-6.)

As an initial matter, the Opposing Parties assert that the motion is procedurally defective.  The Opposing Parties cite to Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286-1287, where the Court of Appeal noted as follows:

“A contempt proceeding is commenced by the filing of an affidavit and a request for an order to show cause. (§ 1211, subds. (a), (b)…After notice to the opposing party’s lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth.

(§ 1212; Arthur v. Superior Court (1965) 62 Cal. 2d 404, 408 [42 Cal. Rptr. 441, 398 P.2d 777] [“an order to show cause must be issued”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1999) P 9:715, p. 9(II)-47.)…The order to show cause acts as a summons to appear in court on a certain day and, as its name suggests, to show cause why a certain thing should not be done. (Morelli v. Superior Court (1968) 262 Cal. App. 2d 262, 269 [68 Cal. Rptr. 572].) Unless the citee has concealed himself from the court, he must be personally served with the affidavit and the order to show cause; otherwise, the court lacks jurisdiction to proceed. (§ 1015 [in civil actions in which a party is represented by an attorney, “the service of papers, when required, must be upon the attorney instead of the party, except service of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt”]; see also § 1016; Arthur v. Superior Court, supra, 62 Cal. 2d at p. 408; and see Weil & Brown, supra, P 9:716, p. 9(11)-47.).” (Emphasis in original.)

In his declaration in support of the opposition, Seven Aaronoff states that he has “never been personally served with a copy of Mr. Eballar’s moving papers.” (Aaronoff Decl., ¶ 13.) This point does not appear to be addressed by Plaintiff in the reply. Indeed, the proof of service attached to the motion indicates that the motion was served by mail and email on October 23, 2024. In addition, the Opposing Parties assert that here, Plaintiff has “bypassed the[] mandatory procedures by…[f]iling a regular motion rather than seeking an OSC…” (Opp’n at p. 4:12-14.) Indeed, in the notice of motion, Plaintiff states that “[i]n the alternative, Plaintiff moves this Court for an order setting an OSC as to why attorney Steven Aaronoff should not be found in Contempt for the conduct described herein.” (Mot. at p. 2:14-15, emphasis added.)

In light of the foregoing procedural issues, the Court denies Plaintiff’s motion.

The Court also notes that in the reply, Plaintiff asserts that “[b]eyond its contempt powers, this Court has broad authority to control its proceedings on its own, with or without a motion. It can do ‘whatever is necessary and appropriate’ to ensure orderly administration of justice. This authority includes ordering Attorney Aaronoff to comply with this Court’s Guidelines for Civility as if they were Rules of this Court, and to sanction or hold him in contempt for any violations thereof. Plaintiff respectfully requests that, in addition to an OSC re Contempt, this Court enter such order.” (Reply at p. 2:21-26.) But in the notice of motion, Plaintiff did not move for an order that Mr. Aaronoff “comply with this Court’s Guidelines for Civility as if they were Rules of this Court.” (Reply at p. 2:24.)  The Court notes that “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.)

Although the specific request belatedly made by Plaintiff is denied for lack of notice, the Court, based upon its inherent power to ensure the orderly administration of justice, does issue the following order based upon its review of the transcripts provided by the parties:

Mr. Aaronoff may not interpose speaking objections of any sort at any further examination or deposition in this action. This includes adding words after a question, such as “if you recall” or “to the extent you remember.” Mr. Aaronoff may not make any suggestions or comments whatsoever on the questions asked by opposing counsel, such as “do you mean ___”.  Mr. Aaronoff may make recognized evidentiary objections only, such as “vague” “ambiguous” and other objections that go to the form of the question. (Note:  Other objections such as hearsay are automatically preserved and should not be made at the examination or deposition.) Mr. Aaronoff may not make any spontaneous or gratuitous comments, remarks, phrases or the like such as “Doo Doo Doo” (see page 85 of the transcript attached to the Eballar Declaration, Ex. A). Finally, the examination or depositions in this case will start at the noticed time. The parties and their counsel must take care of the need for food and water in advance of the start time for the deposition.

Lastly, the Court notes that in the opposition, the Opposing Parties request that the Court “sua sponte dismiss this action.” (Opp’n at p. 3:13-14.) The Opposing Parties do not cite any legal authority to support such request and the Court declines to dismiss the action. 

Conclusion

Based on the foregoing, Plaintiff’s motion for an order finding attorney Steven Aaronoff in contempt is denied. Plaintiff’s request for attorney’s fees is denied. Plaintiff is ordered to give notice of this ruling.¿ 

DATED:  January 15, 2025                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court