Judge: Theresa M. Traber, Case: 20STCP01943, Date: 2022-08-25 Tentative Ruling

Case Number: 20STCP01943    Hearing Date: August 25, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 25, 2022                     TRIAL DATE: NOT SET

CASE:                         Ofek Rachel, Ltd., et al. v. Suki Ben Zion

CASE NO.:                 20STCP01943           

APPLICATION FOR ORDER TO SHOW CAUSE WHY RESPONDENT CHAIM COHEN SHOULD NOT BE HELD IN CONTEMPT OF COURT

MOVING PARTY:               Petitioners Ofek Rachel, Ltd. and M.M.N. Yad David USA, Ltd.

RESPONDING PARTY(S): Non-party Respondent Chaim Cohen

CASE HISTORY:

• 06/17/20: Petition to Quash Service of Subpoena and Protective Order filed.
• 01/13/21: Petition to Quash Service of Subpoena and Protective Order Granted
• 03/19/21: Petition of Judgment Creditors for Order Directing Compliance with Deposition Subpoena and Subpoena for Production of Business Records filed.
• 04/19/21: Petition granted in part.
• 02/09/22: Second Petition of Judgment Creditors for Order Directing Compliance with Subpoena filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Plaintiffs Ofek Rachel Ltd. and M.M.N. Yad David USA Ltd. obtained a judgment against Defendant Suki Ben Zion in a New York case based on a previous money judgment entered in their favor in Israel.

            Petitioners move for the Court to set a hearing on an order to show cause why Respondent should not be held in contempt of court.

TENTATIVE RULING:

            Petitioners’ Application for an Order to Show Cause Why Respondent Chaim Cohen Should Not Be Found in Contempt of Court is GRANTED.

            The Court sets this matter to be heard on September 30, 2022.

DISCUSSION:

            Petitioners move for the Court to set a hearing on an order to show cause why Respondent should not be held in contempt of court.

Legal Standard

            Contempt is any act, in or out of court, “which tends to impede, embarrass or obstruct the court in the discharge of its duties.”  (In re Shortridge (1893) 99 Cal. 526, 532.)  Particular acts constituting contempt are enumerated by statute, including:¿ “(d)isobedience of any lawful ... order, or process of the court”;¿ “(d)isobedience of a subpoena duly served”; “refusing to ... answer as a witness”;¿ “(d)isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of ... trial.” (Code Civ. Proc., § 1209(a); see also Code Civ. Proc. § 1991 [disobedience of subpoena]; and Pen.C. § 166 [misdemeanor].)  In addition, courts have inherent power to punish acts that interfere with the orderly conduct of proceedings.  (Code Civ. Proc., § 128(a)(3); In re Buckley (1973) 10 Cal.3d 237, 247.)  Any person who commits a contemptuous act may be punished for contempt, which includes attorneys (Hallinan v. Superior Court (1925) 74 Cal.App. 420, 426 [persisting in arguing objections after repeated warnings by judge]; Hanson v. Superior Court (2001) 91 Cal.App.4th 75, 84-85 [attorney misconduct during closing argument]) and parties (In re Coleman (1974) 12 Cal.3d 568, 573 [labor union violated temporary restraining order]). 

The contempt at issue is “indirect,” which requires a more elaborate 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, supra, 91 Cal.App.4th at p. 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 the 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 an indirect contempt proceeding (Lyon v. Superior Court (1968) 68 Cal.2d 446, 452) and must contain factual allegations based on firsthand knowledge. 

In indirect contempt proceedings based on disobedience of a prior court order or a valid judgment must meet “strict requirements.”¿ Each of the following must be established: (1) the rendition of a valid court order; (2) actual knowledge of the order; (3) ability to comply; and (4) willful disobedience of the order.  (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784 [repeated failures to turn over documents as ordered].)  Upon receipt of the affidavit, the court usually issues an order to show cause (OSC) why the person should not be held in contempt.  (Code Civ. Proc., § 1212.)  Although not required, the alleged contemnor may respond to the affidavit and OSC by counteraffidavits or declarations.  These affidavits serve as the “answer” to the charging allegations in the original affidavit. (Lyon v. Superior Court, supra, 68 Cal.2d at p. 452.)  Such affidavits are not mandatory, however. The alleged contemnor may assert his or her defenses entirely at the hearing.  (Code Civ. Proc., § 1217.) 

Analysis

            On March 11, 2022, the Court entered an Order granting Petitioners’ Second Petition for Order Directing Compliance with Subpoena for Production of Business Records. (Declaration of Theodore H. Dokko ISO Mot. ¶ 2, Exh. A.) That order stated:

Respondent is ordered to conduct an examination of his redactions [to documents already produced] to ensure that only Cohen’s own charges have been redacted from the credit card statements and other documents. Respondent is ordered to produce documents in response to document requests 3, 8, 9, 10 and 12 but applying the same 6-year scope stated in connection with other document requests. Respondent is to produce the American Express statements identified as missing in Petitioner’s moving papers and any documents reflecting payments made on the credit card statements that have been or will be produced. Respondent is to produce the Court-ordered responsive records, without objections, within 30 days of the date of this Order.

(Id.)

            Respondent requested an extension to provide responses to May 2, 2022, citing a need to obtain clean copies of American Express statements to comply with the Court’s order. (Id. ¶ 4, Exh. 2.) However, when Petitioners queried if the production would include other documents, no response was given. (Id. ¶ 5, Exh. C.) On April 8, 2022, Respondent served his Third Supplemental Response to Petitioners’ Subpoena for Production of Business Records, producing no documents and stating that no responsive documents have ever existed as to requests 3, 8, 9, 10, and 12. (Id. ¶ 6 Exh. D.)

            It is not disputed that the Court’s March 11, 2022 order was valid, or that Respondent had knowledge of that order. However, Respondent contends that Petitioners have not shown that Respondent is able to comply with the Court’s order and has not done so. This contention is incorrect. Petitioners offer evidence by reference to the Second Petition for Order Compelling Compliance, in connection with which, Petitioners produced substantial evidence of transactions not documented in the discovery previously provided and which Petitioners had reason to believe should have been documented. (See Dokko Decl. ¶¶ 16-19.)

            Here, as in connection with the Second Petition for Order Compelling Compliance, Respondent offers no explanation for why these documents, which reasonably should exist, in fact do not. Indeed, Respondent concedes that there are documents which fall precisely within the scope of the requested documents, specifically referencing payments to the Ishimibayev Law Firm in 2017, which were not produced in response. (Cohen Declaration ISO Opp. ¶ 8.) Based on this evidence, the Court finds that Petitioners have stated the elements of a prima facie case for indirect contempt.

Requests for Sanctions

            Petitioners request that the Court impose a fine on Respondent in the amount of $1,000 or imprisonment up to 5 days pursuant to Code of Civil Procedure section 1218, and that the Court order Respondent to pay reasonable attorney’s fees and costs. Section 1218(a) only authorizes such punishment after the Court has taken all evidence in the contempt proceeding and found a party guilty of contempt. As this is a motion on whether the Court should order a hearing on whether Respondent should be found in contempt of Court, the requested relief is not proper at this juncture.

CONCLUSION:

            Accordingly, Petitioners’ Application for an Order to Show Cause Why Respondent Chaim Cohen Should Not Be Found in Contempt of Court is GRANTED.

            The Court sets this matter to be heard on September 30, 2022.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: August 25, 2022                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.