Judge: Theresa M. Traber, Case: 20STCP01943, Date: 2023-02-15 Tentative Ruling

Case Number: 20STCP01943    Hearing Date: February 15, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 15, 2023                 TRIAL DATE: NOT SET

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

CASE NO.:                 20STCP01943           

MOTION TO DISMISS OSC RE: CONTEMPT

MOVING PARTY:               Non-Party Respondent Chaim Cohen

RESPONDING PARTY(S): Petitioners Ofek Rachel, Ltd. and M.M.N. Yad David

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.
• 10/13/22: Application for OSC Re: Contempt Granted.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Petitioners 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.

Non-Party Respondent Chaim Cohen moves to dismiss the OSC Re: Contempt

TENTATIVE RULING:

Non-Party Respondent’s Motion to Dismiss is DENIED.

DISCUSSION:

            Non-Party Respondent Chaim Cohen moves to dismiss the OSC Re: Contempt.

Petitioners’ Request for Judicial Notice

            Petitioners request that the Court take judicial notice of (1) the Court’s March 11, 2022 Minute Order; (2) Petitioners’ Application for OSC Re: Contempt and Declaration of Theodore H. Dokko in this action; (3) Petitioners’ Supplemental Brief to Application for OSC Re Contempt; (4) the Court’s October 13, 2022 Minute Order; (5) Cohen’s Third Supplemental Response to Subpoena for Production of Business Records; (6) Cohen’s Opposition and supporting documents to the Application for OSC Re: Contempt; (7) the Subpoena for Production of Business Records in Action Pending Outside California; and (8) Redacted pages of American Express Statements produced by Cohen showing payments to Ishimbayev Law Firm, PC.

            As to requests Nos. 1-4 and No. 6, Petitioners’ Requests are GRANTED pursuant to Evidence Code section 452(d) (court records). However, as to Requests nos. 5, 7, and 8, Petitioners Requests are DENIED. These documents are not specifically identified in the evidence code as judicially noticeable, nor are they documents which are “not reasonably subject to dispute and capable of immediate and accurate verification by resort to sources of reasonably indisputable accuracy.” These documents are properly submitted merely as evidentiary support for Petitioners’ opposition to the motion, authenticated by the Declaration of Theodore H. Dokko attached to the opposition. In that context, the Court will accept Exhibits 5, 7, and 8 into Petitioners’ body of evidence for the purpose of this motion.

Legal Standard

            The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience.” (Conn v. Sup.Ct. (1987) 196 Cal.App.3d 774, 784.) In a contempt proceeding, the accused is entitled to be clearly and fairly apprised of the particular basis for the adjudication of the contempt. (Hough v. Superior Court in and For Los Angeles County (1960) 179 Cal.App.2d 342.) In a criminal contempt proceeding, accused persons have a privilege against self-incrimination and cannot be compelled to testify against themselves. (Crittenden v. Superior Court (1964) 225 Cal.App.2d 101, 105.) At the hearing, the movant bears the burden of proof beyond a reasonable doubt, which it must meet unaided by the proposed contemnee. (Coursey v. Superior Court (1987) 194 Cal.App.3d 147, 153.)

Charge 1: Failure to Produce Responsive 2016 American Express Statements Reflecting Payments to Judgment Debtors

            Cohen moves to dismiss the first charge on the grounds that there were no payments “to” the Judgment Debtors.

            Petitioners rely on Cohen’s fourth production of documents, specifically Chase Bank statements dating back to January 20, 2016, which evidence 27 payments to American Express in 2016. Petitioners state that Cohen did not produce the corresponding 2016 American Express statements. Petitioners also identify Ted Dokko as their witness in chief, who will testify as to the statements that were received, their discrepancies, and the failure of Cohen to produce responsive statements.

            Petitioners also contend that the initial Contempt Order contains a technical error in that the first charge refers to payments “to” the Judgment Debtors, when the phrase used in the underlying subpoena were payments “on behalf of” the Judgment Debtors. (See RJN Exh. 7.)

Petitioners state that they can propose, at the hearing, that the Court amend the OSC Order to accurately reflect the subpoena. Pursuant to Code of Civil Procedure §1211.5, the Court may “order or permit amendment of [the] affidavit or statement for any defect or insufficiency at any stage of the proceedings, and the trial of the person accused of contempt shall continue as if the affidavit or statement had been originally filed as amended, unless substantial rights of such person accused would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.”  (Civ. Proc. Code § 1211.5.)  The Court will grant the request to modify the OSC to reflect the language of the underlying subpoena which in fact sought documents regarding payments “on behalf of” the Judgment Debtors.  To effectuate this amendment Petitioners must submit an amended OSC re: Contempt for the Court’s signature no later than February 17, 2023.  In the meantime, the Court finds that Petitioners have presented sufficient evidence as to the first charge to withstand Cohen’s motion to dismiss.

Charge 2: Failure to Produce Responsive Credit Card Statements Reflecting Monthly Charges for Utilities, Cell Phone Bills, Condominium Fees, and Tuition Fees for Judgment Debtors Between January 2017 and December 2021

            Cohen moves to dismiss the second charge on the grounds that Petitioners have not established who can lay the foundation for this charge.

            Cohen first contends that the OSC Re: Contempt should be dismissed because petitioners did not comply with a “Demand for Identification of Witnesses and Evidence re Order to Show Cause Re Contempt” by the deadline given of Friday, January 20, 2023. Cohen relies on Los Angeles Superior Court Rule 3.11, which states, in relevant part, that “[t]he moving party must appear for the trial with witnesses prepared to testify unless the accused person stipulates in writing that the moving party’s declarations will constitute the case-in-chief against him or her.” (LASC Rule 3.11.) However, the failure to respond to this demand—which Cohen made without reference to any authority entitling him to demand Petitioners’ evidence in that manner—plainly does not constitute failure to appear for trial with witnesses prepared to testify. Nor does that failure, by itself, establish that Petitioners have no evidence of their claims.

            In any event, Petitioners have provided, in their opposition, a list of the evidence and the witnesses on which they intend to rely. Petitioners contend that, over a 5-year period, there should have been 60 charges between January 2017 and December 2021 reflecting monthly payments for each of the following expenses: (1) utilities; (2) cell phone bills; (3) condominium fees; and (4) private school tuition fees. However, only 14 charges for utilities, 24 charges for phone bills, 19 payments for private school tuition, and 38 charges for condominium fees were evident in the records produced. In pursuit of evidence supporting these missing charges, Petitioners state that they have subpoenaed business records from Con Edison, Verizon Wireless, the private school for the Sukis’ children, and the Cielo Condominium. Petitioners further state that these records are being subpoenaed from New York creditors by way of New York subpoenas. Petitioners state that they will introduce and support these records through the declarations of the custodians of records for Con Edison, Verizon Wireless, the private school, and the Cielo Condominium. Petitioners state that these declarations will authenticate the records, lay the foundation for their admission into evidence, and eliminate any potential hearsay issues.

            Petitioners have thus demonstrated the evidence that they will provide at trial and have established how the foundation might be laid.

Charge 3: Failure to Produce All Responsive Credit Card Statements Reflecting Charges by the Ishimbayev Law Firm for the Representation of Suki Ben Zion

            Cohen moves to dismiss the third charge on the basis that the missing charges have since been produced, and this charge is therefore moot. Cohen cites no authority standing for the proposition that compliance after criminal contempt proceedings have commenced is sufficient to defeat a criminal contempt charge. Indeed, it is definitional that criminal contempt proceedings are those that cannot be escaped by subsequent compliance with court orders. (See, e.g., In re Ivey (2000) 85 Cal.App.4th 793, 803.) Cohen’s subsequent compliance is irrelevant. The record before the Court therefore does not warrant dismissal of this charge.

Charge 4: Failure to Produce All Responsive Credit Card and Bank Statements Accounting for One Payment to American Express in 2018, Five (5) Payments to American Express in February of 2019, and Seven (7) Payments to American Express in march of 2020

            Cohen moves to dismiss the fourth charge on the basis that Petitioners cannot provide a trial witness to establish that all payments were not provided.

            Petitioners challenge Cohen’s characterization of the issue. As characterized in the Court’s October 2022 Ruling, and in Petitioners’ opposition, Cohen’s fourth document production contained Chase Bank statements that did not account for all payments to the American Express account identified in August 2018, which Petitioners contend indicates a second source for payments to the American Express cards. Petitioners also contend that Cohen’s Chase Bank statements reflect payments from other sources that are not indicated in the American Express statements produced, which indicates that there are other American Express accounts as well. Petitioners have provided the statements at issue as Exhibit 4. (RJN Exh. 4.) Petitioners offer Ted Dokko as their witness in chief on this issue, stating that he can testify to these issues based on his personal knowledge of the documents received.

CONCLUSION:

Accordingly, Non-Party Respondent’s Motion to Dismiss is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  February 15, 2023                              ___________________________________

                                                                                    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.