Judge: Theresa M. Traber, Case: 20STCV41680, Date: 2025-02-28 Tentative Ruling

Case Number: 20STCV41680    Hearing Date: February 28, 2025    Dept: 47

The Court has reviewed Plaintiff’s ex parte application for injunctive relief. Plaintiff’s application claims that Defendant/Judgment Debtor Kenneth Corkum’s spouse, Kathleen O’Neil, is a major participant in the fraud scheme on which the Complaint in this action was premised, and has conspired to sequester Defendant Corkum’s assets so as to place them beyond the reach of the judgment and to suppress evidence of other involved parties. Plaintiff requests a preliminary injunction, an order finding Defendant Corkum in contempt for refusing to appear for a deposition and ordering his appearance, and leave to file a First Amended Complaint naming Ms. O’Neil as a new Defendant.

At the outset, Plaintiff has not furnished the Court with any of the evidence Plaintiff claims to possess which would support his request for injunctive relief or his request for a contempt order. Even if he had done so, Plaintiff’s contention that he is likely to succeed on the merits of any claims against Ms. O’Neil is premised on the theory that the Default Judgment entered against Defendant Corkum would have preclusive effect on the issues or claims as pertaining to Ms. O’Neil. Plaintiff’s reasoning is flawed. Any amendment to the Complaint to name Ms. O’Neil as a party would necessarily void the default and default judgment against Defendant Corkum, effectively resetting the case to the status quo ante, reopening the window for Defendant Corkum as well as Ms. O’Neil to respond, and once again requiring Plaintiff to prove the substance of his claims. Although Plaintiff is at liberty to amend the Complaint via a procedurally proper motion for leave to amend should he choose to pursue this approach, the proposed First Amended Complaint relies on the same improper claim & issue preclusion theories and would therefore require a full redrafting.

As for Plaintiff’s request for a contempt hearing, Plaintiff offers no evidence demonstrating (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.) Plaintiff is therefore not entitled to the extraordinary remedy of a contempt hearing.

Accordingly, for the foregoing reasons, Plaintiff’s ex parte application is DENIED.

The Temporary Restraining Order previously issued by this Court is dissolved.