Judge: Virginia Keeny, Case: 22STCV38055, Date: 2025-01-14 Tentative Ruling
Case Number: 22STCV38055 Hearing Date: January 14, 2025 Dept: 45
META PLATFORMS, INC. v. PRESTIGE WORLDWIDE ISM LLC,
et al.
ORDER TO SHOW
CAUSE RE: CONTEMPT
Date of Hearing: January
14, 2025 Trial
Date: None
Department: 45 Case
No.: 22STCV38055
Complaint Filed: December 6,
2022
Moving Party: Plaintiff
Meta Platforms, Inc.
Responding Party: None
Notice: Proper
BACKGROUND
Plaintiff Meta Platforms, Inc. (“Plaintiff”) alleges that Defendants Prestige
Worldwide ISM LLC (“Prestige”) and Luke Allwein (“Allwein”) (collectively, “Defendants”)
have operated a deceptive and misleading advertising scheme on Facebook and
Instagram to promote the sale of misleading merchandise.
On December 6, 2022, Plaintiff filed a complaint against Defendants for
(1) Breach of Contract; (2) Unjust Enrichment; and (3) Intentional Interference
with Contractual Relations.
On January 8, 2024, the Court granted the
parties’ joint stipulation for entry of judgment in favor of Meta against
Defendants, and for a permanent injunction to be issued prohibiting Defendants
from using Meta platforms.
On August 6, 2024, Plaintiff filed an Ex Parte
Application for an Order requiring Allwein to show cause why he should not be
held in contempt of this Court’s Final Judgment and Permanent Injunction issued
on January 8, 2024.
On August 7, 2024, the Court granted Plaintiff's
Ex Parte Application for an Order to Show Cause and set a hearing on the Motion
for Order to Show Cause Re: Contempt for September 24, 2024. Plaintiff’s
counsel was ordered to serve the Order to Show Cause by personal service no
later than August 30, 2024. Any opposition was ordered to be filed and served
on Plaintiff by September 11, 2024, and any reply was to be filed and served on
Defendant by September 17, 2024.
On August 30, 2024, Plaintiff filed notice of
Proof of Service of the Order to Show Cause Re: Contempt.
The Court continued the hearing to November 5,
2024.
On October 22, 2024, the Court granted
Plaintiff’s ex parte application to continue the OSC re: Contempt hearing to
January 14, 2025. On October 22, 2024, Plaintiff filed proof of notice of the
continuance.
On December 26, 2024, the instant action was
reassigned, and Plaintiff was ordered to give notice. Plaintiff filed proof of
notice of reassignment on December 27, 2024.
As of January 9, 2024, no opposition papers
were filed.
[Tentative] Ruling
1. Plaintiff’s Motion for an Order to hold
Defendant Allwein in contempt of this Court’s Final Judgment and Permanent
Injunction is GRANTED. Allwein is ordered to pay a $500 fine to the Court, payable within
15 days upon receipt of notice of ruling.
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.)
Civil Contempt procedures are set forth
in Code of Civ. Proc. §§1209 through 1222. Particular acts constituting
contempt are enumerated by statute, including “[d]isobedience of any lawful
judgment, order, or process of the court.” (Code Civ. Proc., § 1209, subd.
(a)(5).) Under these rules, a proceeding for adjudication of constructive
contempt is customarily initiated by the issuance of an Order to Show Cause. (In
re Rose (1949) 90 Cal. App. 2d 299, 304.)
In addition, courts have inherent power
to punish acts that interfere with the orderly conduct of proceedings. (Code
Civ. Proc., § 128, subd. (a)(3).)
The proceeding
is also initiated by the filing of an affidavit or declaration, stating the
facts constituting the alleged contempt, in order to confer jurisdiction upon
the court to exercise its contempt powers over the accused. (In re Liu (1969)
273 Cal. App. 2d 135, 140-41.) Since a
contempt proceeding is quasi-criminal in nature, the accused person is entitled
to due process, or the procedural safeguards available to a person accused of a
criminal charge, including the right to know the exact nature of the charge
against him/her so that he/she can prepare and present his/her defense. (Id.,
at 141.)
Under Code of Civil Procedure section
1211, when contempt is committed outside the presence of the court (“indirect
contempt”), an affidavit or declaration shall be presented to the court of the
facts constituting the contempt. The elements of contempt via disobedience of a
court order are (1) the rendition of a valid order, (2) the respondent’s
knowledge of the order, (3) the respondent’s ability to comply with the order;
and (4) the respondent’s willful disobedience of the order. (Conn v.
Superior Court (1987) 196 Cal.App.3d 774, 784.)
CCP § 1218(a) provides that the court, upon answer
and evidence taken, shall determine if the party is guilty of contempt, and may
impose a fine not exceeding $1,000, payable to the Court.
ANALYSIS
Procedural Requirements – Service of OSC
Conformed copies of the charging affidavit and
the order to show cause must be served on the citee at least 16 court days
before the hearing. (CCP § 1005(b).) Service on the attorney will not suffice
as the citee must be served personally in the same manner prescribed for
service of the summons. (See CCP §§ 1015 and 1016; In re Koehler (2010
181 Cal.App.4th 1153, 1169; Cedars-Sinai Imaging Med. Group v. Superior
Court (2000) 83 Cal.App.4th 1281, 1286-87 (OSC re Contempt acts as the
summons); In re Morelli (1970) 11 Cal.App.3d 819, 835).
CCP § 1015 exempts contempt papers from the
statutory requirement that papers must generally be served on counsel when the
party is represented, but when alleged contemnor is concealing himself to avoid
service or is out of state for that purpose, the court may order service on the
attorney of record. (Smith v. Smith (1953) 120 Cal.App.2d 474; Kroneberger
v. Superior Court (1961) 196 Cal.App.2d 206).) The moving party must
provide the court with evidentiary facts to invoke this exception. (Albrecht
v. Superior Court (1982) 132 Cal.App.3d 612, 619-20).)
Citee’s appearance at the hearing and
presentation of evidence is a valid substitute for requisite personal service
and effectively waives defective service. (Cedars-Sinai, supra, 83
Cal.App.4th at 1287-88.)
Here, Plaintiff’s
counsel was ordered to serve the Order to Show Cause (“OSC”) by personal
service no later than August 30, 2024. On August 30, 2024, Plaintiff filed
notice of Proof of Service of the OSC. Plaintiff claims therein that personal
service was effected on Allwein by handing the OSC to him at The Brown Hotel in
Guatape, Colombia, as established in the Affidavit of Jose Alberto Perez.
(Notice of Proof of Service of OSC, Exh. 1.) Mr. Perez declares that he
presented himself at The Brown Hotel and entered the hotel’s restaurant with
permission of the hotel manager. (Id.) While in the restaurant, Allwein
appeared and Mr. Perez described him “of slim build, approximately 1.85 meters
tall, with fair skin, blue eyes, weighing 170 pounds, brown hair, a sparse
beard, and was wearing a black t-shirt and green shorts.” (Id.) Mr.
Perez asked him his name and he confirmed that his name was Luke. (Id.)
Mr. Perez handed him the notification document and informed him that he has
been notified. (Id.) After reading the first page of the document,
Allwein stated he needed to speak with his lawyer. (Id.) Mr. Perez left
the documents on the table where Allwein was having breakfast and left the
premises. (Id.) Exhibit 1 also contains a photo of what purports to be
Allwein being handed the OSC.
The Notice of Proof of Service of the OSC also
states that service was effected on Allwein via certified courier authorized to
serve process under Columbian law, for delivery of the OSC to Allwein at The
Brown Hotel in Guatape, Colombia, as established in the Affidavit of
Perez-Rueda. (Notice of POS of OSC, Exh. 2.)
Service was also effected by personal delivery
of the OSC to Allwein’s U.S. residence, at which his father Anthony C. Allwein
also resides, at 423 Millbridge Dr., Lebanon, PA 17402, as established in the
Affidavit of Service of Marc Jones. (Notice of POS of OSC, Exh. 3.)
Finally, service was also effected by emailing
the OSC to Allwein’s confirmed “business” email address (info@phantomstay.com)
and to Allwein’s counsel of record’s email addresses
(eriksyverson@syversonlaw.com and erik@syversonlaw.com), as established in the
Declaration of Donna Boss. (Notice of POS of OSC, Exh. 4.)
Based on the foregoing, service of the OSC
appears to be proper.
Contempt Elements
Plaintiff seeks the following counts of contempt against
Allwein: Count 1 [Accessing Instagram]; Count 2 [Accessing Facebook]; and Count
3 [Use of Accounts or Pages for Commercial Purposes].
Rendition of a Valid Order
This motion arises out of a ruling the Court issued on
January 8, 2024. The Court entered a stipulated permanent injunction that
stated as follows:
Defendants... are hereby permanently ENJOINED
from engaging in, committing, aiding and abetting, or performing directly or
indirectly, by any means whatsoever, any of the following acts:
a. Accessing or attempting to access Meta’s
Platforms (as used herein “Meta’s Platforms” include Facebook, Instagram,
WhatsApp, and Threads) or computer systems;
. . .
c. Creating, operating, accessing, or
managing, directly or indirectly, an account or Page on any of Meta’s Platforms
for any marketing, advertising, or commercial purpose, or otherwise
advertising, marketing, selling, or offering to sell any goods or services on
any of Meta’s Platforms;
. . .
(Zimmermann Decl., ¶ 5, Exh. 2.)
Thus, the Court issued a valid order.
Respondent’s Knowledge of the Order
Plaintiff contends that Allwein had knowledge of the injunction
because he stipulated to the injunction, and was properly served with the
court’s order issuing the injunction on January 11, 2024. (Zimmermann Decl., ¶
8, Exh. 3.) The Court finds this sufficient to establish Allwein’s knowledge of
the order. Thus, Allwein had knowledge of the order.
Respondent’s Ability to Comply with the Order
Plaintiff contends that Allwein, having stipulated to the Injunction
and having received service of it after its entry, was capable of complying
with it by, inter alia, refraining from accessing Meta’s platforms and
refraining from creating, managing, or operating—directly or indirectly—Instagram
and Facebook accounts and Pages for commercial purposes. (Zimmermann Decl., ¶
9.) The Court finds this sufficient to establish that Allwein had the ability
to comply with the order by simply refraining from accessing Meta’s platforms.
Thus, Allwein had the ability to comply with the order.
Respondent’s Willful Disobedience of the Order
Plaintiff argues that Allwein willfully violated this Court’s order by
accessing and using Facebook and Instagram to advertise, market, sell, and
offer for sale the services of his “Phantom Stays” business after the
injunction was issued. (Motion, 1:5-7.) Plaintiff
provides extensive evidence in support of this argument.
According to its website located at PhantomStay.com (the “Phantom
Stays Website”), last visited on or about August 5, 2024, Phantom Stays is a
business that offers tips for discounted luxury travel. (Andre Decl., ¶ 2, Exh.
1.)
As of June 19, 2024, the “Director” of Phantom Stays was identified on
the Phantom Stays Website as “Mr. Phantom.” The website included multiple
pictures of “Mr. Phantom” with his face blurred. (Andre Decl., ¶ 4, Exh. 1.) As
of June 19, 2024, the CFO of Phantom Stays was identified on the Phantom Stays
Website as “Farah.” (Andre Decl., ¶ 5, Exh. 1.) “Farah” is Farah Charania who,
according to the former website of Defendant Prestige Worldwide ISM LLC
(formerly available at prestigeholdings.co) and Farah Charania’s LinkedIn
profile, is or was employed by Defendant Prestige as the Accounting Manager.
True and accurate copies of the Prestige website as it appeared on or about
December 6, 2021, and Farah Charania’s LinkedIn profile, (Andre Decl., ¶ 6,
Exh. 2.)
As of July 2, 2024, the homepage of the Phantom Stays Website
contained links to the Instagram account @phantomstays, as well as YouTube, and
X (formerly Twitter) accounts. (Andre Decl., ¶ 7.)
Instagram account XXXXXXXXXXXXXX750 (the “Phantom Stays Instagram
Account”) was created on or about November 7, 2023 under the username
“ifonlyyouknew7777.” (Andre Decl., ¶ 9, Exh. 3.) On or about November 15, 2023,
the username was changed to “phantomstays.” (Id.) On or about January
22, 2024, Instagram user @frenchalex07 publicly posted a photograph of Allwein
and others, tagging Allwein as @phantomstays. (Andre Decl., ¶ 11, Figures 1-3.)
The description of the post included a reference to “Luke” (Allwein’s first
name), and the Phantom Stays Instagram Account responded to the post with a
comment. (Andre Decl., ¶ 11, Figures 1-3.)
On or about November 24, 2023, the Phantom Stays Instagram Account
publicly posted a photograph of Allwein in a pool with his face blurred. (Andre
Decl., ¶ 12, Exh. 4.) That same picture of Allwein, without his face blurred,
was posted on the LukeAll.com website, which purported to be Allwein’s personal
website. (Andre Decl., ¶ 12, Exh. 5.) The Phantom Stays Instagram Account also
posted a Reel on or about February 7, 2024 featuring Allwein (with his head
blurred) standing in front of a gray Mercedes G-Class SUV with a large chrome
brush guard. (Andre Decl., ¶ 13, Figure 6.) The same vehicle, with the same
distinctive brush guard, is pictured in a Yahoo! Finance article about Allwein.
(Andre Decl., ¶ 13, Exhs. 6-7.)
Between approximately January 11, 2024 and July 2, 2024, the Phantom
Stays Instagram Account posted on Instagram at least 12 times. (Andre Decl., ¶
25, Exh. 14.)
The homepage of the Phantom Stays Website contains a link to
YouTube.com/@phantomstays, a YouTube channel called “Phantom Stays” (the
“Phantom Stays YouTube Channel”). (Andre Decl., ¶ 16.) The url associated with
the “Luke All” YouTube Channel now directs to the Phantom Stays YouTube
Channel. (Andre Decl., ¶ 18, Exh. 8.) Additionally, the “Luke All” and “Phantom
Stays” YouTube Channels have the same Channel ID numbers and were created on
the same date.
The homepage of the Phantom Stays Website contains a link to the X
account @PhantomStays (the “Phantom Stays X Account”). (Andre Decl., ¶ 22.)
According to the Phantom Stays X Account’s homepage, the account was created in
2012. (Andre Decl., ¶ 23, Exh. 13.) Per the Phantom Stays X Account, there is
an exchange from 2015 where a commenter responded to the Phantom Stays X
Account by addressing “@LukeAllwein,” not “@PhantomStays” because
“@LukeAllwein” was not hyperlinked in the comment, it did not update to “@PhantomStays”
when the X username changed from @LukeAllwein to @PhantomStays. (Andre Decl., ¶
25.)
Counsel Meghan Andre declares that based on her review of data
maintained by Meta in the ordinary course of business, Facebook user account
XXXXXXXXXXXX733 with the username “Joan Monteith” (the “Monteith Account”)
appears to have been compromised by an unknown person sometime before September
5, 2022. (Andre Decl., ¶ 29.) On or about September 5, 2022, the Monteith
Account was used to create Business Manager Account XXXXXXXXXXXXX406 with
username “Jo’s Market.” (Andre Decl., ¶ 29.) On or about September 22, 2022, Ad
Account XXXXXXXXXXXXXX305 was added to Business Manager Account
XXXXXXXXXXXXX406. (Andre Decl., ¶ 31.) On information and belief, Allwein
gained control of the Monteith Account, Business Manager Account
XXXXXXXXXXXXX406, and Ad Account XXXXXXXXXXXXXX305 on or before January 1, 2024
and operated those accounts at least from approximately January 1, 2024 to July
2, 2024 to advertise and promote his Phantom Stays business. (Andre Decl., ¶
32.)
On or about January 1, 2024, the username of Business Manager Account
XXXXXXXXXXXXX406 was changed from “Jo’s Market” to “Phantom Stays’ Market.” (Andre
Decl., ¶ 33.) On or about January 1, 2024, the Monteith Account was used to
create Facebook Page XXXXXXXXXXXX901 titled “Phantom Stays.” Facebook Page
XXXXXXXXXXXX901 is linked to the Phantom Stays Instagram Account. (Andre Decl.,
¶ 34.) On or about January 1, 2024, the username of Ad Account
XXXXXXXXXXXXXX305 was changed from “ERC Credits 1” to “Phantom Stayz.” (Andre
Decl., ¶ 35.) On or about January 6, 2024, the email address associated with
the Monteith Account was changed to IfOnlyYouKnewHacked@gmail.com. (Andre
Decl., ¶ 36.) Between approximately January 11, 2024 and July 2, 2024, Ad
Account XXXXXXXXXXXXXX305 was used to create at least 23 advertisements
promoting Phantom Stays. At least 17 of those advertisements ran on Facebook or
Instagram and were viewed by users. (Andre Decl., ¶ 37.) On or about July 2,
2024, Meta disabled the Monteith Account, Business Manager Account
XXXXXXXXXXXXX406, Ad Account XXXXXXXXXXXXXX305, and Facebook Page
XXXXXXXXXXXX901. (Andre Decl., ¶ 38.)
Based on the foregoing, the Court finds that the PhantomStays
Instagram Account is owned and was operated by Allwein after the permanent
injunction was issued. The Court also finds that the PhantomStays Instagram
Account was used to market and advertise a service, Phantom Stays, in violation
of the permanent injunction. The Court further finds that Allwein utilized
Facebook to market and advertise Phantom Stays after the permanent injunction
was issued, in violation of the permanent injunction. Thus, Plaintiff has
established that Allwein willfully disobeyed this Court’s order.
Plaintiff has established a prima facie case of contempt by properly
alleging facts showing Allwein’s willful disobedience of the underlying order.
(Coursey v. Superior Court (1987) 194 Cal.App.3d 147, 156-57). Allwein
has not filed any opposition to rebut these findings.
Therefore, Plaintiff has established all elements
required for contempt via disobedience of a court order. The Court finds
Allwein in Contempt of Court on Count 1, Count 2, and Count 3.
CONCLUSION
Plaintiff’s
Motion for an Order to hold Defendant Allwein in contempt of this Court’s Final
Judgment and Permanent Injunction is GRANTED.
Allwein is ordered to pay a $1500 fine to the Court, payable
within 15 days upon receipt of notice of ruling.
Moving party to give notice.