SOCAL LIEN SOLUTIONS, LLC VS CHARLENE MONCRIEF, ET AL.

Tentative Rulings

Case Number: 18STLC13007    Hearing Date: March 8, 2021    Dept: 26

SoCal Lien Solutions, LLC v. Moncrief, et al.

MOTION FOR SANCTIONS

(CCP §§ 1209(a)(5), 1212, 177, et seq.; LASC Rule 3.11)

TENTATIVE RULING:

Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Order to Show Cause Regarding Contempt is DENIED.

ANALYSIS:

On October 15, 2018, Plaintiff Socal Lien Solutions, LLC (“Plaintiff”) filed this action for goods and services rendered against Defendants Charlene Moncrief and Zachary Moncrief (“Defendants”). Plaintiff is an assignee of Gorilla Corporation dba Bullet Restoration (“Gorilla”), who allegedly provided labor, materials, and services to Defendants’ real property. (Compl. ¶¶ 7, 10.) On December 13, 2018, the Court granted Defendants’ motion to compel arbitration and awarded Defendants attorney’s fees of $4,125.00. (Minute Order, 12/13/18.) An order reflecting the December 13, 2018 was signed by the Court on February 15, 2019.

On May 28, 2019, Plaintiff dismissed the action without prejudice. On July 24, 2019, Defendants filed an Application and Order for Appearance and Examination whereby Plaintiff was ordered to appear on September 10, 2019. Following Plaintiff’s failure to appear at the Examination, the Court granted Defendants’ motion for sanctions on September 23, 2020. The Court ordered Plaintiff to pay sanctions of $4,125.00 within 20 days of the order.

Defendants filed the instant Motion to Set Order to Show Cause Re: Contempt on November 30, 2020. Plaintiff filed an opposition on February 23, 2021 and Defendants replied on March 1, 2021.

Discussion

As an initial matter, Defendants’ evidentiary objections to the opposition papers are overruled. The opposition attaches no evidence and relies solely on a memorandum of points and authorities. No evidentiary objection can be made to the arguments in the opposition.

The Court also overrules Defendants’ objection to electronic service of the opposition. Electronic service was proper under Cal. Rules of Court Rule 2.251, subdivision (b). Finally, Plaintiff’s objection to the Motion on the grounds that a contempt citation must be personally served is without merit. A motion seeking to set an order to show cause regarding contempt is not the same as the contempt citation; it is the order to show cause itself that must be personally served. (See Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169.)

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.) An “indirect contempt” occurs out of court but is equally subject to the summary punishment set forth in Code of Civil Procedure 1211: “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.” (Arthur v. Sup.Ct. (1965) 62 Cal.2d 404, 407-408.) Thereafter, an order to show cause must be issued and the court must hold a hearing on the facts. (Id. at 408.) Since the acts involved in the alleged contempt in this action did not occur in the Court’s presence, the affidavit must cover each element of the commission of the contempt. (Code Civ Proc., § 1211.5.) If necessary, the court may order or permit amendment of the affidavits at any stage of the proceedings. (Code Civ. Proc., § 1211.5, subd. (b).)

The elements of contempt are: (1) facts establishing court’s jurisdiction (e.g., personal service of subpoena, validity of court order allegedly violated, etc.); (2) the party’s knowledge of the order disobeyed; (3) the party’s ability to comply; and (4) the party’s willful disobedience of the order. (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169; In re Jones (1975) 47 Cal.App.3d 879, 881.)

Facts establishing the Court’s jurisdiction are set out in the supporting declaration of defense counsel, Jack M. LePedis. Defense counsel attests to the issuance of the February 15, 2019 and September 23, 2020 orders by the Court. (Motion, LePedis Decl., ¶¶4, 8 and Exhs. B, D.) The affidavit further demonstrates that Plaintiff had notice of both orders. Notice of the September 23, 2020 order was mailed to Plaintiff’s counsel on the same date. (Id. at Exh. D.) While there is no evidence that notice of the February 15, 2019 was immediately served, a copy of the order was emailed to Plaintiff’s counsel on October 26, 2020. (Id. at Exh. E.) In responding to the email from defense counsel, Plaintiff’s counsel did not dispute that attorney fees and sanctions were awarded on both dates. (Ibid.)

Regarding Plaintiff’s ability to comply with the orders, however, the affidavit does not provide sufficient evidence. At most, Plaintiff’s counsel responded on November 2, 2020 that it was Plaintiff’s intention to comply with the Court’s orders but that it was waiting for its assignor, Gorilla Corporation, to send payment for the attorney fees and sanctions. (Ibid.) Without evidence that Plaintiff has the ability to pay the attorney fees and sanctions as ordered, Defendant has not shown Plaintiff’s disobedience of the orders was willful. On this basis, the affidavit in support of an order to show cause regarding contempt fails to satisfy all four elements.

Conclusion

Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Order to Show Cause Regarding Contempt is DENIED.

Plaintiff to give notice.

Case Number: 18STLC13007    Hearing Date: September 23, 2020    Dept: 26

SoCal Lien Solutions, LLC v. Moncrief, et al

MOTION FOR SANCTIONS

(CCP §§ 708.110, 708.150, 708.170, 680.230, and 680.270)

TENTATIVE RULING:

Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Sanctions and Attorney’s Fees is GRANTED IN THE AMOUNT OF $4,125.00.

ANALYSIS:

On October 15, 2018, Plaintiff Socal Lien Solutions, LLC (“Plaintiff”) filed this action for goods and services rendered against Defendants Charlene Moncrief and Zachary Moncrief (“Defendants”). Plaintiff is an assignee to an assignor who allegedly provided labor, materials, and services to Defendants’ real property. (Compl. ¶¶ 7, 10.) On December 13, 2018, the Court granted Defendants’ motion to compel arbitration and awarded Defendants attorney’s fees of $2,000.00. (Minute Order, 12/13/18.) On May 28, 2019, Plaintiff dismissed the action without prejudice.

Defendants filed an Application and Order for Appearance and Examination whereby Plaintiff was ordered to appear on September 10, 2019. Following Plaintiff’s failure to appear at the Examination, Defendants filed the instant Motion for Sanctions on February 18, 2020. Plaintiff filed an opposition on February 27, 2020 and Defendants replied on March 4, 2020

Discussion

Initially, the Court sustains Defendants’ evidentiary objection to the exhibit attached to Plaintiff’s opposition evidence. The exhibit is not authenticated by any supporting declaration. (See Cal. Evid. Code § 1400.) The Court declines to rule on Plaintiff’s objections to statements in the opposition brief, however. It is axiomatic that evidentiary objections must be made to evidence, not argument.

Defendants move for sanctions against Plaintiff for failure to appear at the September 10, 2019 judgment debtor examination under Code of Civil Procedure section 708.170, which provides:

(a) If an order requiring a person to appear for an examination was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server, and the person fails to appear:

. . .

(2) If the person’s failure to appear is without good cause, the judgment creditor shall be awarded reasonable attorney's fees incurred in the examination proceeding. Attorney's fees awarded against the judgment debtor shall be added to and become part of the principal amount of the judgment.

(Code Civ. Proc., § 708.170, subd. (a)(2).) It is undisputed that Plaintiff failed to appear for the Examination on September 10, 2019. No good cause for Plaintiff’s non-appearance exists in the record. The Application and Order for Appearance and Examination was served on Plaintiff by registered process server specially appointed by the Court in the order. (Motion, LaPedis Decl., ¶6 and Exh. C.)

In opposition, Plaintiff argues that it failed to appear for the Examination because it was a suspended corporation from on or about July 18, 2019 until December 3, 2019 and therefore precluded from participating in litigation. (Opp., p. 1:24-26.) For the reasons discussed above, no competent evidence supports Plaintiff’s contention that it was a suspended corporation on the date of the Examination.

As required by Code of Civil Procedure section 708.110, subdivision (e), the Order for Examination warns the judgment debtor that it may be subject to sanctions for failure to appear. (Motion, LePedis Decl., Exh. C.) Defendants are entitled to an award of sanctions in the amount of $1,500.00 based on defense counsel’s reasonable hourly rate of $375.00 for the four hours spent preparing the Application for Order for Appearance and Examination, and preparing for and appearing at the Examination. (Id. at ¶¶12-13.)

Defendants also request an award for attorney’s fees for bringing the instant Motion. “Attorney's fees incurred in enforcing a judgment are included as costs collectible … if the underlying judgment includes an award of attorney's fees to the judgment creditor . . . .” (Code Civ. Proc., § 685.040.) The order granting Defendants’ petition to compel arbitration awarded attorney’s fees, thereby entitling them to recovery of attorney’s fees to enforce the judgment. (Order Granting Petition to Compel Binding Arbitration, 2/15/19, ¶5.) Based on a lodestar calculation, attorney’s fees are awarded in the amount of $2,625.00 based on seven hours of defense counsel’s time. (Motion, LePedis Decl., ¶6.)

Finally, as to Defendants’ request that the Court order Plaintiff to pay the judgment and the above awarded fees within 14 days, no authority is cited for such an order, which the Court declines to make.

Conclusion

Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Sanctions and Attorney’s Fees is GRANTED IN THE AMOUNT OF $4,125.00.

Moving party to give notice.

Case Number: 18STLC13007    Hearing Date: March 11, 2020    Dept: 26

MOTION FOR SANCTIONS

(CCP § 708.170)

TENTATIVE RULING:   

On the Court’s own motion, Defendants Charlene Moncrief and Zachary Moncrief’s Motion for Sanctions is CONTINUED TO MAY 13, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. NO FURTHER BRIEFING PERMITTED.

Court clerk to give notice.