On 03/02/2012 IVAN RENE MOORE filed a Contract - Other Contract lawsuit against KIMBERLY MARTIN-BRAGG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ROLF M. TREU, MICHELLE R. ROSENBLATT, MICHAEL JOHNSON, KEVIN C. BRAZILE, BARBARA A. MEIERS, FREDERICK C. SHALLER, LUIS A. LAVIN, SAMANTHA P. JESSNER, JAMES C. CHALFANT and DANIEL J. BUCKLEY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ROLF M. TREU
MICHELLE R. ROSENBLATT
KEVIN C. BRAZILE
BARBARA A. MEIERS
FREDERICK C. SHALLER
LUIS A. LAVIN
SAMANTHA P. JESSNER
JAMES C. CHALFANT
DANIEL J. BUCKLEY
MOORE IVAN RENE
DOES 1 THROUGH 10
THOMASINA M. REED LAW OFFICES OF
3/2/2012: COMPLAINT FOR: 1. TRESPASS TO CHATTELS; ETC
4/5/2012: PROOF OF SERVICE BY MAIL
7/18/2012: NOTICE OF CONTINUANCE OF TRIAL SETTING CONFERENCE AND MOTION TO COMPEL AND OF DEMURRER BEING OFF CALENDAR
7/25/2012: Minute Order
9/7/2012: MOTION TO COMPEL PHYSICAL INSPECTION OF PROPERTY AT 6160 SHENANDOAH , SET TWO; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF RENE MOORE; DECLARATION OF KAREN FISHER
6/27/2013: Minute Order
7/3/2013: PLAINTIFF?S MOTION IN L1MINE REGARDING EXCLUSION OF ALL DEFENDANT?S CLAIMS BARRED BY EHEIR RESPECTIVE STATUTES OF LIMITATIONS
8/15/2013: OBJECTIONS TO PROPOSED JUDGMENT ON SPECIAL VERDICTS
9/18/2013: Minute Order
2/21/2014: Minute Order
6/6/2014: EX-PARTE APPLICATION
6/16/2014: CASE MANAGEMENT STATEMENT
7/22/2014: CHECK ALERT
4/27/2015: Minute Order
7/11/2016: STIPULATION, RECEIPT AND ORDER RE RELEASE OF CIVIL EXHIBITS
8/26/2016: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION OF WELLS FARGO BANK, N.A. TO EX PARTE APPLICATION OF IVAN RENE MOORE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 708.440
8/26/2016: Minute Order
6/21/2017: Minute Order
Order (Order to Show Cause Re Dismissal of Remaining Causes of Action as a Terminating Sanction; ) Filed by CourtRead MoreRead Less
Cost Bill After Judgment (TOTAL $0.00 CREDIT $0.00 INTEREST $504957.06 ) Filed by Attorney for Pltf/PetnrRead MoreRead Less
Writ issued (ISSUED-LA COUNTY-CUSTOMER PICKED UP-AB; ) Filed by Attorney for CreditorRead MoreRead Less
Notice of Continuance Filed by ClerkRead MoreRead Less
Objection Document (TO THE COURTS RULING OF SEPTEMBER 2, 2015: NOTICE OF RULING ) Filed by Petitioner & Petitioner in Pro PerRead MoreRead Less
Miscellaneous-Other (RULING: MOTIONS ARE SUMMARILY DENIED ) Filed by CourtRead MoreRead Less
Declaration (OF THOMASINA M. REED, ESQ. AND DUA NE R. FOLKE, ESQ. RE: PLAINTIFF'S FAILURE TO SERVE MOTIONS AND REQUE ST TO STRIKE SAME ) Filed by Attorney for Defendant/RespondentRead MoreRead Less
Notice (TO COURT OF NON OPPOSITION BY DEFE NDANTS TO NOTICE OF MOTION FOR ENF ORCEMENT OF FINAL JUDGMENT AND FIN AL ) Filed by Petitioner & Petitioner in Pro PerRead MoreRead Less
Notice (TO COURT OF NON OPPOSITION BY DEFE NDANTS TO MOTION FOR ORDER TO INSP ECT, ITEMIZES PLAINTIFF'S REAL AND PERSONAL PROPERTY ) Filed by Petitioner & Petitioner in Pro PerRead MoreRead Less
Writ-Other Issued (reject-no final judgment, per minutes order 1.05.15, motion to enforcement of final judgment is denied, case consolited with BC464111, hearing is on 10.05.15 mail) Filed by ClerkRead MoreRead Less
Order (TEMPORATY RESTRAINING ORDER AS TO KIMBERLY MARTIN-BRAGG ) Filed by PlaintiffRead MoreRead Less
Supplemental Declaration (FOR WRIT OF POSSESSION ) Filed by Plaintiff & Plaintiff In Pro PerRead MoreRead Less
Proof of Service Filed by Plaintiff & Plaintiff In Pro PerRead MoreRead Less
Ex-Parte Application (EX PARTE APPLICATION FOR AN ORDER PRECLUDING DEFENDANT FROM.... (TEMPORARY RESTRANING ORDER) ) Filed by PlaintiffRead MoreRead Less
Proof-Service/Summons Filed by Plaintiff & Plaintiff In Pro PerRead MoreRead Less
Proof of Service Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
Ex-Parte Application (EX PARTE APPLICATION FOR WOP AS TO IIMBERLY MARTIN-BRAGG ) Filed by Plaintiff/PetitionerRead MoreRead Less
Ex-Parte Application (EX PARTE APPLICATION FOR WOP ) Filed by Plaintiff/PetitionerRead MoreRead Less
Ex-Parte Application (for an ord appting recvr to take possession re access and removal ) Filed by Plaintiff & Plaintiff in Pro PerRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC480013 Hearing Date: December 27, 2019 Dept: 56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
IVAN RENE MOORE,
KIMBERLY MARTIN-BRAGG, et al.,
CASE NO.: BC480013
[TENTATIVE] ORDER RE: MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT
Date: December 27, 2019
Time: 8:30 a.m.
MOVING PARTY: Plaintiff Ivan Rene Moore
RESPONDING PARTY: Defendant Kimberly Martin-Bragg aka Kimberly Barbour
The Court has considered the moving, opposition, and reply papers.
Plaintiff filed a complaint that arises from an alleged wrongful transfer of property. Plaintiff’s complaint alleges causes of action against Defendants for: (1) trespass to chattels; (2) conversion; and (3) negligent interference with personal properties.
On November 8, 2013, judgment was entered in favor of Plaintiff and against Defendant on the causes of action for trespass to chattel and conversion and in favor of Defendant on the Civil Code section 1965 cause of action. The Court: (1) awarded judgment to Plaintiff and against Defendant in the sum of $3,150,000.00 with interest; and (2) followed the recommendation of the jury that Plaintiff be entitled to the return of his personal property, which the Court found to include all personal property that was proved at trial to be at 6150 Shenandoah at the time Plaintiff was evicted. Therefore, the Court granted Plaintiff’s request for return of property and ordered that: (1) Defendant return Plaintiff’s clothing, shoes, kitchen equipment, personal property, piano, SSLK console, masters, ’71 Camaro, and personal legal documents consistent with the evidence presented at trial. Thus, the Court indicated: (1) that Plaintiff was entitled to the return of all said property in Defendant’s possession or control including that which was in storage; and (2) that Defendant, her agents and anyone acting on her behalf, was ordered to not sell, give away, damage or keep from Plaintiff any of the property that had been ordered returned and that Defendant was ordered to have the property returned to Plaintiff. The judgment entered was an interlocutory judgment due to the bifurcation of pending causes of action unrelated to Plaintiff’s personal property and indicated that should Defendant return all or some of the specified property items, the trial court would reduce the awarded damages by up to $2,500,000.00.
Plaintiff filed a motion for an order to show cause for contempt of Court and a hearing finding Defendant and her attorney of record in contempt of Court. Plaintiff also moves for sanctions with respect to each offending piece of property. Plaintiff’s motion is made on the grounds that: (1) Defendant and her attorney of record continuously failed to comply with Judge Rosenblatt’s order dated November 8, 2013 and lied to the Court knowingly and are in contempt of a lawful Court order and in violation of such; (2) Defendant and her attorneys made statements and submitted documents under penalty of perjury to other courts of law and U.S. Bankruptcy Court which directly contradict the statements and pleadings filed by Defendant and her attorney have filed in various courts in furtherance of their scheme of fraud and contempt of a lawful court order.
Defendant opposes Plaintiff’s motion on the grounds that: (1) Plaintiff’s request for an order to show cause re: contempt fails to provide adequate notice to Defendant’s attorney of record and should be discharged on that basis as to such attorney; and (2) changed circumstances render it impossible for Defendant to comply with the order.
Initially, the Court finds Plaintiff’s citation to Moss unpersuasive to support Plaintiff’s argument that contempt may be punished under California Code of Civil Procedure, Section 1218 because Moss addressed the issue of contempt in the context of a parent violation a judicial child support order. (Moss v. Superior Court (1998) 17 Cal.4th 396.)
Plaintiff’s reply brief fails to respond to Defendant’s argument that Plaintiff’s request for an order to show cause re: contempt fails to provide adequate notice to Defendant’s attorney of record and should be discharged on that basis as to such attorney. The Court finds that Plaintiff has conceded to Defendant’s argument on this point. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)
The Court GRANTS Defendant’s request for judicial notice.
Certain acts of omissions with respect to a court of law are contempts of authority of the court such as: (1) abuse of the process or proceedings of the court, or falsely pretending to act under authority of an order or process of the court; (2) disobedience of any lawful judgment, order or process of the court; or (3) any other unlawful interference with the process or proceedings of a court. (Code Civ. Proc. § 1209.) “When a contempt is committed int eh immediate view and presence of the court, or of the judge at chambers, it may be punished summarily.” (Code Civ. Proc. § 1211(a).) “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.” (Id.) In the context of an affidavit or statement of facts submitted in connect with a contempt motion “[i]f no objection is made to the sufficiency of such affidavit or statement during the hearing on the chargers contained therein, jurisdiction of the subject matter shall not depend on the averments of such affidavit or statement, but may be established by the facts found by the trial court to have been proved at such hearing, and the court shall cause the affidavit or statement to be amended to conform to proof.” (Code Civ. Proc. § 1211.5(a).) A court has the power to: (1) compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein; and (2) to amend and control its process and orders so as to make them conform to law and justice. (Code Civ. Proc. § 128.)
Los Angeles Superior Court Local Rules, Rule 3.11 says that “[a] direct contempt committed in the immediate view and presence of the judge in court or in chambers will be handled by the judge before whom the contempt occurs. Indirect contempts may be heard in the department to which the case is assigned.” Los Angeles Superior Court Local Rules, Rule 3.11(a) says that “[a]lthough Code of Civil Procedure section 1212 permits a warrant of attachment against the person charged with contempt, the standard procedure is section 1212’s alternative method of issuance of an order to show cause (“OSC”) re: contempt. An OSC will issue if the affidavit is sufficient, and the OSC must then be personally served on the accused person.” Los Angeles Superior Court Local Rules, Rule 3.11(b) says that “[t]he hearing on the OSC re: contempt is in the nature of a quasi-criminal trial.” Los Angeles Superior Court Local Rules, Rule 3.11(c) says that “[i]f the court finds the accused person guilty, the court may impose a fine of up to $1,000, imprison the person for up to five days, or both, for each act of contempt . . . [w]hen the contempt consists of the omission to perform an act which is yet in the power of the person to perform, the court may order that the person be imprisoned until the act is performed.” California Code of Civil Procedure, Section 1219 says that “if the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment.”
Plaintiff’s Evidence Supporting Contempt
Plaintiff declares that: (1) he has been in litigation with Defendant since 2011 and the litigation arises out of personal properties which form the subject matter of this litigation (Moore Decl. at ¶ 2); (2) in August 2013, he won an action for conversion and trespass to chattel (Id. at ¶ 3); (3) the jury found that Plaintiff had the right to possess and or own the subject properties (Id. at ¶ 4); (4) on November 8, 2013, Judge Michelle Rosenblatt made an order that the properties be returned to him forthwith and that included Defendant’s attorneys and agents (Id. at ¶ 5 and Exhibit A); (5) there was an appeal of this action in which Defendant claimed she was the owner of the real and personal property but Defendant did not prevail in her appeal (Id. at ¶ 6); (6) in her first bankruptcy, she filed documents under penalty of perjury that she was holding the property for a third party some of which forms the subject matter of this lawsuit (Id. at ¶ 7); (7) the judge in Defendant’s second bankruptcy signed an order and stated that parties who were claiming an interest in the properties Defendant was holding for third parties could go to state court with their claims (Id. at ¶ 8); (8) Defendant has filed documents with this court stating the claims to the property were discharged (Id.); (9) both Defendant and her attorney of record in the bankruptcy and anyone appearing for her currently are aware that her claim of discharge is untrue (Id. at ¶ 8 and Exhibit F); (10) in the trial and appeal with respect to the instant action, Defendant has claimed she purchased 6150 Shenandoah Avenue from Ronald Hills (Id. at ¶ 9 and Exhibit I); (11) in Defendant’s declaration filed with this court in September 2018, Defendant stated that she has not presently nor has she ever done business with Ronald Hills (Id. at ¶ 10 and Exhibit H); (12) Plaintiff asks this court to set an OSC re contempt as to Defendant and any attorney who is appearing with and for her (Id. at ¶ 12); (13) the Court has the power to stop these lies, falsity, and untrue statements and further justice in the manner it continues (Id. at ¶ 13); and (14) he requests that the court award him sanctions under any and all applicable statutes and rules. (Id. at ¶ 14.)
Defendant’s Evidence Opposing Contempt
Defendant declares that: (1) she filed for relief under Chapter 7 of the U.S. Bankruptcy Code on September 28, 2016 and she obtained a discharge of her debts on January 9, 2017 (Barbour Decl. at ¶ 10 and Exhibit 8); (2) the Ninth Circuit Court of Appeal ruled and affirmed the issuance of writs of execution by the U.S. District Court to Wells Fargo Bank, N.A. (Id. at ¶ 11 and Exhibit 9); (3) an order granting relief from automatic stay to Wells Fargo Bank, N.A. was issued to recover property in her possession (Id. at ¶ 12 and Exhibit 10); (4) Wells Fargo Bank, N.A. then obtained an order re: instructions to the U.S. Marshal regarding recovery of the property subject to the writs which was in her possession (Id. at ¶ 13 and Exhibit 11); (5) Plaintiff filed his own motion for relief from the automatic stay in Defendant’s bankruptcy case (Id. at ¶ 14 and Exhibit 12); (6) she does not have any property belonging to Plaintiff or his companies (Id. at ¶ 14); (7) Wells Fargo Bank, N.A. took that property pursuant to Court orders to which she could be held in contempt if she obstructed the effort of the U.S. Marshal if she tried to interfere (Id.); (8) on February 27, 2018, Judge Georgina Torres Rizk found that Plaintiff had failed to obtain a writ of possession and as such the court refused to hold Defendant in contempt on the basis that Plaintiff had never obtained a court order requiring the property to be turned over (Id. at ¶ 15 and Exhibit 13); (9) to the best of her knowledge, Plaintiff has never obtained a writ of possession for the personal property he claims (Id. at ¶ 15); (10) because Wells Fargo Bank, N.A. has retrieved the personal property pursuant to a writ issued by the District Court, the personal property in question is no longer in her possession and she has no ability to comply with the court order. (Id. at ¶ 16.)
Defendant also declares that: (1) she does not know who the “counsel of record” is that Plaintiff refers to in his notice for this proceeding (Id. at ¶ 17); (2) Thomasina M. Reed represented her during trial before Judge Rosenblatt (Id.); (3) she has had various attorneys represent her in bankruptcy court and in connection with the appeal (Id.); (4) she has no idea which of her counsel Plaintiff is seeking to hold in contempt (Id.); (5) Wells Fargo executed on its writ of possession and she does not have Plaintiff’s personal belongings and the business property that was taken by Wells Fargo (Id. at ¶ 19); (6) she has no means to comply with any order to turn the property over to Plaintiff, short of somehow taking the property back to hold it for Plaintiff but she has no idea where any of the property is today (Id.); (7) this is a change in circumstances of which Plaintiff is fully aware; and (8) she has received a bankruptcy discharge for any damages Plaintiff could claim to have against her arising from her alleged taking of property as found in the Interlocutory Judgment. (Id.)
“The facts essential to jurisdiction for a contempt proceeding are (1) the making of the order; (2) knowledge of the order; (3) ability of the respondent to render compliance, [and] (4) wilful disobedience of the order.” (Application of Liu (1969) 273 Cal.App.2d 135, 140.)
The Court finds that based on Defendant’s declaration and the lack of any opposing evidence presented by Plaintiff to contrary, there is no possibility that Defendant can comply with the Court’s November 8, 2013 ruling. Defendant has clearly declared, under the penalty of perjury, that she no longer possesses any of the property at issue in the November 8, 2013 judgment due to the writ executed by Wells Fargo. Thus, under Liu, there is no basis for this Court to hold Defendant in contempt or order an OSC re: contempt. Plaintiff provides no legal authority to support an argument that inconsistent or contradictory statements in pleadings or affidavits rise to the level of contemptable behavior or that inconsistent and contradictory statements are per se false and warrant a finding of contempt.
Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion in its entirety.
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the
hearing, the motion will be placed off calendar.
Dated this 27th day of December 2019
Hon. Holly J. Fujie
Judge of the Superior Court