On 14 February 2014, the motions of plaintiffs Thomas Montelbano and Kathleen A. Jehle and corss-complainants Vijay K. Lumba and Martha I. Lumba, Trustees of the Lumba Family Trust (the “Lumbas”) for contempt and monetary sanctions was argued and submitted. Defendant, Michael Miroyan did not file formal opposition to the motion.
Background
This action arises from a boundary dispute between three adjacent properties in the foothills of San Jose, California.
On 17 September 2013, this Court issued an order against defendant and cross-complainant Michael Miroyan (“Defendant”) to submit to a deposition and for monetary sanctions. Mr. Miroyan was to pay plaintiffs/cross-defendants Thomas Montelbano and Kathleen Jehle for attorney fees and court costs in the amount of $1,770.00. In addition, Mr. Miroyan was to pay defendants/cross-complaintants the Lumbas $4,727.00, for attorney fees and court costs. The monetary sanctions were due within 20 days of the September 17, 2013 order.
Mr. Miroyan complied with deposition portion of the order, but failed to pay the monetary sanctions issued against him.
On 18 October 2013, Mr. Miroyan ceased representing himself and paid attorney Perry R. Woodward and his firm Terra Law LLP a retainer to represent him and Sweet 140 LLC in these matters.
On 4 November 2013, counsel for Montelbano and Jehle, wrote a letter to Mr. Woodward regarding the unpaid monetary sanctions. (See Declaration of Gregory M. Gentile, Exh. C.)
On 27 November 2013, in a hearing before Judge Kevin McKenney, Mr. Miroyan stated in open court he paid Mr. Woodward a $55,000.00 retainer. (See Declaration of Gregory M. Gentile, Exh. D.)
On 03 December 2013, Mr. Miroyan fired Mr. Woodward as his counsel.
To date, Mr. Miroyan has yet to pay the monetary sanctions issued against him.
Discussion
Code of Civil Procedure § 1218(a) states that,
[u]pon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.
Here, Mr. Miroyan has failed to pay the ordered monetary sanctions against him. This Court does not take non-compliance with a Court Order lightly. The Court has the inherent power to control the proceedings before it and to make orders which prevent the frustration, abuse, or disregard of the Court’s processes. (See Conn v. Superior Court (1987) 196 Cal.App.3d 774, 785.)
If the contemptuous conduct involves the failure to perform an act that is within the person’s power to perform, the person can be imprisoned until he has performed it. (Id.; Code of Civil Procedure § 1219(a); See Morelli v. Superior Court (1969) 1 Cal.3d 328, 332 & n. 3.)
The motions of plaintiffs Thomas Montelbano and cross-complainants the Lumbas, requesting a finding of contempt is GRANTED as follows:
1. Mr. Miroyan is ordered to appear on February 14, 2013 to show cause why he has not paid the ordered monetary sanctions to plaintiffs Montelbano and Jehle and cross-complainants the Lumbas; or
2. Mr. Miroyan is ordered to appear on February 14, 2013 to show cause why he should not be fined or imprisoned for up to 5 days for failing to comply with a lawful court order under Code of Civil Procedure § 1209(a)(5).
Monetary Sanctions
DEFERRED PENDING HEARING.