Case Number: BC613526 Hearing Date: March 15, 2018 Dept: 47

Dan K. Fordice III v. Mark Carter, et al.

MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT

MOVING PARTY: Plaintiff Dan K. Fordice III

RESPONDING PARTY(S): No oppositions filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Defendants allegedly breached an agreement to develop a full-length feature film in which Plaintiff invested $1,000,000, and instead squandered and converted Plaintiff’s entire investment.

Defendants filed a cross-complaint alleging that Plaintiff failed to fulfill his obligation to assist in raising the additional financing needed to complete the film. Plaintiff and Defendant attorney Yakub interfered with Defendants’ reputation, business, business interests, business prospects, and economic interests by filing the Complaint in this action.

Plaintiff Dan K. Fordice III moves for an order to show cause re contempt against Defendant Mark Cartier.

TENTATIVE RULING:

Plaintiff Dan K. Fordice III’s motion to set an order to show cause why Defendant Mark Cartier should not be held in contempt of Court for Defendant’s conscious disregard of the Court’s July 24, 2017 order compelling Cartier to sit for a limited deposition and answer Questions 2 through 7 addressed in Plaintiff’s motion to compel answers to deposition questions is GRANTED. An order show cause re: contempt is set for April 4, 2018 at 8:30 a.m. At the order to show cause, the Court will determine whether Defendant’s failure to appear was willful, and if so, whether Defendant is guilty of contempt, the amount of any fine and attorney’s fees to be imposed, and whether terminating, issue or evidentiary sanctions should be imposed.

Moreover, whether or not Plaintiff is entitled to attorney’s fees pursuant o CCP § 1218(a) depends, in substantial part, upon whether the Court finds Defendant Cartier to be guilty of contempt at the order to show cause.

DISCUSSION:

Motions For Order To Show Cause re Contempt

Plaintiff Dan K. Fordice III moves for an order to show cause why Defendant Mark Cartier should not be held in contempt of Court for Defendant’s conscious disregard of the Court’s July 24, 2017 order compelling Cartier to sit for a limited deposition and answer Questions 2 through 7 addressed in Plaintiff’s motion to compel answers to deposition questions, pursuant to CCP § 2025.480. Plaintiff also requested that the Court issue terminating, issue and evidentiary sanctions and award attorney’s fees pursuant to CCP § 1218(a).

(k) If a deponent fails to obey an order entered under this section, the failure may be considered a contempt of court. In addition, if the disobedient deponent is a party to the action or an officer, director, managing agent, or employee of a party, the court may make those orders that are just against the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against any party with whom the deponent is affiliated.

CCP § 2025.480(k)(bold emphasis added).

Defendant has failed to sit for his deposition as ordered by the Court, and on December 4, 2017, Defendant’s counsel has refused to appear for his deposition until Defendant’s motion to disqualify Plaintiff’s counsel has been heard. See Declaration of Jason K. Feldman, ¶¶ 4 – 12; Exh. 7 thereto.

The motion to set an order to show cause why Defendant Mark Cartier should not be held in contempt of Court for Defendant’s conscious disregard of the Court’s July 24, 2017 order compelling Cartier to sit for a limited deposition and answer Questions 2 through 7 addressed in Plaintiff’s motion to compel answers to deposition questions is GRANTED. An order show cause re: contempt is set for April 16, 2018. At the order to show cause, the Court will determine whether Defendant’s failure to appear was willful, and if so, whether Defendant is guilty of contempt, the amount of any fine and attorney’s fees to be imposed, and whether terminating, issue or evidentiary sanctions should be imposed.

The court may impose terminating sanctions after a party’s failure to comply with one court order to produce discovery if it is an “attempt[ ] to tailor the sanction to the harm caused by the withheld discovery.” Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-19.

“[T]he question before this court is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse. [Citation.]” (Id. at pp. 36-37.)

Collisson, supra, 21 Cal.App.4th at 1620.

In deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.

Moreover, whether or not Plaintiff is entitled to attorney’s fees pursuant o CCP § 1218(a) depends upon whether the Court finds Defendant Cartier to be guilty of contempt at the order to show cause. CCP § 1218(a) provides:

(a) Upon 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.

(Bold emphasis added.)

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 15, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court