2011-00107451-CU-PO

Gina and James Poulos vs. Restaurant Depot

Nature of Proceeding: Application for OSC Re: Compliance with Order Enforcing CCP998

Filed By: Schroeder, Jr., Edward C.

Defendant RD America, LLC dba Restaurant Depot’s application for Order to Show
Cause Re: Compliance With Order Enforcing CCP Section 998 Settlement is denied,
without prejudice.

In the instant action, this Court granted Defendant’s motion to enforce a settlement on
July 9, 2013. Defendant states that despite such order, Plaintiff Gina Poulos has failed
to dismiss Defendant from the action or execute the general release called for by the
settlement. Pursuant to the application, Defendant asks that Plaintiff be ordered to
show cause why she failed to comply with the order and if she cannot do so to be held
in contempt. However, as seen from the papers, while Defendant titles the application
as one seeking an OSC, it has not presented any proposed OSC for the Court to sign
and issue and instead Defendant essentially seeks to have a contempt hearing and
have Plaintiff held in contempt prior to the issuance and service of an order to show
cause. Defendant even requests that Plaintiff be fined and/or imprisoned and seeks
contempt sanctions pursuant to CCP § 1218(a). This the Court cannot do. In reply,
Defendant recognizes that an OSC must first be issued as it states that Plaintiff’s
arguments in opposition are premature and would only be appropriate at the actual
hearing on an OSC if an OSC is issued. Nevertheless, Defendant still failed to present
an OSC for the Court to sign and issue.

A court cannot, as Defendant seeks to have this court here, punish a contempt
committed outside its presence without a full hearing at which the alleged contemptor appears through personal service of an order to show cause. (CCP § 1212; Lund v.
Superior Court (1964) 61 Cal.2d 698, 713.) While Defendant appears to believe that it
is simply seeking an OSC, despite its statements in its papers that “at a minimum, the
Court should hold Plaintiff in contempt and award [$2,160 in attorneys fees and costs]
as sanction for [Plaintiff’s] contempt”, as stated above, a proposed OSC has not even
been presented with the application. Instead, the application simply assumes that the
application is sufficient to require Plaintiff to appear to show cause why she should not
be held in contempt on the date selected for the instant hearing. As explained above,
it is not.

However, as it is clear from Plaintiff’s opposition that she has not complied with the
Court order on Defendant’s motion to enforce a settlement (as she states that if she
complies, she will lose the ability to challenge the order), the Court will entertain
signing and issuing an OSC re: contempt if one is appropriately presented by
Defendant. Defendant may present a proposed OSC on an ex parte basis.
Parenthetically, an order to show cause to bring a party into contempt must be served
on the alleged contemner in the same manner as a summons, i.e., by personal service
on the contemner even if he or she is represented by counsel. See CCP §§1016–
1017; Cedars-Sinai Imaging Medical Group v Superior Court (2000) 83 CA4th 1281,
1286–1288 The Court, however, will not issue an OSC in connection with the instant
application as a proposed OSC was not presented with the application.

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.