2013-00144287-CU-WE

Danilo Sese vs. Wells Fargo Bank

Nature of Proceeding:      Motion to Hold Plaintiff and His Counsel in Contempt

Filed By:   La, D. Dennis

Defendant’s Motion to Hold Plaintiff and His Counsel in Contempt, and for Evidentiary
and Monetary Sanctions is GRANTED in part and DENIED in part. C.C.P., sec.
2023.030(e).

On Sept. 17, 2013, this Court granted defendant’s motion to compel plaintiff’s verified
responses, without objections to defendant’s Request for Production of Documents
(set one).  Code Civil Proc. § 2031.300(c) Compliance was ordered by Sept. 27, 2013.
Moving party defendant now declares that plaintiff and his counsel have failed to
comply with that order.

The Court has received and considered a late filed opposition (filed Dec. 6, 2013
instead of Dec. 2, 2013).  However, the Opposition appears to address different
discovery requests than the one at issue here – the second Request for Production and
the First set of form interrogatories.  The Sept. 17, 2013 Court order addressed the
first Request for Production of Documents.  None of the attachments reflect that the
documents responsive to the first Request for Production have actually been
produced.

As the Opposition was late filed and served, the Court has also received a late filed
and served reply brief, which the Court has considered.

Although the Court notes that the plaintiff has appealed to the Third District Court of
Appeal from this Court’s order of Sept. 3, 2013, denying an interim award of attorneys’
fees to plaintiff based on Civil Code, sec. 2924.12(i), no automatic stay of this action is
in effect.

Motion for Contempt

Defendant now make a noticed motion for a finding of contempt of court, pursuant to
C.C.P., sec. 2023.030(e), for plaintiff’s failure to comply with the Court order.

However, a motion for contempt is not the proper procedure for imposition of sanctions
against plaintiff and his counsel, for failure to comply with a court order on the basis of
facts presented to this Court.

Section 1212 provides that the procedure for seeking an order of contempt when
contempt is not committed in the presence of the court is to seek an order to show
cause.  See In re Morelli (1970) 11 Cal.App.3d 819, 835. Where, as here, indirect
contempt, that is, contempt that occurs outside the Court’s presence, is alleged, due
process requires compliance with specific procedures to notify the person so charged
and allow him or her an opportunity to be heard. (See CCP §§1211, 1212; Hanson v.
Superior Court (2001) 91 Cal.App.4th 75, 81.) “In such cases an affidavit must be
presented to the court stating the facts constituting the contempt, an order to show
cause must be issued, and a hearing on the facts must be held by the judge.” (Arthur
v. Superior Court (1965) 62 Cal.2d 404, 408; see also CCP §§1212-1217.) As the
asserted contempt did not occur in the presence of the Court, an affidavit containing
proof of willful failure to obey a court order is required for the issuance of an Order to
Show Cause re contempt.  C.C.P., sec. 1211(a).

Here, the declaration of D. Dennis La is insufficient to support a finding of willful
disobedience of the Court order.  La merely declares that he has not received a single
response from plaintiff and/or any responsive documents. (La Dec. at para. 3.)

The motion re contempt is therefore denied.

Failure to Pay Monetary Sanctions

Defendant further complains that although monetary sanctions were ordered to be paid
by plaintiff’s counsel to defendant in the amount of $335 ($275/hr. x 1 hr. + $60 filing
fee) on or before October 17, 2013, the sanctions have not yet been paid.

However, the Court’s Sept. 17, 2013 Minute Order provided that “If the sanction is not
paid by that date, defendant may prepare for the court’s signature a formal order
granting the sanction, which may be enforced as a separate judgment. (Newland v.
Superior Court (1995) 40 Cal.App.4th 608, 615.)”  The Court files do not reflect the
submission or issuance of any formal order regarding monetary sanctions.

Plaintiff’s alleged failure to pay the monetary sanction is not among the practices that
constitute misuse of the discovery process for purposes of a sanctions order. (See
CCP §2023.010.) To the extent Defendant seeks to enforce the sanction award,
Defendant is not prohibited from doing so by the appropriate procedural mechanism.
Monetary sanction orders are enforceable through the execution of judgment laws.
(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 3 (The Rutter Group
1994) PP 9:344.21, 9:344.22, p. 9(1)-92.) These orders have the force and effect of a
money judgment, and are immediately enforceable through execution.

The Court will not impose further monetary sanctions for failure to pay monetary
sanctions.

Evidentiary Sanctions

In the alternative, moving party requests evidentiary sanctions for plaintiff’s failure to
comply with the Court order to produce all responsive documents to Defendants
Request for Production of Documents (set one) nos. 1-2, without objection, not later
than  Sept. 27, 2013.

The documents requested were: No. 1: “The retainer agreement between YOU and
Law Offices of Aldon L. Bolanos RELATING TO the COMPLAINT.” and No. 2: “The             contingency agreement between YOU and Law Offices of Aldon L. Bolanos
RELATING TO the COMPLAINT.”

Code Civil Proc. § 2031.300(c) provides that “If a party then fails to obey the order
compelling a response, the court may make those orders that are just, including the
imposition of an issue sanction, an evidence sanction, or a terminating sanction …. In
lieu of or in addition to this sanction, the court may impose a monetary sanction….”
Weil & Brown, Civil Procedure Before Trial, § 8:1489, p. 8H-39 (TRG 2013); Kravitz v.
Superior Court (2001) 91 Cal. App. 4th 1015, 1021.

In this case, on the initial motion to compel, plaintiff opposed the motion. Although at
that time, plaintiff contended he had responded to the discovery requests at issue, the
Court’s minute order reflected that plaintiff failed to present persuasive evidence that
his responses were ever served on defendant. The motion to compel was therefore
granted.

Now plaintiff entirely fails to file any meaningful opposition to this motion.

However, the reply brief filed on Dec. 10, 2013 concedes that on Dec. 9, 2013, counsel
for Wells Fargo finally received from plaintiff the documents responsive to Requests
nos. 1 and 2 as ordered by the Court on Sept. 17, 2013.

The motion for evidentiary sanctions is therefore moot.

Additional Monetary Sanctions

Additionally monetary sanctions for the attorneys’ fees incurred in bringing the
successful portion of this motion only, are to be paid by plaintiff to counsel for the
defense in the amount of $275 (one hour of attorneys’ fees) and the $60 filing fee for a
total of $335, not later than Monday, Jan. 13, 2014.   If the sanction is not paid by that
date, defendant may prepare for the court’s signature a formal order granting the
sanction, which may be enforced as a separate judgment. (Newland v. Superior Court
(1995) 40 Cal.App.4th 608, 615.)

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.