Kim Levine et al vs Janet Berschneider et al
Case No: 17CV03278
Hearing Date: Fri Jun 07, 2019 9:30

Nature of Proceedings: Motion to Show Cause; Request for Sanctions

ORDER AFTER HEARING: Plaintiffs’ motion is granted. Defense counsel is found to be in contempt of this court’s April 17, 2019 order. All settlement proceeds shall be disbursed immediately to plaintiff Santo Massine. Defense counsel Harry A. Safarian is ordered to pay monetary sanctions to plaintiffs in the sum of $4,630.30 within 10 days of the date of this order.

BACKGROUND:

This is an action for breach of contract, negligence, and private nuisance arising out of a residential lease agreement. In February 2017, plaintiff Kim Levine (“Levine”) executed a written lease agreement for real property located at 322 East Arrellaga Street, Santa Barbara, California 93101. The residential property is owned by defendant Janet Berschneider aka Jenna Berg acting individually and as Trustee of the Berg Family Trust and is managed by defendant Bungalow, LLC. Levine alleges that shortly after she and her minor son, plaintiff Santo Massine (“Massine”), began residing at the property they developed significant health problems as a result of mold inside the residence. In July 2017, Levine filed her complaint on behalf of herself individually and as guardian ad litem for Massine. The parties subsequently settled the action, with defendants agreeing to pay $50,001.00 to Massine and $25,001.00 to Levine.

On February 22, 2019, the court approved plaintiffs’ Third Amended Petition to Approve Minor’s Compromise. Subsequent to the hearing, the court issued an amended order on April 17, 2019, clarifying its position regarding the approved disbursement amounts for the $50,001.00 settlement obtained by plaintiff Massine. The court-approved disbursements are as follows:

$10,382.15 Medical Expenses (Ck. made payable to L/O of John B. Richards)

$12,500.00 Attorney fees (Ck. made payable to L/O of John B. Richards)

$6,452.33 Case Costs (Ck. made payable to L/O of John B. Richards)

$5,882.00 Property Damage (Ck. made payable to L/O of John B. Richards fbo Kim Levine)

$14,784.52 Massine Funds (Ck. payable to Premier Pacific Bank fbo Santo Massine)

$50,001.00 Total Settlement

Plaintiffs now move the court for an order to show cause for civil contempt pursuant to Code of Civil Procedure Section 1209 et seq., directed to attorney Harry A. Safarian, attorney for defendant Jenna Berg, for willful failure to comply with the court’s April 17, 2019 order approving plaintiffs’ Third Amended Petition to Approve Minor’s Compromise and disbursement of funds. Plaintiffs also request an order awarding monetary sanctions against Mr. Safarian in the sum of $4,630.30 for costs and fees incurred in these proceedings.

There is no filed opposition to the motion.

ANALYSIS:

Code of Civil Procedure Section 1209 provides in relevant part:

“(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

* * *

“(5) Disobedience of any lawful judgment, order, or process of the court.”

Disobedience of a lawful court order is a contempt of the authority of the court. Silvagni v. Superior Court (1958) 157 Cal.App.2d 287, 291. The facts essential to jurisdiction for a contempt proceeding are: (1) the making of an order, (2) knowledge of the order, (3) ability of the respondent to render compliance, and (4) wilful disobedience of the order. In re Liu (1969) 273 Cal.App.2d 135, 140. A party found guilty of contempt may be ordered to pay the opposing party’s attorney’s fees in connection with the contempt proceedings. Code Civ. Proc. §1218, subd. (a).

A proceeding for the punishment of contempt committed outside the presence of the court is commenced by the filling of an affidavit or declaration setting forth the alleged contemptuous conduct. “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.” Code Civ. Proc. §1211, subd. (a). The affidavit is, in effect, a complaint, frames the issues before the court, and is a jurisdictional prerequisite to the court’s power to punish. In re Gould (1961) 195 Cal.App.2d 172, 175.

The facts in this case establish that defendant is in contempt of a lawful court order. As detailed in plaintiffs’ papers, on April 17, 2019, the court entered an order approving plaintiffs’ Third Amended Petition to Approve Minor’s Compromise and disbursement of funds for the benefit of plaintiff Massine. (Richards Dec., ¶2, Ex. 1.) Since then, plaintiffs’ counsel has repeatedly contacted defense counsel, on April 21, April 22, April 25, April 26, May 3, May 9, and May 14, regarding the status of Massine’s settlement checks, but has received only evasive responses. (Richards Dec., ¶¶ 8, 11, 14, 19, 20, and 22, Exs. 7, 10, 13, 17, 18, 19, and 21.) At one point, defense counsel complained that the issue of claimant Phillip Black’s $20,000 lien still had not been resolved. (Richards Dec., Ex. 4.) However, the court made it very clear in its April 17, 2019 order that the lien did not affect in any way the payments to Massine. (Richards Dec., Ex. 5.) Still later, defense counsel complained that plaintiffs’ counsel had not “self-reported” himself to the State Bar because of an earlier sanctions order. (Richards Dec., Ex. 9.) Neither argument was a valid basis for withholding the payments to Massine and were asserted by counsel in bad faith and purely to obstruct the proceedings.

Based on the foregoing, the court will grant plaintiffs’ motion. The court finds that Mr. Safarian is in contempt for willfully failing to comply with its April 17, 2019 order. Defendant is ordered to immediately disburse Massine’s settlement funds in the sum of $50,001.00. In addition, Mr. Safarian is ordered to pay monetary sanctions to plaintiffs in the sum of $4,630.30 for reasonable attorney’s fees and costs incurred in these proceedings. (Richards Dec., ¶25.) The sanctions shall be paid within 10 days of the date of this order.