2017-00212646-CU-BC

Suncountry Owners Association vs. Russell Thompson

Nature of Proceeding: Order to Show Cause for Contempt and Enforcement of Court Order

Filed By: Schweikert, Karl A.

Plaintiff and Judgment Creditor Suncountry Owners Association’s (Association) motion for an order to show cause (OSC) re: contempt against Defendant and Judgment Debtor Russell Thompson (Thompson) is GRANTED in part and DENIED in part as follows:

Thompson resides in a planned development community for seniors. The Association commenced this lawsuit based on allegations that, in violation of the community’s CC&Rs, Thompson was “refus[ing] to park his car in the garage and … [was] allowing two males under 45 years of age to reside at his home[.] (See Compl., ¶ 17.) On 7/10/18, the court entered default judgment against Thompson. The judgment includes monetary relief of approximately $8,000. It also enjoins Thompson to:

(a) Comply with the Declaration including, but not limited to, Sections 4.19(b) (the parking violations) and Section 4.2(d) (the age restriction violations).

(b) Park Defendant Thompson’s cars in his garage when not in use.

(b) Permanently remove the non-operating car.

(e) Immediately evict all persons under the age of 55 residing with Defendant Thompson longer than the 60-day time limit including Defendant Thompson wife’s two underage sons.

With their ex parte application for an OSC re: contempt, the Association produced evidence that, notwithstanding the injunction, Thompson still refuses to park his car in his garage, he still parks an inoperable car in his driveway, and he is still allowing persons under the age of 55 to live with him beyond the 60-day limit. (See Favichia Decl.; see also Schweikert Decl.)

The court set the matter for hearing on 1/15/19 and set a briefing schedule.

Thompson is representing himself in this matter. On 12/31/18, he filed an opposition to the motion. In the opposition, Thompson asserts that: (1) he is 84-years-old, on disability and in bankruptcy; (2) several other residents within his senior community are in violation of parking restrictions, yet the Association has only enforced the restrictions against him; (4) the underage people living with him “are a big help to [him] and [his] disabilitys” [sic]; and (3) the money judgment against him, which consists primarily of the Association’s attorney’s fees, is excessive.

An OSC re: contempt may only issue upon a factual showing, by the applying party’s affidavit, of four things: (1) the underlying order is valid, (2) the responding party has actual knowledge of that order, (3) the responding party has the ability to comply with the order, and (4) the responding party willfully disobeyed the order. (See Conn v.

Superior Court (Farmers Group) (1987) 196 Cal.App.3d 774, 784.) The affidavit initiating contempt may be based upon information and belief. (Freeman v. Superior Court of San Diego County (1955) 44 Cal.2d 533, 537.

The moving papers establish the requisite elements of contempt. The Association is entitled to an OSC re: contempt based on Thompson’s failure to comply with the injunctive provisions in the judgment against him. The Association is not entitled to an OSC on grounds Thompson has not paid the money judgment against him. There are other means to enforce a money judgment.

To the extent the Association seeks its fees and costs incurred to obtain the OSC, it may seek such amounts at the time of trial. (See CCP § 1218(a).)

Disposition

Pursuant to CRC 3.1312, the Association is directed to prepare for the court’s signature a formal OSC re: contempt. The OSC shall specify the grounds for the order, direct Thompson to appear for his arraignment in Department 54 at 9:00 AM on 2/15/19, and indicate that the matter will thereafter be referred to Department 47 for assignment for a short cause trial on the merits of the OSC re contempt. The OSC shall not invite any briefing.

Once the court signs the OSC, the Association shall promptly serve it upon Thompson, with the underlying application for an OSC and all supporting declarations and other supporting documents, in a manner in which a summons may be served. (See Cedars-Sinai Imaging Med. Grp. v. Superior Court (2000) 83 Cal.App.4th 1281, 1286-1287.)

The court notes Thompson’s misperception that the hearing on the OSC is set for Saturday, 1/19/19, rather than 1/15/19. (See Opp. at 3.) Counsel for the Association shall telephone Thompson immediately and inform him that (1) the hearing is set for 9:00AM on 1/15/19 and (2) no hearing will take place unless Thompson or the Association telephones Department 54 by 4:00PM today and requests oral argument. (See Local Rule 1.06.)