Professional Interactive Entertainment v. Super. Ct.

Filed 12/30/09 Professional Interactive Entertainment v. Super. Ct. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDING; petition for writ of mandate. John P. Shook, Judge. Petition granted.

Michael S. Traylor for Petitioners.

No appearance for Respondent.

Wolf, Rifkin, Shapiro, Schulman & Rabkin and Jeffrey I. Abrams for Real Parties in Interest.

___________________________

The trial court erred in scheduling an Order to Show Cause re Contempt hearing on November 17, 2009 without a charging affidavit. Accordingly, the petition is granted.[1]

FACTUAL AND PROCEDURAL BACKGROUND

Professional Interactive Entertainment, Inc. (PIE), entered into an agreement with Jay Shapiro (a CPA) and Sunrise Media Group, Inc. (Shapiro), dated January 1, 2008, for Shapiro to provide his personal professional services to PIE as a temporary CFO for a period of one year. There was an alleged breach of the agreement and Shapiro sued PIE. On April 29, 2009, the trial court entered judgment against PIE and in favor of Shapiro. PIE appealed.[2]

In connection with postjudgment enforcement efforts, Shapiro served requests for production of documents upon PIE. PIE failed to serve timely either a written response or produce any documents in response to those document requests. Shapiro filed a motion to compel.

On July 16, 2009, the trial court granted the motion to compel and ordered PIE to produce responsive documents no later than 5:00 p.m., on July 17, 2009. In addition, the trial court stated that it would stay the imposition of any sanctions based upon the conduct of PIE in producing the requested documents. No documents were produced. Defendants failed to produce any documents at their judgment debtor examinations.

The trial court ordered PIE to produce any supplemental documents immediately, and to file and serve any opposition by no later than September 29, 2009. Rather than immediately produce the documents, PIE further delayed supplemental production until September 29, 2009, when PIE served Shapiro with a supplemental document production which consisted of selective and redacted financial documents, all of which could have been produced pursuant to the trial courts July 16, 2009 order. Shapiro requested that PIE be held in contempt. On August 25, 2009, the parties were before the trial court on Shapiros application of contempt and sanctions. That morning PIE produced some documents.

On October 1, 2009, the trial court set the matter for an Order to Show Cause re Contempt, for PIE and counsel, on November 17, 2009.

DISCUSSION

There is a procedural due process issue regarding the Order to Show Cause re Contempt.

There is no charging affidavit. Here, the alleged contempt is PIEs failure to obey a trial court order requiring production of documents. This is an indirect contempt matter, in which the trial court is being asked to punish conduct that took place outside its presence. When the contempt is not committed in the immediate view and presence of the court . . . , an affidavit shall be presented to the court or the judge of the facts constituting the contempt . . . . (Code Civ. Proc.,[3] 1211, subd. (a).) Such an affidavit must be provided to initiate contempt proceedings in order to give the alleged contemnor his normal due process rightsthe right to have notice of the charges against him in order to have the reasonable opportunity to prepare a defense. (In re Cowan (1991) 230 Cal.App.3d 1281, 1289.) The charging affidavit must cover each element of the commission, providing facts, not conclusions ( 1211.5); indeed, the affidavit constitutes the complaint in an indirect contempt proceeding. (Lyon v. Superior Court (1968) 68 Cal.2d 446, 452.)

Without the charging affidavit, the trial court should not have scheduled the Order to Show Cause re Contempt.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of October 1, 2009, setting an Order to Show Cause re Contempt hearing, in Los Angeles Superior Court case No. BC394598, entitled Jay Shapiro et al.

v. Professional Interactive Entertainment, Inc. et al.

The temporary stay order is hereby terminated.

All parties shall bear their own costs.

NOT TO BE PUBLISHED

THE COURT:

_____________________ ____________________ ____________________

MALLANO, P. J. ROTHSCHILD, J. JOHNSON, J.

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[1] As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance. (Code Civ. Proc., 1088; Lewisv. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexanderv. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ngv. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the courts intention to issue a peremptory writ. (Palmav. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

[2] A fully-briefed appeal is pending on the issue of the propriety of the trial courts refusal to grant the mandatory relief provided in Code of Civil Procedure section 473, subdivision (b) after filing of an attorney affidavit of fault.

[3] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.