Marlyn Sali et al v. Universal Health Services of Rancho Springs Inc et al

Filing 152

CERTIFICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT by Magistrate Judge Jean P. Rosenbluth. Defendants seek an Order to Show Cause re Contempt against Plaintiffs' counsel, to be heard by the District Judge, concerning Plaintiffs' counsel 's refusal to pay a previously ordered sanctions award. The Court hereby grants the request. IT THEREFORE IS ORDERED that Jerusalem Beligan appear on August 14, 2015, at 10 a.m., in the Courtroom of the Honorable Philip S. Gutierrez, U.S. District Judge, to show cause why he should not be adjudged in contempt by reason of the facts certified in the undersigned's Certification for Order to Show Cause re Contempt. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARILYN SALI et al.,
Plaintiffs,

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vs.
UNIVERSAL HEALTH SERVICES
et al.,

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Defendants.

) Case No. EDCV 14-0985-PSG (JPRx)
)
)
) CERTIFICATION FOR ORDER TO SHOW
) CAUSE RE CONTEMPT
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Defendants seek an Order to Show Cause re Contempt against

18 Plaintiffs’ counsel, to be heard by the District Judge,
19 concerning Plaintiffs’ counsel’s refusal to pay a previously
20 ordered sanctions award.

The Court hereby grants the request.

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STATEMENT OF CERTIFIED FACTS

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On April 7, 2015, the undersigned denied Defendants’ ex

23 parte application to compel two depositions but ordered
24 Plaintiffs’ counsel, Jerusalem Beligan, to make expert Mark
25 Falkenhagen available for deposition on April 13,1 as Beligan had
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The Court actually “instructed” Beligan to do so.
An
instruction by a judge is the equivalent of an order, however. See
Instruct,
Merriam-Webster
Dictionary,
http://www.merriam1

1 indicated he was willing to do.

(See Apr. 7, 2015 Order at 2.)

2 The docket reflects that Plaintiffs did not seek review of the
3 order.

According to Defendants’ counsel, neither Falkenhagen nor

4 Plaintiffs’ counsel appeared for the deposition, nor did they
5 provide notice to Defendants that they would not attend.

(OSC

6 Req., Fahimi Decl. ¶¶ 2-3 & Ex. A.)
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On June 9, 2015, the undersigned granted in part Defendants’

8 request for sanctions related to Plaintiffs’ failure to produce
9 Falkenhagen on April 13, ordering Plaintiffs’ counsel to pay
10 Defendants $15,112 no later than June 16.
11 4.)

(June 9, 2015 Order at

Plaintiffs’ counsel have apparently refused to do so,

12 stating in emails to Defendants’ counsel that they “intend to
13 appeal the Court’s order” and that they “don’t believe [we] have
14 to comply with the order when we disagree with” it.

(OSC Req.,

15 Fahimi Decl. ¶¶ 4, 6 & Exs. B, D.)
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The time for seeking reconsideration of the sanctions order

17 under Local Rule 72-2 expired on June 23, 2015, without
18 Plaintiffs seeking such review.

See C.D. Cal. R. 72-2.1

19 (requiring that any party seeking to object to nondispositive
20 magistrate-judge order “must file a motion for review by the
21 assigned District Judge” within 14 days of service of written
22 ruling).

According to Defendants, as of the July 9 filing of

23 their OSC request, Plaintiffs’ counsel had not paid the ordered
24 sanctions.

(OSC Req., Fahimi Decl. ¶ 7.)

25
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webster.com/dictionary/instruct

(last

visited

Aug.

3,

2015)

28 (defining “instruct” as “to give someone an order or command”).
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DISCUSSION
When an act “constitut[ing] a civil contempt” occurs in a

3 discovery-related proceeding,
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[T]he magistrate judge shall forthwith certify the facts

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to a district judge and may serve or cause to be served,

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upon any person whose behavior is brought into question

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under this paragraph, an order requiring such person to

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appear before a district judge upon a day certain to show

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cause why that person should not be adjudged in contempt

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by reason of the facts so certified.

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shall thereupon hear the evidence as to the act or

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conduct complained of and, if it is such as to warrant

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punishment, punish such person in the same manner and to

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the same extent as for a contempt committed before a

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district judge.

The district judge

16 28 U.S.C. § 636(e)(6); see also Assignment of Duties to
17 Magistrate Judges, C.D. Cal. Gen. Order 05-07 (2005).

The

18 magistrate judge’s role is to determine whether the moving party
19 can assert sufficient evidence to establish a prima facie case of
20 contempt.

See Proctor v. State Gov’t of N.C., 830 F.2d 514, 521

21 (4th Cir. 1987).

A party alleging that another person should be

22 held in civil contempt must demonstrate by clear and convincing
23 evidence that that person violated a court order.
24 v. Ayres, 166 F.3d 991, 994 (9th Cir. 1999).

United States

Once that prima

25 facie showing is made, the burden shifts to the alleged contemnor
26 to “produce evidence explaining his noncompliance.”

Id. (citing

27 Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998)).
28 Accordingly, the undersigned’s role is limited to determining
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1 whether Defendants have shown by clear and convincing evidence
2 that Plaintiffs’ counsel violated an earlier Court order.
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Defendants have clearly satisfied their burden.

Indeed,

4 Plaintiffs’ counsel has apparently acknowledged that he has not
5 complied with the June 9 order (or the April 7 one, for that
6 matter), claiming that he was not obligated to because he intends
7 to appeal.

The time for requesting review by the District Judge

8 has long passed, however, without Plaintiffs’ seeking such
9 review.

Although it is not the undersigned’s function or

10 responsibility to determine whether Plaintiffs’ counsel was
11 justified in disobeying the sanctions order, the Court’s
12 reasoning in ordering sanctions is fully explained in its June 9
13 order.
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For the foregoing reasons, the undersigned certifies the

15 facts stated above.
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ORDER TO SHOW CAUSE

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IT THEREFORE IS ORDERED that Jerusalem Beligan appear on

18 August 14, 2015, at 10 a.m., in the Courtroom of the Honorable
19 Philip S. Gutierrez, U.S. District Judge, to show cause why he
20 should not be adjudged in contempt by reason of the facts
21 certified in the undersigned’s Certification for Order to Show
22 Cause re Contempt.
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25 DATED: August 10, 2015
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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