Johnson v. Castagnola

Filing 62

ORDER re August 22, 2019 Order to Show Cause Hearing 53 , 61 . Signed by Judge Susan van Keulen on August 29, 2019. (svklc2S, COURT STAFF) (Filed on 8/29/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD JOHNSON,

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Plaintiff,

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DANIEL CASTAGNOLA,

United States District Court
Northern District of California

Re: Dkt. No. 53

Defendant.

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ORDER RE: AUGUST 22, 2019 ORDER
TO SHOW CAUSE HEARING

v.

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Case No. 18-cv-00583-SVK

On August 6, 2019, this Court issued an Order to Show Cause directing Defendant Daniel

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Castagnola (“Castagnola”) and Defendant’s counsel, Michael Welch (“Mr. Welch”), to appear

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before the Court on August 22, 2019, and show cause, if any, why they should not be held in civil

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contempt for failure to comply with this Court’s orders of June 17, 2019, and July 24, 2019, and

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pay sanctions. Dkt. 53. The Court ORDERS as follows.

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I.

BACKGROUND

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In this civil action, Plaintiff filed a complaint on January 26, 2018, alleging claims under

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the Americans with Disabilities Act (“ADA”) and the Unruh Civil Rights Act (“Unruh Act”).

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Dkt. 1. On December 10, 2018, the Court granted Plaintiff’s unopposed motion for summary

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judgment and awarded Plaintiff $4,000 in statutory damages. Dkt. 32; Dkt. 33. The Court also

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awarded Plaintiff $5,705 in fees and $149.25 in costs. Dkt. 39.

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At Plaintiff’s request, on March 27, 2019, this Court issued an Order directing Defendant

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Daniel Castagnola (“Castagnola”) to appear in this Court on April 23, 2019, at 9:30 a.m. for a

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judgment debtor exam. Dkt. 42. After Plaintiff failed to timely serve the Court’s March 27, 2019,

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Order on Plaintiff, the Court granted Plaintiff’s unopposed request to continue the judgment

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debtor exam to July 23, 2019 at 10:00 a.m. Dkt. 46 (“June 17, 2019 Order”). The docket

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indicates that both Orders were personally served on Castagnola on July 5, 2019. Dkt. 47. On

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July 23, 2019, Plaintiff’s counsel appeared for the judgment debtor exam. However, both

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Castagnola and his counsel, Michael Welch (“Mr. Welch”), failed to appear as ordered. Dkt. 48.

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The California Code of Civil Procedure authorizes courts to hold an individual who fails to

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appear for a judgment debtor examination in contempt, issue a warrant for her arrest and award

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reasonable attorney’s fees to the judgment creditor. See Cal. Civ. Proc. Code § 708.170. Based

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on Castagnola’s and Mr. Welch’s failures to appear for the July 23, 2019 judgment debtor exam,

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the Court issued an Order to show cause regarding civil sanctions only as to Castagnola on

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July 24, 2019 (“July 24, 2019 Order”). Dkt. 49. On July 31, 2019, Plaintiff’s counsel filed a

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declaration in support of a request for monetary sanctions in the amount of $2,106.00 for expenses
incurred in preparation for the July 23, 2019 judgment debtor examination. Dkt. 50. Plaintiff’s

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United States District Court
Northern District of California

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counsel also averred that while Mr. Welch had been served with the July 24, 2019 Order,

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Castagnola had not been served, despite numerous attempts to do so at his place of business. Id.

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Because Plaintiff was unable to serve Castagnola with the Court’s July 24, 2019 Order to

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show cause, the Court held a status conference on August 6, 2019. Both counsel for Plaintiff and

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Mr. Welch appeared. Castagnola did not appear. Mr. Welch indicated that he no longer

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represented Castagnola in this matter. The Court noted that Mr. Welch remained counsel of

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record. The Court issued an Order on August 6, 2019 directing Castagnola and Mr. Welch to

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appear before the Court on August 22, 2019 to show cause, if any, as to why they should not be:

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(1) held in civil contempt for failing to comply with this Court’s June 17, 2019 Order and the July

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24, 2019 Order, and (2) ordered to pay sanctions. Dkt. 53. The Court directed Plaintiff to file a

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supplemental declaration regarding Plaintiff’s attempts to serve Castagnola with the Court’s July

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24, 2019 and August 6, 2019 Orders. Id. Plaintiff was also permitted to file a supplemental

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declaration regarding any additional fees and costs incurred. Id. The Court specifically warned

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Castagnola and Mr. Welch that their failures to appear at the August 22, 2019 hearing would result
in civil contempt sanctions of $2,100.00 at a minimum and $5,000.00 at a maximum. Id.
On August 19, 2019, Plaintiff’s counsel filed a supplemental declaration in support of a
request for additional monetary sanctions in the amount of $1,908.00. Dkt. 56. Plaintiff’s counsel
averred that the additional monetary sanctions were the fees incurred in attempting to serve
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Castagnola. Id. Plaintiff’s counsel outlined his numerous attempts to serve Castagnola with this

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Court’s July 24, 2019 and August 6, 2019 Orders. Id. On August 20, 2019, Mr. Welch filed a

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Motion to Withdraw as Castagnola’s Counsel. Dkt. 57. In the motion, Mr. Welch stated that he

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has not been in contact with Castagnola, despite his “repeated efforts” over the past year. Id. On

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August 21, 2019, this Court issued an Order taking Defense counsel’s Motion to Withdraw under

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submission and ordering the August 22, 2019 hearing to proceed as scheduled. Dkt. 58. At the

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August 22, 2019 hearing, only Plaintiff’s counsel appeared. The Court has not yet ruled on the

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Motion to Withdraw.

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II.

LEGAL STANDARD

“[C]ourts have inherent power to enforce compliance with their lawful orders through civil

United States District Court
Northern District of California

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contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966). This power extends to

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magistrate judges presiding over civil consent cases. See 28 U.S.C. § 636(e)(4) (“In any case in

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which a United States magistrate judge presides with the consent of the parties . . . the magistrate

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judge may exercise the civil contempt authority of the district court.”). To establish civil

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contempt, “[t]he moving party has the burden of showing by clear and convincing evidence that

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the contemnors violated a specific and definite order of the court.” F.T.C. v. Affordable Media,

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179 F.3d 1228, 1239 (9th Cir. 1999) (citation and internal quotation marks omitted). A violation

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is generally shown by a party’s “failure to take all reasonable steps within the party’s power to

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comply.” Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006) (citation

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and internal quotation marks omitted). Contemnors then have the burden “to demonstrate why

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they were unable to comply.” F.T.C., 179 F.3d at 1239. The contemnor’s actions need not be

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willful. Reno Air Racing, 452 F.3d at 1126, 1130. A contemnor may, however, assert a defense

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based on an “inability to comply with [the] judicial order.” F.T.C., 179 F.3d at 1239. Finally, “[a]

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civil contempt proceeding is considered a ‘trial’ within the meaning of Rule 43(a), which means

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that oral testimony is required.” Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d

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492, 495 (9th Cir.1983)).

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Should a court find a party in contempt, it has discretion in deciding whether to impose
sanctions. “Sanctions for civil contempt may be imposed to coerce obedience to a court order, or
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to compensate the party pursuing the contempt action for injuries resulting from the contemptuous

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behavior, or both.” General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir.1986).

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In fashioning civil contempt sanctions, the court has the discretion to award reasonable fees and

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costs as a remedial measure, regardless of whether the party that is in contempt acted willfully.

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Perry v. O'Donnell, 759 F.2d 702, 704–705 (9th Cir.1985). Contempt sanctions may be awarded

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to the prevailing party. Ahearn ex rel. N.L.R.B v. Int’l Longshore and Warehouse Union, 721 F.3d

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112 (9th Cir. 2013) (“The key is that contempt sanctions are available as compensation when they

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are awarded to the prevailing party in the litigation.”).
III.

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ANALYSIS

Here, it is undisputed that Castagnola and Mr. Welch disobeyed multiple specific and

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United States District Court
Northern District of California

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definite court orders. The Court’s August 6, 2019 Order required Castagnola and Mr. Welch to

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appear before the Court on August 22, 2019 to show cause as to why they should not be found in

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civil contempt and why Plaintiff should not be awarded sanctions. Dkt. 53. The Court

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specifically cautioned Castagnola and Mr. Welch that failure to appear at the show cause hearing

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would result in a finding of civil contempt and/or sanctions. Id. The only response to the Court’s

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August 6, 2019 Order was a Motion to Withdraw as Counsel filed by Mr. Welch two days before

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the show cause hearing was to be conducted. Dkt. 57. Beyond the sole Motion to Withdraw as

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Counsel, neither Castagnola nor Mr. Welch offered any explanation as to why they were not able

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to comply with the June 17, 2019 Order or the July 24, 2019 Order. In addition, neither

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Castagnola nor Mr. Welch adhered to the Court’s August 6, 2019 Order, as they both failed to

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appear before the Court on August 22, 2019. Although Mr. Welch filed a Motion to Withdraw as

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Counsel and cited, among other reasons, an inability to contact Castagnola, Mr. Welch was still

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the counsel of record and was required to appear at the show cause hearing. The Court concludes

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that Castagnola violated the Court’s June 17, 2019 Order, the July 24, 2019 Order, and the August

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6, 2019 Order. The Court further concludes that Mr. Welch violated the Court’s August 6, 2019

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Order.

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Accordingly, in an effort to deter further disregard for this Court’s Orders, the Court
hereby holds Castagnola in civil contempt and sanctions him in the amount of $3,500.00.
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Furthermore, the Court sanctions Mr. Welch in the amount of $500.00 for his failure to follow the

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Court’s August 6, 2019 Order.

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IV.

CONCLUSION

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For the foregoing reasons, the Court ORDERS the following:

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1.

Castagnola is in civil contempt of this Court for his failure to comply with: (1) this
Court’s June 17, 2019 Order directing him to appear for a judgment debtor exam;

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(2) this Court’s July 24, 2019 Order directing him to show cause as to why he

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should not be found in civil contempt; and (3) this Court’s August 6, 2019 Order

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directing him to show cause as to why he should not be found in civil contempt.

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Castagnola is SANCTIONED in the amount of $3500.00, payable to Plaintiff’s

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United States District Court
Northern District of California

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Counsel Jonathan S. Larsen.

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2.

Mr. Welch of Michael Welch & Associates is SANCTIONED in the amount of

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$500.00 for his failure to follow this Court’s August 6, 2019 Order, payable to

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Plaintiff’s Counsel Jonathan S. Larsen.

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SO ORDERED.

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Dated: August 29, 2019

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SUSAN VAN KEULEN
United States Magistrate Judge

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