The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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BOARD OF DIRECTORS OF THE CASE NO. CV 19-02263 DSF (JCx)
11 MOTION PICTURE INDUSTRY
12 P ENSION PLAN, et al.,
Plaintiffs,
13 ORDER RE CONTEMPT
v.
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LUCKY FOOT PRODUCTIONS,
15 INC., a New York corporation,
16 Defendant.
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1 On September 14, 2020, an Order To Show Cause re Contempt (“OSC”)
2 issued ordering Defendant LUCKY FOOT PRODUCTIONS, INC., a New York
3 corporation (“Lucky Foot”) to show cause why it should not be held in contempt
4 for failing to comply with this Court’s March 2, 2020 Judgment. Lucky Foot was
5 further ordered to show cause why it should not be ordered to pay an additional
6 $8,459.50 in attorneys’ fees and $409.50 in costs associated with Plaintiffs’
7 attempts to enforce compliance with the Judgment and as provided in the
8 underlying agreement between the parties. A hearing was set for October 22, 2020
9 and Lucky Foot was ordered to file a written response no later than October 13,
10 2020. On September 29, 2020, the Court continued the hearing on the OSC to
11 November 23, 2020 and ordered Lucky Foot to file a written response no later
12 than November 2, 2020. Lucky Foot was properly served with the OSC on
13 October 13, 2020 but failed to file written opposition.
14 The OSC came on regularly for hearing on November 23, 2020 at which
15 time Kathryn J. Halford, Wohlner Kaplon Cutler Halford & Rosenfeld appeared
16 on behalf of Plaintiffs, Board of Directors of the Motion Picture Industry Pension
17 Plan, Board of Directors of the Motion Picture Industry Individual Account Plan
18 and Board of Directors of the Motion Picture Industry Health Plan (“Plans” or
19 “Plaintiffs”), Lucky Foot failed to appear as ordered. The Court finds there is
20 sufficient good cause to find Defendant Lucky Foot in civil contempt for the
21 failure to comply with the Judgment of March 2, 2020, within 30 days of service
22 or to provide any basis to justify non-compliance.
23 FINDINGS
24 1. The Judgment entered March 2, 2020 is a valid and lawful judgment
25 properly entered by this Court. The Judgment is specific and definite, ordering
26 Lucky Foot, within 30 days of entry of the Judgment, to:
27 A. Make available to the Plans the following records: crew
28 lists/call sheets; production cost bible and/or cash disbursement journals; and tax
1 forms, including 1099-MISCs issued during the audit period, and such other
2 records as may be necessary in the opinion of the Plaintiffs’ auditor and any other
3 records or information that the Plans require to examine for the period of March
4 20, 2017 to June 30, 2018;
5 B. Afford to the Plans and their authorized representatives both
6 ample time and opportunity to examine Lucky Foot’s materials as specified
7 above without harassment and at such time and at such place as shall be
8 mutually convenient to the authorized representatives of the Plans;
9 2. In the event Lucky Foot cannot produce all the records which the
10 Plans require to conduct their examination, it is ORDERED to participate in
11 record reconstruction whereby Lucky Foot shall have 30 days to:
12 A. Apply to the Federal and State agencies with which Lucky
13 Foot previously filed periodic reports pertaining to employees for copies of such
14 reports filed by them for all the periods for which Lucky Foot cannot produce
15 records to the Plans; and
16 B. Subsequently make available to the Plans all such copies of
17 Lucky Foot’s periodic reports to the Federal and State agencies under the
18 conditions set forth in 1(B), above.
19 C. Produce to Plans all such applicable records received from
20 such Federal and State agencies within fourteen (14) days of receipt.
21 3. Lucky Foot had actual notice of the Judgment.
22 4. Clear and convincing evidence establishes that Lucky Foot failed to
23 comply with the Judgment.
24 5. To avoid a contempt citation, Lucky Foot has the burden of
25 demonstrating it took every reasonable step to comply with the Judgment, or to
26 explain categorically and in detail why it is unable to comply. The Plaintiffs have
27 met their burden of demonstrating by clear and convincing evidence that Lucky
28 Foot violated a specific and definite order of this Court.
1 6. Lucky Foot was served with the Order to Show Cause re: Contempt
2 on October 13, 2020 but failed to file a written response or opposition as ordered.
3 7. Lucky Foot has failed to show cause why it should not be held in
4 contempt for failure to comply with the March 2, 2020 Judgment.
5 8. Lucky Foot has failed to show cause why this Court should not
6 impose a coercive contempt sanction of $300-500 per day upon a finding of
7 contempt until Defendant purges itself of its contempt.
8 9. Lucky Foot has failed to show cause why it should not be ordered to
9 pay an additional $8,459.50 in attorney’s fees and $409.50 in costs associated
10 with Plaintiffs’ attempts to enforce compliance with the Judgment and as provided
11 in the underlying agreement between the parties.
12 District courts have “wide latitude in determining whether there has been a
13 contemptuous defiance of its order.” Gifford v. Heckler, 741 F. 2d 263, 266 (9th
14 Cir. 1984), see also Stone v. City and County of San Francisco, 968 F. 2d 850,
15 856 (9th Cir. 1992). The moving party has the burden of showing by “clear and
16 convincing evidence” that the non-moving party violated a specific and definite”
17 order of the court.” Stone, 968 F. 2d at 856 n.9. If the moving party makes such a
18 showing, the burden shifts to each non-moving party to demonstrate that it “took
19 every reasonable step to comply” with the order. Id.
20 Plaintiffs have presented clear and convincing evidence that Lucky Foot
21 was served and failed to comply with the Judgment. Plaintiffs have also met their
22 burden of demonstrating by clear and convincing evidence that Lucky Foot
23 violated a specific and definite court order. Lucky Foot has the burden to show
24 that it took every reasonable step to comply with the Judgment, or to provide a
25 detailed explanation as to why it could not reasonably comply with the terms of
26 the Judgment. Lucky Foot failed to meet its burden to defeat a request for a
27 finding of civil contempt.
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1 Based on the foregoing, a finding of civil contempt against Lucky Foot is
2 warranted and a daily fine of $ 350 is appropriate.
3 IT IS HEREBY ORDERED:
4 1. Lucky Foot Productions, Inc., a New York corporation, is found to
5 be in civil contempt for violating the Court’s Judgment until such time as it
6 complies with the Court’s Judgment.
7 2. Beginning on the date of service of this Order re Contempt on Lucky
8 Foot Productions, Inc., a fine of $ 350 per day shall be imposed on Lucky Foot
9 Productions, Inc. The purpose of the fine is to coerce Lucky Foot Productions,
10 Inc. to comply with the Judgment. The daily fine shall continue until such time as
11 Lucky Foot Productions, Inc. fully complies with the Judgment or provides
12 sufficient evidence to this Court’s satisfaction that it cannot reasonably do so.
13 3. Lucky Foot Productions, Inc. is further ordered to pay $8,459.50 in
14 additional attorney’s fees and $409.50 in costs to Plaintiffs associated with
15 Plaintiffs’ attempts to enforce compliance with the Judgment and as provided in
16 the underlying agreement between the parties.
17 4. Lucky Foot Productions, Inc. and its President, NEKISA COOPER,
18 [Dkt 1-1, Id #12] [Dkt # 12-4, ID #67] are ORDERED TO APPEAR on
19 January12, 2021, at 1:30 P.M. in Courtroom 7D of the United States District
20 Court located at 350 W. 1st Street, Los Angeles, CA 90012 for further proceedings
21 in connection with this matter. The Court may decide to hold this hearing by
22 telephone or videoconference. If it does so, Lucky Foot Productions, Inc. and
23 Nekisha Cooper are ordered to appear by telephone or videoconference at that
24 time. Information concerning how to appear will appear on the Court’s publicly
25 posted calendar.
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1 5. Plaintiffs shall serve this Order re Contempt on Lucky Foot
2 | Productions, Inc. and Nekisha Cooper on or before January 5, 2021.
3 IT IS SO ORDERED.
4 | DATED: November 30, 2020 I) fe )
5 Honorable Daks: Fischer —
6 UNITED STATES DISTRICT JUDGE
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