United States District Court, N.D. California, San Jose Division
[PROPOSED] ORDER FINDING
RESPONDENT IN CIVIL CONTEMPT
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
United States seeks an order finding Respondent Jose
Hernandez (“Respondent”) in civil contempt based
on his failure to comply with the Court's order requiring
him to provide testimony and documents in response to two IRS
summonses. ECF No. 16. Having considered the government's
briefing, the relevant law, the January 11 and March 29,
2018, contempt show cause hearings, and the record in this
case, the Court hereby finds Respondent in civil contempt.
The Court imposes a daily fine of $50 per day beginning March
of an investigation into Jose Hernandez's tax liabilities
for 2004-2007, 2009, and 2012-2015, the IRS served two
summonses on Respondent on September 30, 2016, that required
Respondent to appear before the IRS on October 31, 2016 to
give testimony and produce documents related to the
investigation. ECF No. 1 (“Pet.”) at ¶¶
3, 6. The record before the Court shows that service was
properly made pursuant to 26 U.S.C. § 7603, which
requires service “by an attested copy delivered in hand
to the person to whom it is directed, or left at his last and
usual place of abode.” The IRS left the summonses at
Respondent's “last and usual place of abode.”
Pet. ¶ 6. However, Respondent did not appear on October
31, 2016 or produce testimony or records as requested by the
summonses. Pet. ¶¶ 8, 10.
letter dated December 1, 2016, Respondent was given another
opportunity to comply with the summonses by appearing for an
appointment with Revenue Officer Phillips on December 20,
2016. Pet. ¶ 9. Respondent did not comply. Pet. ¶
10. On January 5, 2017, Petitioner filed the instant action
to enforce the summonses. See Pet. On January 30,
2017, the Court issued an order to show cause and set a
briefing schedule and a hearing for March 21, 2017. ECF No.
7. The record shows Respondent was served with the verified
Petition and the order to show cause on February 2, 2017. ECF
Nos. 8, 26. However, the Court received no written response
to the order to show cause, and Respondent did not appear at
the show cause hearing. ECF No. 9.
March 21, 2017, the court entered an order for reassignment
and a recommendation report that the summonses be enforced.
ECF No. 10. On March 22, 2017, the order was personally
served on Respondent Jose Hernandez. ECF No. 12. On April 10,
2017, the Court issued an order adopting the recommendation
report and on April 12, 2017, it issued its Order Requiring
Respondent to Appear before Revenue Officer to Give Testimony
and Provide Items Described in Summonses. ECF Nos. 13, 16.
The order directed Respondent to appear before Revenue
Officer Phillips to give testimony and produce records as
demanded by the summonses. ECF No. 16. On April 12, 2017, via
first class mail, Respondent was served with the order
adopting the report and the order requiring him to appear
before the IRS agent and comply with the summonses. ECF No.
2, 2017, in response to Respondent's failure to comply
with the order requiring him to appear, testify, and produce
records, the United States filed an Application for Entry of
Order to Show Cause Re: Contempt, ECF No. 18
(“Application”), and served Respondent with the
Application, ECF No. 21.
7, 2017, the Court issued an Order to Show Cause Re:
Contempt. ECF No. 22. On August 2, 2017, the issued an
Amended Order to Show Cause Re Contempt that required the
Respondent to appear before the court and show cause of any
why he should not be held in contempt for his failure to
comply with the Court's April 12, 2017, order requiring
him to give testimony and produce records to the IRS. ECF 28.
On April 12, 2017, via first class mail, the Amended Order to
Show Cause Re Contempt was served on the Respondent. ECF No.
appeared at the January 11, 2018, show cause hearing. The
Respondent provided some records to the United States, but
did not provide all of the required records or any of the
required testimony. The parties agreed to continue the show
cause hearing until March 29, 2018, to allow Respondent
additional time to comply with the order requiring testimony
and production of records. Thereafter, the Court entered an
order continuing the matter until March 29, 2018. ECF No. 31.
That order required Respondent to appear in court for the
continued show cause hearing unless the Court vacated the
matter, and informed him that he would be subject to a $50
per day fine for noncompliance if he did not show cause for
his noncompliance at the March 29, 2018 hearing. ECF No. 31.
On January 12, 2018, via first class mail, the order
continuing the amended show cause re: contempt hearing was
served on Respondent. ECF No. 31-1.
did not appear at the hearing on March 29, 2018. ECF No. 33.
At that hearing, the United States informed the Court that
Respondent had not fully complied with the summonses.
district court has the inherent authority to enforce
compliance with its orders through a civil contempt
proceeding. Int'l Union, United Mine Workers of Am.
v. Bagwell, 512 U.S. 821, 827-28 (1994). Civil contempt
consists of a party's disobedience of “a specific
and definite court order by failure to take all reasonable
steps within the party's power to comply.” Reno
Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130 (9th
Cir. 2006). The contempt “need not be willful; however,
a person should not be held in contempt if his action appears
to be based on a good faith and reasonable interpretation of
the court's order.” Id. (internal
citations and quotation marks omitted). Substantial
compliance also is a defense to civil contempt-“[i]f a
violating party has taken all reasonable steps to comply with
the court order, technical or inadvertent violations of the
order will not support a finding of civil contempt.”
Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376,
1379 (9th Cir. 1986) (internal quotation marks and citation
omitted). Thus, the party alleging civil contempt must
demonstrate by clear and convincing evidence that (1) the
contemnor violated a court order, (2) the noncompliance was
more than technical or de minimis, and (3) the
contemnor's conduct was not the product of a good faith
or reasonable interpretation of the violated order. See
United States v. Bright, 596 F.3d 683, 694 (9th Cir.
2010); United States v. Ayres, 166 F.3d 991, 994
(9th Cir. 1999); see also Inst. of Cetacean
Research v. Sea Shepherd Conservation Society, 774 F.3d
935, 945 (9th Cir. 2014).
contempt is characterized by the court's desire to compel
obedience to a court order or to compensate the
contemnor's adversary for the injuries which result from
the noncompliance.” Bright, 596 F.3d at 695-96
(internal quotation marks omitted). “Given the remedial
purpose of the sanction, a finding of contempt must be
accompanied by conditions by which contempt may be purged,
spelled out in either the original order or the contempt
order.” Id. at 696 (internal citations
omitted). “Moreover, although the district court
generally must impose the minimum sanction necessary to
secure compliance, the district court retains discretion to
establish appropriate sanctions.” Id.
(internal citations omitted). The Court also has the
authority to issue a bench warrant if necessary to enforce
compliance. See United States v. Rylander, 460 U.S.
752, 761-62 (1983). However, coercive imprisonment must
eventually end, even if the respondent does not comply.
See Lambert v. Montana, 545 F.2d 87, 89 (9th Cir.
1976). Coercive confinement must end once the court
determines confinement achieved any possible coercive effect
and additional confinement would be punitive. Id.