1

1 CASE NUMBER: BD 300703

2 CASE NAME: COCHRAN VS. COCHRAN

3 DEPARTMENT NO. 6 HON. RANDALL F. PACHECO, JUDGE

4 LOS ANGELES, CALIF. APRIL 9, 2014

5 REPORTER: GLORIA J. HALL, CSR #4165

6 APPEARANCES: SEE TITLE PAGE

7 TIME: 8:30 A.M.

9 ---000---

10 THE COURT: ON NUMBER 12 COCHRAN AND COCHRAN, AN

11 ADD-ON CASE.

12 MR. CAPELOTO: GOOD MORNING, YOUR HONOR. J. SHELDON

13 CAPELOTO ON BEHALF OF THE PETITIONER.

14 MR. THOMPSON: GOOD MORNING, YOUR HONOR. JAMES

15 THOMPSON ON BEHALF OF THE RESPONDENT WHO IS ALSO PRESENT.

16 THE COURT: OKAY. PLEASE HAVE A SEAT, FOLKS.

17 WE PUT THIS OVER FOR SENTENCING, THE IDEA BEING

18 THAT WE ARE REALLY INTERESTED IN RESULTS BY MARY WILL HE AS

19 OPPOSED TO SENTENCING RETRIBUTION. I'LL START BY ASKING MR.

20 CAPELOTO WHAT THE STATUS IS.

21 MR. CAPELOTO: WELL, THE STATUS IS, YOUR HONOR, THERE

22 HAS BEEN SUBSTANTIAL COMPLIANCE WITH OUR DISCOVERY REQUEST.

23 AS OF 6:30 LAST NIGHT, THERE WERE A FEW DOCUMENTS AND

24 RESPONSES TO INTERROGATORIES THAT WERE EITHER INCOMPLETE OR

25 NOT PROVIDED. I WORKED WITH COUNSEL TO GET THOSE IN, AND HE

26 DID PROVIDE THOSE TO ME BY E-MAIL.

27 SO I CAN REPORT TO THE COURT TODAY THAT ALTHOUGH

28 THERE ARE STILL SOME LINGERING ISSUES ON SOME OF THE

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1 DISCOVERY REQUESTS, THERE HAS BEEN SUBSTANTIAL COMPLIANCE.

2 AND I KNOW THAT'S WHAT THE COURT WOULD WANT TO

3 HEAR. AND I DON'T THINK THE COURT IS INTERESTED IN KNOWING

4 THE SPECIFIC ISSUES THAT WE STILL HAVE REMAINING. WE'RE

5 GRATEFUL THAT WE WERE ABLE TO, AFTER 16 MONTHS, RECEIVE WHAT

6 WE ASKED FOR IN OCTOBER OF 2012, ALBEIT UNDER THESE

7 CIRCUMSTANCES, WHICH I THINK HAVE JUST BEEN HORRENDOUS.

8 THE COURT: AND FROM RESPONDENT'S POSITION?

9 MR. THOMPSON: JUST SO THERE IS NO CONFUSION, THE

10 SUBSTANTIAL PART OF THE COMPLIANCE WAS DONE AT THE LAST

11 HEARING. THERE WERE SOME LINGERING -- THERE WAS A COUPLE OF

12 ACCIDENTAL OMISSIONS AND SOME OTHER THINGS, A

13 MISUNDERSTANDING ON WHETHER A DOCUMENT THAT SAID OCTOBER 1ST

14 COVERED SEPTEMBER 30TH AND THINGS. AND WE CLEARED THOSE ALL

15 UP YESTERDAY.

16 BUT I DID NOT WANT THE COURT TO THINK THAT AT

17 6:00 O'CLOCK YESTERDAY WAS WHEN WE COMPLIED. WE HANDED IT IN

18 AT THE LAST HEARING. BUT YESTERDAY, UPON BEING PRESENTED

19 WITH SOME FURTHER QUESTIONS, WE ANSWERED THOSE AND FINISHED

20 IT. AND BUT I WOULD ACCEPT THE ASSESSMENT THAT AT THIS POINT

21 THERE IS SUBSTANTIAL COMPLIANCE OR EVEN FULL COMPLIANCE FROM

22 OUR VIEWPOINT.

23 MR. CAPELOTO: YOUR HONOR, I CAN'T DISAGREE WITH

24 COUNSEL. THE HEARING ON MARCH 12TH WAS INDICATED THAT THE

25 DISCOVERY WOULD BE PRODUCED WITHIN TWO WEEKS. AND YOUR HONOR

26 WAS, I THINK GRACIOUS ENOUGH TO CONTINUE THE SENTENCING

27 HEARING THREE WEEKS.

28 AND AS THE COURT MIGHT RECALL THAT WE DID

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1 RECEIVE THE DISCOVERY THE NIGHT BEFORE THE APRIL 2ND HEARING.

2 AND WE SUGGESTED TO THE COURT THAT WE CONTINUE THE HEARING,

3 ONCE AGAIN GIVE US SOME TIME TO LOOK AT THE DISCOVERY. SO

4 MOST OF THE DISCOVERY WAS PRODUCED ON APRIL 1ST, THE

5 AFTERNOON AND EVENING BEFORE THE SENTENCING HEARING WHICH WAS

6 AGAIN CONTINUED TO APRIL 2ND, BASICALLY AT THE REQUEST OF THE

7 RESPONDENT.

8 AND YOUR HONOR, IF I MAY SAY, TOO, I WOULD LIKE

9 THE COURT'S PERMISSION TO SAY A FEW WORDS BEFORE SENTENCING.

10 THE COURT: WELL, YES. BUT I THINK WE WILL PROCEED

11 TODAY THEN.

12 MR. CAPELOTO: YES.

13 THE COURT: AND AT LEAST WE CAN PROCEED ON THE BASIS

14 OF SUBSTANTIAL COMPLIANCE WHICH HOPEFULLY WILL PROVIDE A

15 BASIS FOR THE MERITS OF ACTUALLY COLLECTING THE MONEY, WHICH

16 IS THE UNDERLYING ISSUE ALL ALONG.

17 SO THEN MR. CAPELOTO, WHAT WOULD YOU LIKE --

18 FIRST, I KNOW THERE CAN'T BE ANY LEGAL CAUSE WHY SENTENCING

19 WOULDN'T BE IMPOSED TODAY BECAUSE THERE WASN'T LAST TIME, AND

20 WE CONTINUED IT. SO WHAT FROM PETITIONER'S POINT OF VIEW,

21 WHAT SHOULD THE SENTENCE BE? AND THEN OF COURSE WE'LL HEAR

22 FROM RESPONDENT.

23 MR. CAPELOTO: THANK YOU, YOUR HONOR. PETITIONER'S

24 POINT OF VIEW IS REALLY GUIDED BY THE HISTORY OF THIS PROCESS

25 WHERE THE ORDER TO SHOW CAUSE WHICH THE COURT KNOWS FROM ITS

26 FILES WAS FILED APPROXIMATELY A YEAR AGO. THIS IS AGAIN A

27 16-MONTH DISCOVERY DISPUTE WHICH RESULTED IN A FINDING AND

28 ORDER AFTER HEARING ON APRIL 30, 2013 REQUIRING THE

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1 RESPONDENT TO PRODUCE DISCOVERY, WHICH HE DID NOT DO, WHICH

2 LED TO THE ORDER TO SHOW CAUSE.

3 I AGAIN POINT OUT TO THE COURT THAT ON MARCH

4 12TH, THE RESPONDENT INDICATED THAT DISCOVERY WOULD BE

5 PRODUCED WITHIN TWO WEEKS. THAT DID NOT OCCUR. BUT EVEN

6 MORE IMPORTANTLY, THERE WAS A COMMENT MADE AT THAT HEARING,

7 AND I THINK THE RECORD WOULD REFLECT THIS, AND THESE WERE

8 COMMENTS BASICALLY, I THINK THROUGH COUNSEL, ALTHOUGH

9 RESPONDENT WAS PRESENT, THAT THERE HAD BEEN SOME CHANGE OF

10 HEART ON THE PART OF THE RESPONDENT BECAUSE OF A HEARING THAT

11 HE ATTENDED REGARDING HIS MOTHER'S ESTATE AND HOW HE HAD

12 CHANGED HIS OPINION ABOUT THE PETITIONER AND WAS NOW MORE

13 AGREEABLE TO COOPERATE WITH HER.

14 AND I THINK THAT REALLY, THE TELLING POINT FOR

15 THIS COURT TO CONSIDER IS WHEN DECIDING THE PROPER SENTENCE

16 BECAUSE WHAT IT REALLY POINTS TO IS KIND OF AN AGGRESSIVE

17 STONEWALLING THAT HAS BEEN TAKING PLACE FOR A LONG, A LONG

18 TIME THAT HAS COST MY CLIENT A SIGNIFICANT AMOUNT OF MONEY.

19 AND THEN ON MARCH 12TH, RESPONDENT SAYS "I HAVE

20 A CHANGE OF HEART. I ACTUALLY HAVE A BETTER FEELING ABOUT

21 TURNING THIS DISCOVERY OVER," ALMOST AS IF HE COULD CONTROL

22 NOT ONLY HOW HE WAS GOING TO HANDLE MATTERS WITH RESPECT TO

23 MY CLIENT, BUT HOW HE WAS GOING TO DEAL WITH ORDERS OF THIS

24 COURT AND THIS WHOLE PROCESS. AND THAT OCCURRED ON MARCH 12,

25 2014 AT THE FIRST SENTENCING HEARING.

26 NOW THERE HAVE BEEN SIX COURT APPEARANCES THAT

27 HAVE OCCURRED, INCLUDING THIS ONE, IN CONNECTION WITH THE

28 ORDER TO SHOW CAUSE. ONE WAS A REQUEST FOR CONTINUANCE OF

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1 THE ARRAIGNMENT BY COUNSEL. AND THEN WE'VE HAD THREE

2 SENTENCING HEARINGS IN TOTAL.

3 I PREPARED A DECLARATION FOR THE COURT THAT

4 ITEMIZES THE FEES AND COSTS THAT WERE INCURRED BY MY CLIENT

5 IN CONNECTION SOLELY WITH THE ORDER TO SHOW CAUSE AND

6 BILLINGS THROUGH FEBRUARY OF 2014 BECAUSE WE HAVE NOT YET

7 BILLED MY CLIENT FOR SERVICES FOR MARCH OR APRIL OF 2014.

8 THROUGH FEBRUARY, MY CLIENT INCURRED $8,162.18

9 IN ATTORNEY'S FEES AND COSTS. AND IT'S ESTIMATED THAT THERE

10 IS AN APPROXIMATELY $3400 IN TIME BILLED, NOT INCLUDING

11 TODAY'S HEARING. SO THE TOTAL TAB WILL BE SOMEWHERE AROUND

12 PROBABLY $12,000 IN FEES TO GET TO THIS POINT.

13 NEEDLESS TO SAY, MY CLIENT IS FRUSTRATED WITH

14 THE WHOLE PROCESS AND IS WONDERING WHETHER IF ADDITIONAL

15 DISCOVERY IS NECESSARY, FOR INSTANCE, PROPOUNDED TO

16 RESPONDENT WHETHER SHE WOULD HAVE TO GO THROUGH THE SAME

17 PROCESS AGAIN. THE DISCOVERY WE ASKED FOR IN 2012 IS

18 OBVIOUSLY STALE NOW BECAUSE ALL OF THE PASSAGE OF 16 MONTHS.

19 WE DON'T HAVE CURRENT INCOME INFORMATION OR

20 ACCOUNT INFORMATION. SO THE RESPONDENT SUCCESSFULLY

21 STONEWALLED AND DELAYED MATTERS SO THAT MY CLIENT WOUND UP

22 GETTING DISCOVERY THAT WAS BASICALLY 16 MONTHS STALE.

23 WITH THAT SAID, AND MY CLIENT IS FRUSTRATED WITH

24 THE PROCESS AND WANTED TO INDICATE THAT TO THE COURT. WE

25 THINK BECAUSE OF RESPONDENT'S ACTIONS, NOTWITHSTANDING THE

26 FACT THAT WE GOT SUBSTANTIAL COMPLIANCE WITH DISCOVERY ON

27 APRIL 1ST, 2014, WE THINK THAT UNDER CODE OF CIVIL PROCEDURE

28 SECTION 1218-A THAT THE RESPONDENT SHOULD RECEIVE THE MAXIMUM

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1 SENTENCE WHICH IS A FINE OF $1,000 PAYABLE TO THE COURT,

2 IMPRISONMENT FOR FIVE DAYS AND THAT THE COURT SHOULD ORDER

3 PAYMENT OF REASONABLE ATTORNEY'S FEES AND COSTS FOR THE WORK

4 THAT WAS INVOLVED AND THE PROCESS INVOLVED WITH THIS

5 PROTRACTED ORDER TO SHOW CAUSE MATTER.

6 AND AGAIN, I HAVE PROVIDED COUNSEL WITH THE

7 DECLARATION BY MYSELF ITEMIZING THE FEES AND COSTS INCURRED

8 THROUGH FEBRUARY. IF THE COURT WOULD LIKE TO SEE THAT, I

9 CERTAINLY HAVE THAT.

10 THE COURT: I THINK YOU SHOULD FILE IT, BUT I'LL

11 ACCEPT YOUR REPRESENTATION AS TO WHAT IT STATES.

12 MR. CAPELOTO: I WILL FILE IT.

13 THE COURT: MR. THOMPSON, WHAT WOULD YOU LIKE TO

14 STATE?

15 MR. THOMPSON: ORIGINALLY, YOUR HONOR, MY CLIENT

16 REACHED OUT UPON RECEIVING THE INITIAL DISCOVERY AND OFFERED

17 TO MEET, OFFERED TO TRY TO RESOLVE THIS, WITHOUT ANY SUCCESS.

18 HE WAS CONCERNED ALL ALONG THAT PETITIONER HAD ILL WILL

19 AGAINST HIM AND WANTED TO ACTUALLY CAUSE HIM HARM THROUGH HIS

20 ENDEAVORS AND SO FORTH. THAT WAS BASED UPON HIS EXPERIENCES

21 WITH THE MARRIAGE AND DIVORCE AND THINGS THAT THE COURT WOULD

22 NOT BE INTERESTED IN.

23 HE'S COMPLIED WITH THE DISCOVERY NOW. AND I

24 THINK COUNSEL'S ARGUMENTS CONFIRM SOME OF THAT ILL WILL. AND

25 EVEN AFTER COMPLIANCE, SHE STILL WANTS THE MAXIMUM PENALTIES

26 IN ALL WAYS, INCLUDING FIVE DAYS OF JAIL FOR SOMEONE WHO DOES

27 NOT BELONG IN JAIL WHO IS NOT A CRIMINAL.

28 I UNDERSTAND BEING IRRITATED ABOUT THE FEES AND

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1 COSTS AND THINGS. BUT TO AT THIS POINT AFTER THE COMPLIANCE

2 TO BE SEEKING FULLY FIVE DAYS OF JAIL DOES INDICATE, IN MY

3 MIND, AT LEAST, A CONFIRMATION OF THE INITIAL CONCERNS ABOUT

4 THE BITTERNESS IN THIS CASE.

5 COUNSEL DID SWITCH OVER AT SENTENCING TIME TO

6 SEEKING A, THAT MY CLIENT BE JAILED UNTIL COMPLIANCE WITH THE

7 DISCOVERY. IT SEEMS TO ME THAT NOW TO SAY THAT HE SHOULD

8 INSTEAD SERVE FIVE DAYS IN JAIL BECAUSE HE MADE THE ERROR OF

9 COMPLYING BEFORE SENTENCING IS PROBLEMATIC.

10 IF MY CLIENT HAD NOT COMPLIED SUBSTANTIALLY AND

11 FULLY, WE BELIEVE, TO THE DISCOVERY AT THIS POINT, MR.

12 CAPELOTO WOULD INSTEAD BE ASKING THAT HE BE SENTENCED UNTIL

13 HE COMPLIED WHICH AT THE TIME THAT WAS WHAT THE --

14 THE COURT: YES, BUT I INDICATED THAT THIS WAS NOT

15 PURSUED AS THAT FORM OF A CONTEMPT. SO --

16 MR. THOMPSON: YOU DID.

17 THE COURT: MR. CAPELOTO IS KIND OF STUCK WITH THE

18 SINGLE COUNT OF CONTEMPT AS OPPOSED TO A FINDING OF FAILURE

19 TO COMPLY AND A DEMAND OR A SENTENCE THAT RESPONDENT BE

20 INCARCERATED.

21 MR. THOMPSON: BUT THAT DIDN'T STOP HIM FROM FILING

22 ADDITIONAL POINTS AND AUTHORITIES THAT HE NOW WANTS

23 COMPENSATION FOR. SO WHEN HE'S TALKING ABOUT FEES, AT LEAST

24 WE SHOULD CONSIDER THAT HE'S DOING THINGS THAT THE COURT HAD

25 ALREADY INDICATED THAT THEY WERE NOT GOING TO DO.

26 BUT THE POINT OF IT WAS MY CLIENT DIDN'T COMPLY

27 IN ADVANCE. AND I THINK AS OF TODAY WE DID COMPLY. WE HAVE

28 MET THAT REQUEST BY THE COURT, LATER THAN OPTIMAL, BUT IT HAS
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1 BEEN DONE. SO THERE IS NOT A COMPLIANCE ISSUE TODAY. THERE

2 IS ONLY -- BUT THERE COULD BE A FUTURE COMPLIANCE ISSUE.

3 AND ONE OF THE THINGS THAT I WOULD THINK, AND

4 THERE WON'T BE BECAUSE HE'S GOING TO, IF THERE IS ADDITIONAL

5 DISCOVERY, HE'S GOING TO FOLLOW. BUT IT WOULD SEEM TO ME

6 WHAT IT INDICATES IS THAT THIS IS THE FIRST VIOLATION. HE'S

7 NOT HAD ANY OTHER CONTEMPTS. IT'S BEEN LONG IN COMING IN

8 TERMS OF GETTING IT IN. BUT HE DID COMPLY IN ADVANCE OF

9 SENTENCING. AND THIS IS THE FIRST INSTANCE OF ONE CONTEMPT.

10 I WOULD SAY TO GIVE THE MAXIMUM SENTENCE WOULD

11 BE OVERLY SEVERE, GIVEN IT'S HIS FIRST OFFENSE. IF WE WERE

12 HERE SIX MONTHS FROM NOW UNDER SIMILAR CIRCUMSTANCES, I WOULD

13 UNDERSTAND THAT ARGUMENT BETTER THAN I DO TODAY.

14 IT SEEMS TO ME THAT WHETHER IT'S A SUSPENDED

15 SENTENCE IN TERMS OF ACTUAL JAIL TIME OR SOME PUBLIC SERVICE

16 OR EVEN A SUSPENSION OF THAT, SOMETHING THAT PERHAPS IS STILL

17 HANGING OVER MY CLIENT'S HEAD, BUT TO ACTUALLY DO THE MAXIMUM

18 SENTENCE BASED UPON THIS FOR A FIRST OFFENSE WOULD SEEM TO BE

19 INAPPROPRIATE OR AT LEAST THAT'S CERTAINLY WHAT I WOULD HOPE

20 THE COURT WOULD CONSIDER.

21 THERE ARE CERTAIN MISREPRESENTATIONS MADE IN

22 TERMS OF MY CLIENT SAYING THAT HE HAS A CHANGE OF HEART IN

23 RELATION TO PETITIONER. HE WAS REFERRING SPECIFICALLY TO THAT

24 HE HAD SOME UNDERSTANDINGS ABOUT HER INTERFERENCE WITH HIS

25 MOTHER LEAVING FUNDS AND THAT THE BROTHER INDICATED AT A

26 HEARING SOMETHING -- NONE OF THIS IS RELEVANT TO THE COURT,

27 BUT THAT'S WHAT HE WAS SPEAKING WITH THAT SPECIFIC DAY HAVING

28 HAD A HEARING IN RELATION TO THAT, AND THAT HE HAD THOUGHT

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1 THAT SHE WAS BEHIND THINGS THAT HE HAD SOME REASON TO DOUBT.

2 IT WAS NOT ABOUT THE DISCOVERY OR ANYTHING LIKE

3 THAT. MY CLIENT HAS ALWAYS HAD THE INTENTION TO PAY HER WHEN

4 THE MONEY EMERGED. NOTHING IN HER DISCOVERY HAS INDICATED,

5 AND MR. CAPELOTO I THINK WILL DISAGREE ABOUT THIS, OVER ONE

6 BANK STATEMENT. BUT OUR POSITION IS STILL THAT THERE HAS

7 BEEN ALWAYS COMPLIANCE WITH THE UNDERLYING JUDGMENT IN THIS

8 CASE. AND THE DOCUMENTS PRODUCED SUPPORT THAT, IN OUR

9 OPINION.

10 SO THERE WASN'T THIS STONEWALLING. THERE WAS A

11 RELUCTANCE TO FOLLOW LONG STANDING DEALS THAT SHE COULD

12 INTERFERE WITH. WITH THAT SAID, IN RELATION TO THE

13 DECLARATION FILED, WHICH I DO NOT BELIEVE IS SUFFICIENT AS A

14 FEE DECLARATION, BUT IT IS UNCLEAR WHERE MR. CAPELOTO SAYS

15 PREPARATION OF OSC PLEADINGS, I DON'T KNOW, I CAN'T ARGUE

16 WHETHER OR NOT THAT INCLUDES THE UNDERLYING MOTIONS TO COMPEL

17 OR WHAT THAT IS BECAUSE IT DOESN'T SPECIFY. THOSE MOTIONS

18 ALREADY HAD A FEE ORDER MADE BY THIS COURT.

19 THE PREPARATION OF RELATED PLEADINGS, AGAIN

20 THOSE WERE MEMORANDUMS OF POINTS AND AUTHORITIES THAT I

21 BELIEVE THE COURT ALREADY HAD ADDRESSED PRIOR TO THAT THAT

22 WERE UNNECESSARY. IT STATES THINGS LIKE ON THE EVE OF HIS

23 THIRD -- I'M SORRY -- THE SENTENCE HEARING WAS CONDUCTED

24 THREE TIMES. IT HASN'T BEEN CONTINUED THREE TIMES. THIS IS

25 THE THIRD. IT'S ONLY BEEN CONTINUED TWICE IS MY

26 UNDERSTANDING. AND WE DIDN'T ASK FOR A CONTINUATION OF THE

27 ARRAIGNMENT.

28 THE INITIAL PLEADING WAS WE WERE HERE AND THE

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1 ARRAIGNMENT WASN'T DONE THE FIRST DAY, BUT THAT'S FAIRLY

2 CUSTOMARY FOR THAT. I WOULD REFUTE THE DEFENDING OF IT AS A

3 CONTINUANCE. THE ARRAIGNMENT WAS DONE ON A SECOND COURT

4 APPEARANCE IS MY MEMORY OF IT. I DON'T BELIEVE --

5 THE COURT: IT MAY BE CUSTOMARY, BUT IT IS A

6 CONTINUANCE.

7 MR. THOMPSON: I SUPPOSE IF YOU WANT TO CALL IT THAT,

8 WHICH THE COURT IS ENTITLED TO. I DON'T BELIEVE WE HAVE BEEN

9 HERE SIX TIMES ON THAT. BUT I GUESS WHAT I WOULD SAY IS IT

10 WOULD BE NICE TO HAVE -- THIS WAS HANDED TO ME, ALTHOUGH WE

11 HAD MUCH INTERACTION YESTERDAY. ONE OF THE INTERACTIONS WAS

12 TO NOT GIVE THIS TO ME A DAY IN ADVANCE.

13 I RECEIVED THIS WHEN I WALKED IN THIS MORNING.

14 I AM NOT PREPARED TO ADDRESS ALL THE FACTS IN HERE BECAUSE IT

15 WAS HANDED TO ME TODAY. I'D LIKE AN OPPORTUNITY IF THE COURT

16 IS GOING TO CONSIDER A FEE AWARD, WHICH I WOULD UNDERSTAND IS

17 AN OPTION, THAT I HAVE AN OPPORTUNITY TO RESPOND IN WRITING.

18 AND --

19 THE COURT: WELL, THIS IS A CONTEMPT. IT'S NOT A

20 MOTION FOR FEES UNDER FAMILY CODE 271 OR 2030 AND FOLLOWING

21 OR UNDER THE DISCOVERY PROVISIONS, EVEN THOUGH THE CONTEMPT

22 IS FOR FAILURE TO COMPLETE DISCOVERY. SO I DON'T THINK THAT

23 THE REQUIREMENTS OF A KEECH DECLARATION ARE AT ISSUE WITH

24 THIS TYPE OF FEE AWARD.

25 MR. THOMPSON: BUT GIVEN THAT THERE ARE SOME FACTUAL,

26 ON THEIR FACE INACCURACIES ON THIS, ME HAVING AN OPPORTUNITY

27 TO RESPOND WHERE THE COURT COULD THEN TAKE IT UNDER

28 SUBMISSION AND ISSUE AN ORDER IN TERMS OF WHAT THE FEE AMOUNT

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1 WOULD BE DOES NOT SEEM LIKE AN UNREASONABLE REQUEST. AND

2 WHEN I SAY ON THE FACE, I CAN GIVE THE COURT AN EXAMPLE.

3 AGAIN WHERE IT SAYS THE SENTENCING HEARING WAS

4 CONTINUED THREE TIMES TO ALLOW THE RESPONDENT TO PRODUCE

5 DISCOVERY RESPONSES, AND THEN IN THE NEXT PARAGRAPH SAYS ON

6 THE EVE OF HIS THIRD SENTENCING HEARING WHICH IS TODAY,

7 THAT'S NOT, THAT WOULD MEAN THAT IT WAS CONTINUED TWICE, NOT

8 THREE TIMES.

9 THAT'S JUST AN EXAMPLE. BUT TO SHOW THAT THERE

10 ARE SOME MISSTATEMENTS IN HERE, THERE ARE MORE SUBSTANTIVE

11 ONES THAN THAT. I DON'T THINK THAT ANYONE WOULD BE

12 PREJUDICED BY ME SUBMITTING A TWO-PAGE DECLARATION.

13 THE COURT: EXCEPT, ADDITIONAL FEES BY BOTH PARTIES --

14 MR. THOMPSON: WELL, I AM NOT SUGGESTING WE COME BACK

15 AGAIN.

16 THE COURT: ACTUALLY, MR. CAPELOTO, WOULD YOU PROVIDE

17 THAT DECLARATION TO OUR BAILIFF?

18 MR. CAPELOTO: YES, YOUR HONOR.

19 MR. THOMPSON: I WOULD SUGGEST THE ONLY ADDITIONAL

20 COST WOULD BE ANOTHER PART OF MY CLIENT PAYING FOR ME TO DO A

21 SHORT DECLARATION. THE COURT WOULD THEN ISSUE A, WE WOULD

22 SUBMIT TODAY APART FROM THAT AND THE COURT COULD ISSUE WHAT

23 HE THOUGHT THE APPROPRIATE FEES WERE.

24 THE COURT: OKAY.

25 MR. CAPELOTO, WHAT IS THE PREPARATION OF THE OSC

26 PLEADINGS?

27 MR. CAPELOTO: THE PREPARATION OF THE OSC PLEADINGS

28 ESSENTIALLY INVOLVE THE DRAFTING OF THE OSC PAPERS

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1 THEMSELVES, THE ACCOMPANYING DECLARATIONS, THE REQUEST FOR

2 JUDICIAL NOTICE THAT WAS PREPARED.

3 THE COURT: AND THIS WOULD BE LESS THAN TEN HOURS?

4 MR. CAPELOTO: IT WOULD BE LESS THAN TEN HOURS, THAT'S

5 CORRECT.

6 THE COURT: ANYTHING FURTHER, MR. THOMPSON, BEFORE WE

7 DO THE SENTENCING?

8 MR. THOMPSON: NO, YOUR HONOR.

9 MR. CAPELOTO: YOUR HONOR, MAY I MAKE ONE COMMENT?

10 THE COURT: OKAY, BUT MR. THOMPSON IS GOING TO GET A

11 CHANCE TO RESPOND TO IT.

12 MR. CAPELOTO: I UNDERSTOOD THE COURT AND MR. THOMPSON

13 TODAY RAISED THE ISSUE OF WHAT THE ULTIMATE GOAL IS HERE AND

14 THAT IS MY CLIENT WANTED TO DISCOVER WHETHER MR. COCHRAN HAS

15 EARNED MORE THAN $3,000 GROSS IN ANY ONE MONTH SINCE THE

16 ENTRY OF THE JUDGMENT IN 1999.

17 AND WE DIDN'T ASK FOR BANK STATEMENTS FROM 1999

18 FORWARD. AT LEAST TWO OF THE STATEMENTS THAT WERE PRODUCED

19 WHICH COINCIDENTALLY WERE PRODUCED YESTERDAY REFLECT THAT IN

20 ONE MONTH, HE DEPOSITED MORE THAN $10,000 INTO HIS PERSONAL

21 ACCOUNT. AND IN ANOTHER MONTH, HE DEPOSITED MORE THAN

22 $13,000 INTO HIS PERSONAL ACCOUNT.

23 SO WE HAVE REASON TO BELIEVE THAT MR. COCHRAN'S

24 COMMENTS THAT HE'S NEVER SINCE 1999 EARNED MORE THAN $3,000

25 GROSS IN ANY GIVEN MONTH IS FALSE. AND WE INTEND TO SUBPOENA

26 ALL OF HIS BANK STATEMENTS FROM THE BANK WHERE WE KNOW WE CAN

27 GET THEM WITHOUT HAVING TO GO THROUGH THIS PROCESS AND ALL OF

28 THE EXPENSE TO FIND OUT HOW MANY TIMES HE MAY BE IN CONTEMPT

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1 OF THE ACTUAL JUDGMENT.

2 SO THIS HAS YIELDED FRUIT. THERE IS VALUE, I

3 THINK, TO WHAT WE ULTIMATELY RECEIVED IN DISCOVERY. AND I

4 DISPUTE THE REPRESENTATION BY COUNSEL THAT MR. COCHRAN HAS

5 BEEN FORTHRIGHT AND HONEST ABOUT WHAT HE HAS EARNED SINCE

6 1999.

7 MR. THOMPSON: AND YOUR HONOR, THAT WAS, MR. CAPELOTO

8 DECIDED IN THE LAST PARAGRAPH OF WHAT IS SUPPOSED TO BE A FEE

9 DECLARATION TO TRY TO INTRODUCE EVIDENCE TO MAKE MY CLIENT

10 LOOK DISHONEST. AND THAT WAS ONE OF THE REASONS I WANTED TO

11 RESPOND IN WRITING BECAUSE THIS IS NOT ACCURATE IN TERMS OF

12 MONIES THAT WENT INTO HIS ACCOUNT THAT THEN IMMEDIATELY WENT

13 OUT OF THE ACCOUNT INTO THE BUSINESS WHERE IT WAS NOT HIS

14 MONEY. IT WAS SIMPLY DEPOSITING A CHECK.

15 I UNDERSTAND WHY PETITIONER'S COUNSEL WOULDN'T

16 NECESSARILY KNOW WHAT IT WAS. IT MIGHT HAVE A FALSE

17 IMPRESSION OF IT. AND THAT'S WHAT I WANTED, ONE OF THE

18 THINGS I WANTED TO STRAIGHTEN OUT. THERE WILL BE NO

19 SUCCESSFUL CONTEMPT BASED UPON THIS.

20 THE RECORDS WILL SHOW WHERE THAT MONEY WENT AND

21 THAT IT WAS NOT INCOME. AND IF IT WAS INCOME, HE WOULD HAVE

22 FILED TAX RETURNS ON THAT. IT WAS NOT INCOME. IT WENT

23 STRAIGHT INTO ANOTHER BUSINESS ACCOUNT AND IT WAS INVESTOR

24 MONEY. IT WAS NOT HIS MONEY TO DO ANYTHING WITH. AND THAT

25 WILL BE ABLE TO BE EXPLAINED.

26 THAT'S WHAT HAPPENS WHEN YOU TRY TO SQUEEZE THAT

27 INFORMATION INTO A FINAL PARAGRAPH WHERE IT DOES NOT BELONG.

28 THE COURT: ANYTHING FURTHER?

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1 MR. THOMPSON: NO, YOUR HONOR.

2 THE COURT: ALL RIGHT. I AM NOT GOING TO DO ACTUAL

3 JAIL TIME, BUT I AM GOING TO DO COMMUNITY SERVICE TIME. IT'S

4 TRUE THAT IT'S VERY SELDOM THAT WE HAVE DISCOVERY ISSUES

5 PURSUED BY CONTEMPT, BUT THIS WAS A TIME WHEN IT WAS

6 APPROPRIATE. THE JUDGMENT IS NOT SOMETHING THAT MR. COCHRAN

7 WOULD BE IN A POSITION TO COMPLAIN ABOUT.

8 THE PROVISION THAT THE PAYMENTS BE ONLY IF THE

9 INCOME WAS MORE THAN $3,000, THAT THEY BE SUBSTANTIAL IF IT

10 WAS MORE THAN $3,000, BUT ONLY IF IT WAS MORE THAN $3,000 WAS

11 REALLY A PROVISION THAT ALLOWED THE ABILITY TO TAKE CARE OF

12 THE NECESSITIES WITHOUT HAVING TO WORRY ABOUT BEING DONE FOR

13 A DEBT. BUT IT DID CARRY WITH IT THE NECESSITY TO BE

14 RESPONSIVE TO CONCERNS ABOUT WHETHER THERE WAS MORE THAN

15 $3,000.

16 ANOTHER FACTOR THAT MADE THE JUDGMENT

17 ADVANTAGEOUS TO MR. COCHRAN AND PUT A CERTAIN URGENCY INTO

18 PETITIONER'S EFFORTS TO COLLECT IT IS THE PROVISION THAT IT

19 DOESN'T ACQUIRE INTEREST. SO IT'S NOT LIKE PETITIONER COULD

20 SAY "WELL, I AM NOT BEING PAID, BUT AT LEAST I AM GETTING 10

21 PERCENT ON MY MONEY WHEN I ULTIMATELY DO COLLECT."

22 NO, IT WAS JUST A PURE DELAY FOR HER OF MONEY

23 THAT I AM SURE WOULD BE USEFUL TO HER. SO THE PROVISIONS OF

24 THE JUDGMENT ARE NOT ONEROUS, WERE NOT SOMETHING THAT SHOULD

25 HAVE BEEN RESCINDED. AND OF COURSE WHETHER THEY ARE

26 RESCINDED OR NOT DOESN'T MATTER. THEY WERE THE PROVISIONS OF

27 THE JUDGMENT. AND THERE WAS COMPLETE STONEWALLING UP UNTIL

28 THE ACTUAL CONTEMPT.

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1 SO THIS IS A CASE WHERE THE AVAILABILITY OF THE

2 CONTEMPT REMEDY FOR DISCOVERY VIOLATIONS TURNS OUT TO BE

3 APPROPRIATE. I DON'T KNOW THAT JAIL TIME IS EVEN GOING TO

4 SERVE RETRIBUTION CONCERNS APPROPRIATELY. COMMUNITY SERVICE

5 IS ALSO A DEDICATION OF A PERSON'S PERSONAL TIME TO THE

6 DEMANDS OF A SENTENCE AND ACTUALLY ACCOMPLISHES SOMETHING FOR

7 THE COMMUNITY.

8 BUT I AM GOING TO IMPOSE FIVE DAYS IN JAIL, STAY

9 THAT PENDING COMPLETION OF 60 HOURS OF COMMUNITY SERVICE TO

10 BE ARRANGED THROUGH THE PROBATION OFFICE. THE COMMUNITY

11 SERVICE WHEN IT OCCURS WILL BE CREDITED HOUR PER HOUR AGAINST

12 THE JAIL TIME, BUT THAT WOULD LEAVE AN ADDITIONAL 60 DAYS OF,

13 60 HOURS, RATHER, OF POTENTIAL JAIL TIME AVAILABLE FOR THE

14 OTHER, WELL, FIRST TO ENFORCE THE ACTUAL SERVICE OF THE

15 COMMUNITY SERVICE AND SECOND, THE ORDER STILL REMAINS TO

16 FULLY COMPLY WITH DISCOVERY, THE CURRENT DISCOVERY.

17 I AM NOT GOING TO MAKE ADDITIONAL DISCOVERY

18 AUTOMATICALLY ENFORCEABLE BY, IN EFFECT, A PROBATION

19 VIOLATION HEARING. BUT THE CURRENT DISCOVERY ORDERS FULL

20 COMPLIANCE WITH THAT IS A CONDITION OF THE PROBATION.

21 PAYMENT OF THE MONIES NECESSARY IS A CONDITION

22 OF PROBATION. AND THIS IS AN IMPORTANT CONDITION BECAUSE

23 IT'S UNCLEAR WHETHER PAYMENT OF THIS EQUALIZATION PAYMENT

24 WOULD BE SUBJECT TO CONTEMPT ANYWAY, SUBJECT TO A NEW

25 CONTEMPT. BUT I THINK IT CAN PROPERLY BE AN EXISTING FINDING

26 OF CONTEMPT CARRYING WITH IT ONLY WHAT'S LEFT AFTER THE

27 COMMUNITY SERVICE IS SATISFIED AS A POTENTIAL SENTENCE.

28 SO IT'S COURT SUPERVISION WITH THE REMAINING,

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1 WELL, WITH 120 HOURS OF JAIL TIME SUSPENDED PENDING

2 COMPLETION OF 60 HOURS OF COMMUNITY SERVICE WITH HOUR FOR

3 HOUR CREDIT FOR THE COMMUNITY SERVICE TO BE PROVIDED. IN THE

4 EVENT IT'S NOT ALL COMPLETED, WHATEVER REMAINS OF THE JAIL

5 SENTENCE CAN BE IMPOSED.

6 THE COMMUNITY SERVICE HAS TO BE COMPLETED NO

7 LATER THAN JULY 31ST. THE ATTORNEY FEES ARE -- I ACCEPT MR.

8 CAPELOTO'S REPRESENTATION THAT THE FEES WERE INCURRED FOR THE

9 PURPOSE OF THESE PROCEEDINGS. THE $3400 IN ADDITIONAL FEES

10 FOR THE HEARING THAT HAVE NOT BEEN BILLED YET IS REASONABLE.

11 SO THE TOTAL ATTORNEY FEES ARE $11,562. THAT'S

12 FEES AND COSTS. THAT'S ALSO PAYABLE ON OR BEFORE JULY 31ST.

13 IF IT'S NOT PAID, THEN THIS ONE DOES EARN INTEREST AT 10

14 PERCENT. AND I AM GOING TO IMPOSE A FINE OF $500 PAYABLE TO

15 US, THE COURT SYSTEM, ON OR BEFORE JULY 31ST.

16 AND AS PART OF THE $3400 IN FEES, I'LL ASK MR.

17 CAPELOTO TO PREPARE THE ORDER FOR THE SENTENCING.

18 MR. THOMPSON: YOUR HONOR, I WAS A BIT CONFUSED BY

19 YOUR STATEMENT ABOUT TALKING ABOUT COMPLIANCE WITH THE

20 JUDGMENT AS PART OF THE PROBATION. I WAS NOT SURE WHAT YOU

21 WERE TALKING ABOUT.

22 THE COURT: COMPLIANCE WITH THE PAYMENT OF A

23 PERCENTAGE OF ANY MONIES RECEIVED OVER $3,000 A MONTH.

24 MR. THOMPSON: BUT YOU ARE NOT DETERMINING THAT ANY

25 AMOUNT IS DUE?

26 THE COURT: RIGHT. IT WILL BE, IN EFFECT, A PROBATION

27 VIOLATION PROCEEDING THAT PETITIONER WOULD BE IN A POSITION

28 TO BRING. AT LEAST THAT'S WHAT YOU'D CALL IT IN CRIMINAL

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1 COURT.

2 MR. THOMPSON: AND HOW LONG IS THAT OUTSTANDING FOR?

3 THE COURT: THAT'S A GOOD QUESTION. THAT'S

4 OUTSTANDING FOR THREE YEARS. SO WE HAVE THE SENTENCE

5 SUSPENDED FOR THREE YEARS ON CONDITION OF 60 HOURS OF

6 COMMUNITY SERVICE, COMPLIANCE WITH THE CURRENT DISCOVERY

7 ORDERS, PAYMENT OF THE $11,562 IN ATTORNEY FEES BY JULY 31ST,

8 AND PAYMENT OF A $500 FINE BY JULY 31ST.

9 THE CLERK: THE FIVE DAYS IS SUSPENDED?

10 THE COURT: YES. THAT GIVES US THREE YEARS TO ENFORCE

11 ALL THE VARIOUS PROVISIONS. BUT WE ARE SETTING A DEADLINE

12 FOR COMPLETION OF COMMUNITY SERVICE.

13 MR. THOMPSON: THEN YOUR HONOR, ONE QUESTION I WOULD

14 HAVE BECAUSE YOU HAVE INCLUDED COMPLETE COMPLIANCE WITH THE

15 DISCOVERY WHICH IN OUR CONVERSATION, COUNSELS' CONVERSATIONS

16 YESTERDAY, FOR EXAMPLE, WE HAD AN ISSUE ABOUT WHETHER OR NOT

17 UNDER SERVICES RENDERED THAT IT WOULD INCLUDE RETAIL SALES.

18 I THINK THERE IS ARGUABLY A GOOD FAITH ARGUMENT ON BOTH

19 COUNSELS' SIDE --

20 THE COURT: IF WE ARE, WHAT IT WILL BE, IN EFFECT, IS

21 A PROBATION VIOLATION HEARING. I WILL HEAR THE ARGUMENTS

22 BACK AND FORTH ON THOSE. I CAN'T PRE-DECIDE THAT.

23 MR. THOMPSON: NO, I KNOW YOU CAN'T. BUT WHAT I AM

24 SAYING IS I DON'T WANT MY CLIENT TO BE -- BECAUSE COUNSEL IS

25 -- THAT SEEMS LIKE A GOOD FAITH MOTION TO COMPEL FURTHERANCES

26 OR THINGS, BUT TO TREAT THAT AS A PROBATION VIOLATION?

27 THE COURT: IF IT'S NOT A VIOLATION, IT WON'T BE

28 TREATED AS A VIOLATION. SO IF THERE IS -- I AM JUST NOT

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1 GOING TO PREDETERMINE THAT. IF THERE IS SOME LEGITIMATE

2 DISPUTE, THEN MR. COCHRAN WOULD BE WELL ADVISED TO BE ON THE

3 CAREFUL SIDE OF THAT LEGITIMATE DISPUTE. BUT NEVERTHELESS,

4 THE ARGUMENT WOULD BE AVAILABLE THAT THERE IS NO VIOLATION OF

5 PROBATION BECAUSE OF THIS, THAT OR THE OTHER THING. SO WE'LL

6 CROSS THAT BRIDGE WHEN WE COME TO IT.

7 MR. THOMPSON: OKAY.

8 MR. CAPELOTO: THANK YOU, YOUR HONOR.

9 THE COURT: THANK YOU.

10 (PROCEEDINGS CONCLUDED)

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