Wining California contempt motion and brief. Use it against a contemptnor to put them in jail or force their hand in litigation. Lots of work went into this one!
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JEFFREY S. NEWTON 5446 Hermitage Valley Village, CA 91607 (248) 694-1400 [email protected]Plaintiff In Pro Per SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JEFFREY S. NEWTON, Plaintiff, vs. THOMAS PATRICK FREYDL, ind. and d/b/a FREYDL & ASSOCIATES, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 30-2011-00469301 EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT: MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFFREY S. NEWTON Date: July 9, 2014 Time: 8:30 Department: 14 Plaintiff/Judgment Creditor Jeffrey S. Newton ("Newton") hereby applies ex parte for an order directing Defendant/Judgment Debtor Thomas Patrick Freydl ("Freydl") to show cause why he should not be held in contempt of this Court, pursuant to section 1209(a)(5) of the California Code of Civil Procedure, for Freydl's willful defiance of this Court's June 23, 2011 Order of Permanent Injunction (the "Assignment Order"). 1
Transcript
JEFFREY S. NEWTON5446 HermitageValley Village, CA 91607(248) [email protected] In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
JEFFREY S. NEWTON,Plaintiff,vs.THOMAS PATRICK FREYDL, ind. and d/b/a FREYDL & ASSOCIATES,Defendants.
)))))))))))))
CASE NO. 30-2011-00469301EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT: MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JEFFREY S. NEWTON
Date: July 9, 2014Time: 8:30Department: 14
Plaintiff/Judgment Creditor Jeffrey S. Newton ("Newton") hereby
applies ex parte for an order directing Defendant/Judgment Debtor Thomas
Patrick Freydl ("Freydl") to show cause why he should not be held in
contempt of this Court, pursuant to section 1209(a)(5) of the California Code
of Civil Procedure, for Freydl's willful defiance of this Court's June 23, 2011
Order of Permanent Injunction (the "Assignment Order").
This application is made on the grounds that, in violation of the Order,
Freydl -- who stole Newton’s life savings -- has continued to openly flaunt the
authority of this Court, violating the Assignment Order issued by this Court
on at least seventeen (17) occasions, including the period from June 23,
2011 9-20-12 to 4-8-13 until the present, when Freydl received, cashed and
1
failed to assign at least seventeen (17) checks totaling $24,750.00 from
Richard Gamarra/South Bay Studios d/b/a Focus on Cars. Freydl’s
negotiation, without assignment to Newton, of each of these checks is
punishable as a separate act of contempt by a $1,000.00 fine and five (5)
days of incarceration, for a total of eighty five (85) days in jail. Because
there are two lengthy gaps in checks, (1) between June 23, 2011 and
September 20, 2012 (over 15 months) and (2) between September 20, 2012
and the present (over 21 months), there is a high degree of likelihood that
there are more checks – and thus more contemptible conduct by Freydl -
that Newton does not yet know about.
Gamarra is guilty of contempt for conspiring with Freydl and aiding and
abetting each and every single act of Freydl’s contempt. Newton has filled a
separate ex parte application and order to show cause for him concurrently
heretin.
Freydl has willfully treated this Court's authority with such callous
disregard that he should be criminally sanctioned by fine and imprisonment
under Code of Civil Procedure §1218. Freydl has been notified of this
Application by telephone message, email and/or facsimile transmission
pursuant to Law and Policy Manual ¶261. Declaration of Jeffrey S. Newton at
X.
This Application is based on this Application itself, the concurrently
filed Declaration of Jeffrey S. Newton; the exhibits submitted therewith; the
2
records on file in this case; and such further evidence and argument as may
be properly presented at the hearing of this Application.
Dated: July 4, 2014 Respectfully submitted,
__________________________Jeffrey S. NewtonPlaintiff/Judgment Creditor
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Plaintiff/Assignee/Judgment Creditor Jeffrey S. Newton (“Newton”) asks
this Court to issue an Order to Show Cause:
1. Why Defendant/Judgment Debtor Thomas Patrick Freydl
(“Freydl”) should not be held in contempt and compelled to immediately turn
over to Newton cash1 funds in at least twenty four thousand, seven hundred
fifty dollars ($24,750.00)2 that was wrongfully paid by Richard
Gamarra/Focus on Cars d/b/a South Bay Studios to Freydl, all in violation this
Honorable Court’s Assignment Order entered on June 23, 2011 pursuant to
CCP §708.510 (“Assignment Order”, attached hereto and labeled as Exhibit
1);
1 Newton will not accept anything other than cash from Freydl. He has a lengthy history of writing nonsufficient funds and account closed checks (including to Newton), check kiting, and the defrauding of banks. He was disbarred from the practice of law for such activity.2 Plus costs; itemization to be provided at the Hearing hereto.
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2. Why Freydl should not be held in contempt, and compelled to
immediately obey the Assignment Order and perfect the assignment of all
right to payment from Richard Gamarra and his corporations,3 commencing
June 23, 2011 pursuant to and as fully set forth in the Assignment Order (i.e,
back payment), disclose to the Court and Newton the full amount of such
payments, and immediately pay same to Newton;4
3. Why Assignment Order Obligors Ricardo (“Richard”) Gamarra
and/or his corporation, Focus on Cars d/b/a South Bay Studios,5 should not be
held in contempt, and compelled to immediately pay Newton the amounts
set forth above that were wrongfully paid to Freydl; and
4. Why Freydl and Gamarra should not immediately be held in
contempt of Court absent immediate compliance with the Court’s Order to
Compel and payment of the above amounts to Newton, and both jailed and
held until payment in full to Newton is accomplished.
So that there is no doubt in the Court's mind that the contempt is plain,
willful, calculated and conspiratorial, photocopies of exemplar checks, as well
3 Richard Gamarra and/or Focus on Cars; Richard Gamarra and/or South Bay Studios, and Richard Gamarra and California Tequila.4 There is a fifteen (15) month gap between the date of the Assignment Order (June 23, 2011) and the first recovered check to Freydl, as fully discussed, infra. It is highly doubtful that Gamarra or Focus on Cars d/b/a South Bay Studios did not pay Freydl anything during this time period, given the lengthy history of such payments (decades). Newton therefore requests full disclosure of all such payments, which will advance judicial economy by not requiring a creditor’s examination and another motion to compel.5 The Assignment Order is crystal clear that, for each of Gamarra’s corporations, Gamarra is personally liable to Newton for payment to Freydl, discussed, infra.
4
as a spreadsheet of the check activity at issue, are attached hereto and
labeled Exhibits 3 and 2, respectively. These checks total TWENTY FOUR
THOUSAND, SEVEN HUNDRED AND FIFTY DOLLARS ($24,750.00). Freydl and
Gamarra’s serial contempt requires the immediate compelling of payment of
all monies paid by the Assignment Order Obligors to Freydl since Jude 23,
2011 to Newton and, absent immediate compliance, upon noticed motion,
the imposition of contempt, and an Order to Show Cause should issue.
II. FACTS
On June 23, 2011, this Honorable Court entered its Assignment Order,
which assigned all payments and right to payments from Obligors Richard
Gamarra, Focus on Cars and/or Richard Gamarra, South Bay Studios and/or
Richard Gamarra, and California Tequila and/or Richard Gamarra, to Newton.
Exhibit 1 hereto.6
Predictably, Newton has not received any payments from Gamarra,
from any of his corporations, or from Freydl in the ensuing nearly three (3)
years.
Newton, a lifelong Michigan resident, temporarily relocated to Southern
California to attempt collection efforts, including enforcement of the
Assignment Order. Pursuant to that quest, he Subpoenaed records from the
bank accounts of Focus on Cars and South Bay Studios. Currently, Newton
has amassed irrefutable evidence in the form of cashed checks from Focus
6 The relevant portion of the Assignment Order regarding Gamarra and his corporations are set forth at Sections B and C, discussed, infra.
5
on Cars d/b/a South Bay Studios7 to Freydl from Gateway Business Bank8 in
the amount of twenty four thousand, seven hundred and fifty dollars
($24,750.00), all written and cashed subsequent to the June 23, 2011 entry
of the Assignment Order and, therefore, all in violation of said Order.
For the following reasons, Newton respectfully requests that this
Honorable Court compel the immediate payment of all monies paid by the
Assignment Order Obligors to Freydl since June 23, 2011, including, but not
limited to, the TWENTY FOUR THOUSAND, SEVEN HUNDRED AND FIFTY
DOLLARS ($24,750.00) evidenced in the attached check exemplars, to
Newton. Newton respectfully requests that the Court require immediate full
payment, so that he can file a Motion for Contempt forthwith absent full
compliance with the Court’s Order to Compel.9
III. ARGUMENT
A. The Assignment Order Was Properly Entered and Served.
The Assignment Order was properly entered by the Honorable Steven
Peck on June 23, 2011, after full due process and Notice to Freydl, as well as
a full Hearing, at which Freydl was represented by counsel. The Assignment
Order was subsequently personally served10 on Freydl, both a Focus on Cars 7 Focus on Cars is now known as Thunder Studios.8 Gateway Business Bank was purchased by Banc of California.9 Newton is seeking costs. One of those costs is half of Newton’s rent, which is double in LA what it is in Detroit, Michigan. Accordingly, Newton desires to mitigate the cost exposure to Gamarra and Freydl, and conclude this matter quickly.10 Freydl was served by substitute service, after Gamarra intentionally interfered with personal service by instructing his guard, James, to block it. Gamarra told Newton’s process server to “hit the road, Jack,” but was
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and his residence. It was also personally served on Gamarra at Focus on
Cars. Accordingly, the Order is fully enforceable.11
B. The Assignment Order’s Operative Language.
1. The Relevant Language Of The Assignment Order.
The Assignment Order’s relevant commands provide, as follows, where
the Judgment Creditor’s request is followed by the Court’s Order:
B. An order instructing the judgment debtors and any successors in interest, including but not limited to Freydl & Associates, LTD., Inc. as well as all obligors of the judgment debtors to directly assign the judgment debtors' interest in any and all consulting, professional, commission, partnership, profits, benefits, or other payments of any nature either owed now or owed in the future as well as funds in Bank of America Bank account Number 2363871631 to the judgment creditor:
Granted in part; The court directs the judgment debtors, Thomas Patrick Freydel and Freydel and Associates (only), to assign all right to payments from: (1) Focus on Cars, Inc. and/or Ricardo (Richard) Gamarra; (2) South Bay (Base) Studios, a Division of Focus on Cars, Inc., and/or Ricardo (Richard) Gamarra; and (3) California Tequila and/or Ricardo (Richard) Gamarra to the judgment creditor. This order will become effective on the obligors when served on them. (CCP 708.540) The court further assigns any right to payment from Freydl & Associates, LTD., Inc., a corporation, including but not limited to payments from funds in the identified Bank of America bank account, to or on behalf of the judgment debtor, Thomas Patrick Freydel and Freydel and Associates, to the judgment creditor….. Id.;
personally served anyway. See Exhibits 4 and 5 hereto. Gamarra and Freydl have a lengthy history of obstructing justice against Newton, including falsifying that Freydl had been booted out of Focus on Cars, delaying Newton’s collection efforts.11 The Amount of The Judgment herein is nearly FOUR HUNDRED FIFTY THOUSAND DOLLARS ($450,000.00).
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C. An order restraining the judgment debtors and the obligors of the judgment debtor and any person or entity acting in concert with the judgment debtors from encumbering, assigning, disposing, or spending any consulting, professional, commission, partnership, profits, benefits, or other fees or payments as well as funds in the Bank of America account from paying these funds to or by the judgment debtors:
Granted; The request for a restraining order pursuant to CCP 708.520 is granted against the judgment debtor, Thomas Patrick Freydel and Freydel and Associates (only), as to all rights to payments which are subject to the assignment order. The judgment creditor to comply with the service and notice requirements of CCP 708.520.
Accordingly, the Assignment Order provides:
1. That Freydl was Ordered to assign the various rights to payment to Newton, both from Gamarra and his corporations and from the identified Bank of America account;
2. That Gamarra was personally Ordered to pay Newton instead of Freydl, whether the payment was from him personally to Freydl or from one of his corporations to Freydl, thus Gamarra is personally liable to Newton for any payments made by any of his corporations to Freydl; and
3. That Freydl was Ordered not to alienate, extinguish, transfer, spend, etc., any funds that were wrongfully paid to him. Id.
Newton will address each of these obligations in seriatim.
2. Freydl’s Liability To Newton Of Payment From Gamarra And His Corporations To Freydl.
Freydl’s liability to Newton regarding payment from Gamarra or any of
his corporations to Freydl under the Assignment Order is straightforward and
clear cut. All money that Freydl received from Gamarra or any of his named
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corporations since June 23, 2011 belongs to Newton, and was supposed to be
assigned --- and paid --- to him. Clearly, and as proven by the exemplar
checks (Exhibit 3 hereto), Freydl did not accomplish the assignment, and is
therefore in violation of the Assignment Order.
Newton respectfully requests that this Honorable Court Order Freydl to
pay all of these funds to Newton, forthwith, in cash only, after making full
disclosure to the Court and to Newton – complete with full written evidence –
of all such funds.12 Absent Freydl’s immediate compliance with the Court’s
Order to Compel, Newton will file a Show Cause Order requesting that Freydl
be incarcerated until full payment is accomplished.
3. Pursuant To ¶C Of The Assignment Order, Commencing On June 23, 2011, Freydl Was Restrained From Spending (1) Any Of The Money He Received From Gamarra and/or Any Of His Corporations, And (2) The Funds In The Identified Bank Of America Account.
Pursuant to ¶C of The Assignment Order, commencing on June 23,
2011, Freydl was restrained from spending: (1) any of the money he received
from Gamarra and/or any of his corporations and (2) the funds in the
identified Bank of America account. Given Freydl’s past conduct towards
Newton, it is a virtual certainty that he spent all of each of these monies.
12 Because Freydl was already ordered to disclose the amount and source of these funds --- and pay them over to Newton pursuant to the Assignment Order, the Order to Compel should require Freydl to disclose all of them, not merely the $24,750.00 that Newton already knows about. Newton should not have to expend even more of his scare resources than he already has (by securing the Subpoenaed bank records), e.g., by conducting a creditor’s examination pursuant to CCP §708.110 et seq. Enough is enough!
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Newton respectfully requests that the Court compel Freydl to pay all of these
funds to Newton forthwith – in cash only.
1. Assignment Order Funds From Gamarra And His Corporations.
The amount of the payments from Gamarra and/or his corporations
that Newton is aware of is TWENTY FOUR THOUSAND, SEVEN HUNDRED AND
FIFTY DOLLARS ($24,750.00). The actual amount is almost assuredly much
greater than that, and Newton demands that Freydl disclose to the Court and
to Newton (with full written evidence) all of the funds that he received from
Gamarra and/or his corporations since June 23, 2011, and immediately pay
these funds to Newton, in cash.
2. Assignment Order Funds From The Identified Bank Of America Account.
The Amount of the identified Bank of America account is Twenty One
Thousand, Fifty Five Dollars and Fifty Nine Cents ($21,055.59). Freydl has
paid none of these funds to Newton, and it is a virtual certainty that he
entirely depleted the account.13
C. Gamarra And Freydl Are Guilty Of Contempt Of Court.
There is ample cause for this Court to issue separate Orders to Show
Cause for both Freydl and Gamarra for why each of them should not be held
in criminal contempt for their willful disobedience of the Assignment Order. 13 The account was the subject of a restraining order which did not dissolve until five (5) days after the date of the Assignment Order. See Assignment Order, §E, last ¶. Both Freydl and Gamarra were served within this time period, discussed, infra. Accordingly, the full $21,055.59 should have been assigned – and paid – to Newton.
10
Code of Civil Procedure (“CCP”) §1209, et seq., provides this Court with the
power to punish acts, such as Freydl and Gamarra's, which are in
"disobedience of any lawful . . . order of the court." CCP §1209(a)(5). See
also Pacific Telephone and Telegraph Co. v. Superior Court , 265 Cal.App.2d
370 (1968) (§1209 contempt proceedings are special proceedings, criminal in
character and intended to implement the inherent power of the court to
enforce its lawful orders).
CCP §1211 provides that when contempt is not committed in the
immediate view and presence of the court, an affidavit shall be presented to
the court of the facts constituting the contempt. For this purpose,
declarations can be used in place of affidavits. CCP §2015.5.
The above declaration "need only make a prima facia showing of the
elements of contempt." Crawford v WCAB, 213 Cal.App.3d 156, 169 (1989).
The declaration must show: (1) the rendition of a valid order; (2) the
respondent's knowledge of the order; (3) the respondent's ability to comply
with the order; and (4) the respondent's willful disobedience of the order.
See Conn v Superior Court (Farmer's Group), 167 Cal.App.3d 774, 784
(1987). All these conditions are present here, and Freydl and Gamarra are
each guilty of contempt of Court. Each of the elements is discussed below.
1. Valid Order.
The Assignment Order was properly and validly issued by the
Honorable Steven L. Perk on June 23, 2011, after a full Hearing and due
process to Freydl, who was represented by counsel. The Order remains valid
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today. Since its entry, there has been no successful challenge to the validity
of the Order by Freydl. (Newton Decl. at ¶4.) There was no appeal from the
Order, which is clearly final and no longer subject to direct or collateral
attack.
A. Any collateral attack against the Injunction by Freydl would be meritless.
The only permissible collateral attack against the Order would be
based on a wholly meritless claim by Freydl that it is invalid on its face.
People v Gonzalez, Cal.4th 804, 823-4 (1996). The Court's file reflects that,
prior to the entry of the Order, Freydl fully litigated his claims against such
an order. Considerable time and effort was expended by the parties and
Judge Perk in addressing and rejecting Freydl's numerous arguments as to
why the proposed Order was improper.
2. Freyd and Gamarra Had Actual Knowledge Of The Assignment Order.
Both Freydl and Gamarra are and have been, at all times relevant,
actually knowledgeable of the Assignment Order. Freydl was competently
represented by counsel at the Hearing, attorney Steven T. Devlin, Esq.,
whose office at the time was embroiled in the Focus on Cars compound in
Long Beach. Moreover, Gamarra and Freydl were properly served with the
Order. Proofs of service are attached hereto and labeled as Exhibit 4 and 5.
Although Gamarra instructed his guard, James, to attempt to illegally block
service, his attempted obstruction of justice did not succeed, and Freydl was
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nevertheless served by substitute service on James,14 after the required
number of attempts had been accomplished. Therefore, Freydl is bound by
the Order, which includes the injunction and notice of contempt set forth in
CCP §708.520.15
14 As well as by mail at his residence. Id.15 CCP §708.510 provides:
(a) When an application is made pursuant to Section or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
(b) The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.
(c) The court may modify or vacate the order at any time with or without a hearing on such terms as are just.
(d) The order shall be personally served upon the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to being held in contempt of court. Id.
13
Gamarra was served both personally and by substitute service on James.16
Id. Additionally, the Order was faxed to attorney Devlin17 on June 23, 2011.
3. Freydl and Gamarra Were Fully Able To Comply With This Court’s Assignment Order, And Freydl Was Fully Able To Comply With The Injunction.
Both Freydl and Gamarra were fully able to comply with the
Assignment Order, and Freydl was fully able to comply with the injunction.
Gamarra wrote checks (see exemplars, Exhibit 3 hereto) to Freydl, and
Freydl cashed each and every one of these checks. Accordingly, the checks
themselves are res gestae of Gamarra’s ability to comply with the
Assignment Order. Freydl was fully able to comply with the assignment to
Newton, as proven by his service upon Newton of a barratrous, million
dollar retaliatory lawsuit against Newton’s brother, Richard, whom Freydl
attempted to serve at Newton’s then address in Royal Oak, Michigan.18
Accordingly, both Freydl and Gamarra should be held in contempt for failure
16 Pursuant to CCP §708.540, Notice to Gamarra, as Obligor under the Assignment Order, was sufficient to bind him to it. CCP §708.540 provides:
The rights of an obligor are not affected by an order assigning the right to payment until notice of the order is received by the obligor. For the purpose of this section, "obligor" means the person who is obligated to make payments to the judgment debtor or who may become obligated to make payments to the judgment debtor depending upon future developments. Id. (emphasis added).
17 And Bank of America’s legal department.18 See Newton v Bank of America, 0-2011-00485897-CU-EN-CJC, Events #23 (Cross Complaint filed by Freydl) and #30 (service of Cross Complaint by mail by Freydl on Richard Newton at Jeffrey Newton’s address).
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to complete the assignment. Additionally, Freydl should separately be held
in contempt for each act of disobeying the injunction.19
4. Freydl and Gamarra Have Willfully Disobeyed The Assignment Order And The Injunction, And Must Be Appropriately Sanctioned.
Both Freydl and Gamarra wilfully failed to comply with the Assignment
Order. Neither one of them has sent Newton any money. Neither one of
them have sent Newton any written evidence of an assignment. These
omissions constitute contempt pursuant to Penal Code 166(a)(4).20
Moreover, Freydl, by violating the CCP §708.510 injunction, is separately
liable for each act of that contempt. Accordingly, the requirement that there
be a "willful disobedience" of a court order to support the sanction of
criminal contempt is undeniably met here.
This Honorable Court should exercise all of its available powers to stop
the mockery of its authority and the violation of Newton's rights. Both Freydl
and Gamarra should be subject to a fine of $1,000 for each violation (each
check) for a total (thus far) of $17,000 and incarcerated for not more than
five days, again for each check (for 85 days each) pursuant to CCP §1218.
Freydl should be further subject to an additional fine of $1,000.00 for each
violation of the CCP §708.510 injunction for an additional total of $17,000.00 19 Accordingly, Freydl should be punished separately for each act of contempt for both the failure to assign and the violation of the injunction, for double the incarceration, i.e., ten (10) days of jail for each check, rather than merely five (5).20 §166(a)(4) condemns “[w]illful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by a court, including orders pending trial.” Id.
15
(thus far) and an additional period of incarceration for not more than five
days, again for each check (for an additional 85 days). This brings Freydl’s
totals to $34,000.00 and 170 days. Newton should also be awarded the
costs and attorneys' fees he has incurred in enforcing the Assignment
Order.21
Newton also submits that upon a finding of contempt under CCP
§1209, et seq., referral to the District Attorney for misdemeanor prosecution
under Penal Code §166(4) is also necessary to curtail Freydl and Gamarra's
continued defiance of this Court's authority.
5. Liability Of Gamarra.
Gamarra is guilty of contempt for aiding and abetting Freydl in his
contempt. Without Gamarra, Freydl’s contempt vis a vis any payments from
Gamarra or any of his listed corporations would simply not have been
possible. Accordingly, Gamarra intentionally acted in concert with Freydl to
avoid paying Newton, and therefore should be held in contempt.
The Assignment Order is an order requiring an act to be done, and,
therefore, is in all respects an affirmative injunction. The case law is pretty
clear: parties may not play jurisdictional "shell games." They may not nullify
an injunctive decree by carrying out prohibited acts with or through
nonparties to the original proceeding. Regal Knitwear v Labor Board, 324
U.S. 9, 14 (1945), 65 S.Ct. at 481; Roe v Operation Rescue (3d Cir. 1995) 54
F.3d 133, 139 ("... an instigator of contemptuous conduct may not 'absolve
21 Including $3,500 regarding the barratry, discussed, supra.
16
himself of contempt liability by leaving the physical performance of the
forbidden conduct to others”).
Accordingly, the affirmative injunction of the Assignment Order runs to
Gamarra, who is bound by it. “In matters of injunction ... it has been a
common practice to make the injunction run also to classes of persons [with
or] through whom the enjoined person may act ....," such as Gamarra. Ross
v Superior Court, 19 Cal. 3d 899, 906, 141 Cal. Rptr. 133, 569 P.2d 727
(1977). See also People v Conrad, 55 Cal. App. 4th 896, 903, 64 Cal. Rptr. 2d
248 (1997).
Accordingly, Gamarra’s multiple actions in writing checks to Freydl
with full knowledge of, and in violation of, the Assignment Order, are fully
contemptible, and his liability is as full as Freydl’s himself.
6. Notice To Freydl And Gamarra.
Both Freydl and Gamarra were timely and properly Notified of the date,
time, location and nature of these proceedings, including the Monday, July
14, 2014 8:30 a.m. Ex Parte Hearing hereto, all as set forth in the attached
Declaration of Jeffrey S. Newton at ¶¶8 and 9 thereto, the Ricardo
(“Richard”) Gamarra/Asombroso Tequila contact information from the
Internet, attached hereto and labeled as Exhibit 6, and the Freydl/Newport
Villa Apartment Fax information and rent check, attached hereto and labeled
as Exhibit 7. A copy of the covering email letter of the Application to Mr.
Gamarra is attached hereto and labeled as Exhibit 8. A copy of the covering
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email letter of the Application to Mr. Freydl is attached hereto and labeled as
Exhibit 9.
IV. CONCLUSION
For the above reasons, Newton respectfully requests that this
Honorable Court issue its Order to Show Cause why Judgment Debtor
Thomas Patrick Freydl and Assignment Order Obligor Richard Gamarra to
should not be held in contempt of Court, incarcerated until payment as set
forth above is made in full, and Ordered to pay Newton his costs and
attorney fees incurred in bringing this Motion.22
Respectfully submitted,
____________________Jeffrey S. NewtonPlaintiff/Judgment Creditor
DATED: July 10, 2014
22 Or to immediately pay all monies paid to Freydl by any of the Obligors since June 23, 2011 over to Newton, as well as the full $21,055.59 in the identified Bank of America Account.
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DECLARATION JEFFREY S. NEWTON
I, JEFFREY S. NEWTON, first being duly sworn, do hereby declare, under penalty of perjury, as follows:
1. I am the Plaintiff and Judgment Creditor in this action. I have
represented myself through all states of these proceedings. As such, I have
personal knowledge of the facts set forth below and, if called upon to testify
on such matters, would and could do so competently.
2. On June 23, 2011, Judge Perk of this Court entered the
Assignment Order which is the subject of this motion. Exhibit 1 to Motion. At
the Hearing thereto, Defendant-Judgment Debtor Thomas Patrick Freydl (“Mr.
Freydl”) was competently represented by counsel at, Steven T. Devlin, Esq.
(“Attorney Devlin”) The Court thoroughly considered and rejected all of Mr.
Freydl’s numerous arguments against the entry of such an Order.
3. Both Mr. Freydl and Ricardo “Richard” Gamarra (“Mr. Gamarra”)
were timely and properly served with the Assignment Order, as fully set forth
in Exhibits 4 and 5 to Motion. Additionally, the Order was telefaxed on the
date of its entry to Attorney Devlin, who personally informed me that he
represents Mr. Gamarra in other matters. Accordingly, both these gentlemen
have and have had, since June 23, 2011, actual knowledge of the
Assignment Order.
4. Neither Mr. Freydl nor Mr. Gamarra have ever sought to
challenge the Assignment Order after the date of its entry.
5. Mr. Gamarra wrote at least seventeen (17) checks from June 23,
2011 to the present to Mr. Freydl from Focus on Cars. Exhibits 2 and 3 to
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Motion. All of these checks are in violation of the Assignment Order. Neither
Mr. Gamarra nor Mr. Freydl have ever paid me any money or assigned any of
Mr. Freydl’s payments to me since June 23, 2011. Accordingly, both Mr.
Gamarra and Mr. Freydl had the actual ability to comply with the Assignment
Order, and have wilfully disobeyed said Order.
6. I am informed and believe that there are many more payments
that I am not yet aware of, especially given that the payments that I am
currently aware of and have presented to the Court only cover a period of
four and a half (4.5) months during a thirty six (36) month period, i.e., from
November 27, 2012 through April 8, 2013 during the period from June 23,
2011 through the present.
7. Mr. Freydl saw fit to file a vexatious, totally spurious, barratrous
Crossclaim against my brother, Richard A. Newton, which he served by mail
to my Michigan address of 208 Willis, Royal Oak, Michigan 48067. Mr. Freydl
also has my telephone number and email address (these have not changed
since the date of the entry of the Assignment Order). Mr. Freydl is fully
capable of contacting me at any time. Mr. Gamarra is similarly
knowledgeable and capable.
8. On the morning of July 11, 2014, I emailed the documents listed
address that he has used in these proceedings, and which I believe is on file
with the Court.
I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed this 10th day of July, 2014 at Valley Village, California.
