Koshak v. Malek
200 Cal. App. 4th 1540
| Cal. Ct. App. | 2011Background
- Malek was convicted of 10 counts of indirect contempt and sentenced to jail time and fines, plus attorney fees, with a restitution order of $1.7 million to the receivership.
- The restitution was based on the trial court’s asserted independent authority to enforce its orders and manage the receivership proceedings.
- The ex parte receiver request referenced only attorney fees for pursuing contempt; it did not specify restitution or amounts later ordered.
- At sentencing, the court announced a separate restitution payment schedule to be deposited into the receivership, with May 27, 2010 as a payment deadline.
- The restitution amount was not tied to a noticed hearing or briefing on entitlement or amount, and Malek had limited notice.
- Malek timely appealed the restitution order, and the issue of its appealability was raised on the court’s own motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the restitution order appealable as a final collateral order? | Malek argues the order is not a collateral final order. | Malek contends the order is appealable because it directs payment to a receivership. (Note: use Malek for defendant.) | Yes; the restitution order is appealable as a final collateral order directing payment. |
| Did due process require notice and a hearing before entry of the restitution order? | Malek claims lack of due process due to no prior notice/hearing on restitution. | Receivership argues no due process issue since restitution follows contempt proceedings. | No; the trial court violated due process by entering restitution without notice/hearing. |
Key Cases Cited
- Randone v. Appellate Dept., 5 Cal.3d 536 (Cal. 1971) (prejudgment attachment due process limits)
- Sniadach v. Family Finance Corp., 395 U.S. 337 (U.S. 1969) (prejudgment seizure requires notice and hearing)
- Connecticut v. Doehr, 501 U.S. 1 (U.S. 1991) (prejudgment attachment requires notice and hearing)
- Fuentes v. Shevin, 407 U.S. 67 (U.S. 1972) (summary seizure without notice violates due process)
- Fish v. Fish, 216 Cal. 14 (Cal. 1920s) (collateral order to pay receiver’s fees; appealable)
- Steinberg v. Goldstein, 122 Cal.App.2d 516 (Cal. App. 2d 1954) (prejudgment payments to receiver appealable)