Judge Mark A. Young, Case Number: 21SMCV01472, Date: 2025-01-23 Tentative Ruling

Judge: Mark A. Young, Case: 21SMCV01472, Date: 2025-01-23 Tentative Ruling

Case Number: 21SMCV01472 Hearing Date: January 23, 2025 Dept: M

CASE NAME: Strategic Legal Practices APC v. Consumer Law Experts PC, et al.

CASE NO.: 21SMCV01472

MOTION: Motion for an OSC Re: Contempt

HEARING DATE: 1/23/2025

Legal Standard

If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . ..” (CCP §§ 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery process, which includes disobeying a court order to provide discovery, is conduct subject to sanctions. (CCP § 2023.010(g).) Possible sanctions include monetary sanctions, terminating sanctions, and/or contempt sanctions by an order treating the misuse of the discovery process as a contempt of court. (CCP § 2023.030.)

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877, 884 [interpreting former statute dealing with “refusal” to comply].) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201.)

Courts have an inherent power to enforce compliance with their orders and rulings through contempt proceedings. (In re M.R. (2013) 220 Cal.App.4th 49, 56.) Courts also have statutory authority to enforce compliance with their orders. (CCP § 128(a)(4).) CCP section 1209(a)(5) expressly provides the Court with the power to punish “[d]isobedience of any lawful judgment, order, or process of the court.”

Contempt is any act, in or out of court, “which tends to impede, embarrass or obstruct the court in the discharge of its duties.” (In re Shortridge (1893) 99 Cal. 526, 532.) Contempt committed in the immediate view and presence of the Court may be punished summarily, but contempt committed outside the Court’s presence requires an affidavit presenting the facts constituting the contempt. (CCP § 1211(a).) “When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” Thereafter, an order to show cause must be issued and a hearing on the facts must be held by the court. (Arthur v. Superior Court (1965) 62 Cal.2d 404, 407-408.)

To justify the application, the requirements “can be easily satisfied with a declaration under penalty of perjury[.]” (M.R., supra, 220 Cal.App.4th at 63.) The declaration need only make a prima facie showing of the following elements: “(1) the making of the order; (2) knowledge of the order; (3) ability of respondent to render compliance; and (4) willful disobedience of the order.” (People v. Superior Court (1965) 239 Cal.App.2d 99, 104; see also In re Morelli (1970) 11 Cal.App.3d 819, 832-33.) Although not required, the alleged contemnor may respond to the affidavit and OSC by counteraffidavits or declarations. The counter-affidavits serve as the “answer” to the charging allegations in the original affidavit. (Lyon v. Superior Court, supra, 68 Cal.2d at 452.) The alleged contemnor may still assert his or her defenses entirely at the hearing. (CCP § 1217.)

Civil contempt proceedings are quasi-criminal in nature because of the penalties which may be imposed. (In re Kreitman (1995) 40 Cal.App.4th 750, 754.) The punishment for contempt is up to five days' imprisonment and/or a fine of up to $1,000 for each contempt. (See CCP § 1218(a).) Thus, “guilt must be established beyond a reasonable doubt.” (Ross v. Sup. Ct. (1977) 19 Cal.3d 899, 913.)

Analysis

Defendant Benjamin Beck moves for an order to show cause why Plaintiff Strategic Legal Practices APC and its counsel of record, Martin Singer and Kelsey Leeker of Lavely & Singer, P.C., should not be held in contempt for violating the Court’s July 23, 2024 Order, and for terminating and additional monetary sanctions in the amount of $5,114.15, representing his reasonable expenses incurred and $2,000.00 for violation of the order.

Defendant notes that the Court’s July 23, 2024, order required Plaintiff and Payam Shahian to appear for their previously noticed depositions within 20 days. The Parties agreed to schedule the depositions on September 5 and 6, 2024 in Beck’s counsel’s Los Angeles office. Paetkau Decl., ¶ 4.) One week before the scheduled depositions, on August 29, 2024, Plaintiff’s counsel unilaterally canceled the depositions, writing: “Unfortunately, a scheduling conflict has come up and we are no longer available for the deposition scheduled for Friday, September 6. Is it possible to instead do the depositions on Wednesday and Thursday (the 4th and 5th) rather than Thursday and Friday (the 5th and 6th)?”

Plaintiff argues that the motion is moot. They explain that Beck’s counsel was not available on September 4 and therefore requested that SLP provide alternative dates “so that we can take both depositions on consecutive days.” (Leeker Decl., ¶ 14, Ex. D, F.) Plaintiff proposed “September 11, 12 and/or 13” for the depositions and Beck agreed on September 12 and 13. (Leeker Decl., Ex., G.) The depositions went forward on those dates, as agreed. (Id. ¶ 16.)

On this record, the motion is moot. Plaintiff has complied with the court’s discovery order. The Court does not consider Plaintiff’s insubstantial delay in complying with the court’s discovery order to be a “willful” disobedience. As such, terminating sanctions and contempt proceedings would be grossly inappropriate. The depositions went forth in a timely manner and the sanctions award was paid in September. Based upon this record, the court would not sanction a party for failure to immediately pay a money judgment.

Finally, the Court will take a moment to comment on civility in the profession, or more aptly, the lack of civility. Filing a contempt motion based upon the record before the Court was a waste of the Court’s time, counsel’s time, and their client’s money. Based upon the review of the email correspondence, there were good faith efforts to reschedule the depositions in a prompt manner (or more accurately, schedule for an even earlier date). Counsel was free to reject that date, or propose other dates, but filing a motion for contempt and terminating sanctions was unreasonable. Furthermore, the barrage of emails demanding payment over the course of three hours was completely unprofessional and unworthy of the profession. The Court expects and demands better. If those expectations are not met, the Court will use its available tools to make sure the rules of civility are followed.

The motion is DENIED.