Judge Michael Small, Case Number: 20STCV22026, Date: 2024-04-09 Tentative Ruling

Judge: Michael Small, Case: 20STCV22026, Date: 2024-04-09 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 20STCV22026 Hearing Date: April 9, 2024 Dept: 57

Pending before the Court is the application of Plaintiffs Michael Mann and Marilyn Craig requesting that the Court set an Order to Show Cause (“OSC”) as to why Defendants, along with their counsel should not be held in contempt of the Court’s June 1, 2023 Order listing days of religious observance in 2023 and 2024 on which Plaintiffs will not be required to appear or participate in any hearing, trial, deposition or other Court-related activity in this litigation (“the Order”). The Defendants are Farmers Insurance Exchange, Fire Insurance Exchange, Truck Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively, “Farmers”) and Arnoldo Jaquez. As relevant here, the dates listed in the Order include Friday September 15, 2023, Sunday, September 24 through Monday, September 25, 2023, Saturday, September 30 through Sunday October 8, 2023 and “Monday, April 22 through Tuesday April 30, 2024. (Order, ¶ 2.) The Order further prohibits Defendants and their counsel from “creating burdens on, immediately before and after the dates listed above such that observance is burdened.” (Id. ¶ 3.) The Order also states that “[a]ny motions or other Court-related events involving deadlines should be scheduled to avoid the days of observance or burdening them.” (Id. ¶ 4.)

For the reasons set forth below, the Court is denying the application as to all of the Defendants and their counsel.

Particular acts constituting contempt are enumerated by statute, including “[d]isobedience of any lawful judgment, order, or process of the court.” (Code Civ. Proc., § 1209, subd. (a)(5).) Under Code of Civil Procedure section 1211, when contempt is committed outside the presence of the court, which is known as “indirect contempt”, an affidavit or declaration shall be presented to the court of the facts constituting the contempt. The elements of contempt via disobedience of a court order are (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. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) In support of their application, Plaintiffs submit the declaration of their counsel, Nancy Anfanger. That declaration does not show facts constituting indirect contempt because it fails to show that Defendants or their counsel willfully disobeyed the Order.

Taking the issues related to Jaquez first, on March 5, 2024, Jaquez filed four motions to compel Mann’s and Craig’s further responses to Jaquez’s second sets of special interrogatories and requests for production of documents (collectively, “MTCFs”). (Garcia Decl., ¶ 10; Anfanger Decl., ¶ 4.) Those MTCFs were initially noticed to be heard on April 22, 23 and 30, 2024, that is, during Passover, and May 1, 2024, the day immediately following Passover in violation of the Order. Counsel for Jaquez explains in her declaration that upon being served the Plaintiff’s application for an OSC on March 11, 2024, she became aware of the scheduling error. (Garcia Decl., ¶ 11.) Because Anfanger had not contacted Jaquez’s counsel before serving and filing the application, this was the first time Jaquez’s counsel realized the error. (Ibid.) On March 12, 2024, Jaquez’s counsel apologized for inadvertently scheduling the hearings during religious observance, offered to reschedule them and asked if Anfanger she was willing to withdraw the application. (Id., ¶ 12, Ex. A.) Anfanger responded the same day by stating that the error was “DELIBERATE” and addressed neither Jaquez counsel’s offer to reschedule nor request to withdraw. (Ibid.) On March 19, 2024, Jaquez filed four Notices of Continuance, continuing the MTCF hearings to June 24, 25, 26, 27, 2024. (Id., ¶¶ 13, 14, Exs. B-E.)

All told, Jaquez’s counsel promptly apologized to Anfanger, offered to reschedule the initially noticed hearings, and ultimately continued them to avoid conflicting with Passover and any other days of religious observance. In the Court’s view, the conduct of Jaquez and his counsel does not manifest willful disobedience of the Order. The Application is thus denied as to Jaquez. There is no need for an OSC on whether to hold Jacquez and his counsel in contempt of the Order.

As to Farmers, the Court disregards any conduct of Farmers raised by Plaintiffs in the application that occurred in the Crostigan litigation, which is pending in a different court and is irrelevant to the issues in this litigation, before this Court. The relevant conduct of Farmers entails serving Plaintiffs with sets of discovery requests on September 6, 2023 and October 19, 2023 and Mann’s deposition notice on September 28, 2023. (Anfanger Decl., ¶¶ 2, 11.) None of those dates is listed in the Order. Plaintiffs would have had 30 days from September 6, 2023 to respond to discovery – meaning, until Friday, October 6, 2023, or Tuesday, October 10, 2023 if the discovery was served electronically; the due dates could be extended by agreement in writing to avoid any day listed in the Order. (Code Civ. Proc., §§ 2030.260(a), 2033.250, 2016.060, 2030.270, 2033.260(d).) As to the discovery requests served on October 19, 2023, Plaintiffs would have had until Monday, November 20, 2023 or Wednesday, November 22, 2023 if electronically served. (Ibid.) Neither of those dates is listed in the Order. Mann’s deposition was noticed initially for November 28, 2023, which was later advanced to Monday, November 20, 2023. That day is not a religious holiday.

Plaintiffs nevertheless argue that because some of the discovery that Farmers served would become due shortly after a religious holiday, Farmers has burdened the exercise by Plaintiffs and Ms. Anfanger to exercise their religion and thereby violated Order. The Court disagrees. because the deadline could be adjusted and extended by agreement of the parties as routinely happens with respect to discovery. As such, the discovery deadline based on the service date is not a “Court-related activity” contemplated by the Order.

All told, Farmers’ service of the discovery requests on which Plaintiffs based their application does not manifest willful disobedience of the Order. The Application is thus denied as to Farmers. There is no need for an OSC on whether to hold Farmers in contempt of the Order.