Judge Ronald F. Frank, Case Number: 20TRCV00610, Date: 2023-08-30 Tentative Ruling

On August 28, 2020, Plaintiff, Earl Brown and Shonte Powers (collectively “Plaintiffs”) filed a Complaint against Mercedes-Benz USA, LLC, and DOES 1 through 10. The Complaint alleges causes of action for: (1) Statutory Violation of California Civil Code section 1793.2(d)—Failure to Repurchase/Replace; (2) Statutory Violation of California Civil Code section 1794(b)—Failure to Complete Repairs within 30 days; (3) Statutory Violation of California Civil Code sections 1791.1, 1794 – Breach of Implied Warranty of Merchantability; and (4) Violation of Business and Professions Code.

On July 11, 2023, Defendant filed a Motion to Compel the Production of Plaintiffs’ Vehicle Inspection. On August 30, 2023, the Court granted the motion and imposed a series of conditions to facilitate a productive vehicle inspection (“VI”) given proof that either Plaintiffs or their counsel were not being cooperative in enabling MBUSA to inspect the subject vehicle, a critical facet of a Song-Beverly Act defendant’s evidence gathering and trial preparation. On two separate occasions, counsel and experts for both sides appear to have been ready, willing, and available to perform the VI but neither plaintiffs nor the vehicle arrived. In an effort to rectify what appeared to the Court to be unwillingness or lack of cooperation by Plaintiffs themselves to bring the subject vehicle to a Mercedes-Benz dealership for the measurements and testing aspects of a VI, the Court ordered the VI to commence at Plaintiffs’ residence.

On September 13, 2023. shortly after the second of these failed VI efforts and after the Court’s August 30 Order, MBUSA filed a motion for contempt for Plaintiffs’ refusal to abide by the Court’s Order and for other sanctions. MBUSA also brought an ex parte application to advance the hearing date on the Contempt Motion in light of the looming trial date. The Court granted the ex parte application in part, setting a briefing schedule and a September 27, 2023 hearing date. At the ex parte hearing, the Court indicated its intent to postpone or vacate the trial date given the delays in conducting the VI.

This hearing was originally set for September 27, 2023. This Court continued the motion and vacated the scheduled trial date, noting that it appeared counsel had lost communication with their clients, or that their clients had communicated unwillingness to cooperate in the conduct of a Court-ordered VI. The Court observed that it appeared that counsel intended to withdraw from representation.

On November 14, 2023, this Court granted the motion relieving counsel for Plaintiffs of their representation.

II. ANALYSIS

Legal Standard

Civil Contempt procedures are set forth in Code of Civil Procedure §§ 1209 through 1222. (See Allison v. County of Ventura (1977) 68 Cal. App. 3d 689, 702.) Under these rules, a proceeding for adjudication of constructive contempt is customarily initiated by the issuance of an Order to Show Cause. (In re Rose (1949) 90 Cal. App. 2d 299, 305.) The proceeding is also initiated by the filing of an affidavit or declaration, stating the facts constituting the alleged contempt, in order to confer jurisdiction upon the court to exercise its contempt powers over the accused. (In re Liu (1969) 273 Cal. App. 2d 135, 140-41.)

Since a contempt proceeding is quasi-criminal in nature, the accused person is entitled to due process, or the procedural safeguards available to a person accused of a criminal charge, including the right to know the exact nature of the charge against him/her so that he/she can prepare and present his/her defense. (Ibid. at 141.) The accused must be shown, beyond a reasonable doubt, that he/she had the ability to comply with the subject court order; the burden of proof on this issue lies with the party seeking to have the accused held in contempt. (Ibid. at 141-42.)

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.) An “indirect contempt” occurs out of court but is equally subject to the summary punishment set forth in Code of Civil Procedure § 1211: “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.” (Arthur v. Sup.Ct. of Los Angeles County (1965) 62 Cal.2d 404, 407-408.) Thereafter, an order to show cause must be issued and the court must hold a hearing on the facts. (Ibid. at 408.) Since the acts involved in the alleged contempt in this action did not occur in the Court’s presence, the affidavit must cover each element of the commission of the contempt. (Code Civ Proc. § 1211.5.) If necessary, the court may order or permit amendment of the affidavits at any stage of the proceedings. (Code Civ. Proc. § 1211.5(b).)

The elements of contempt are: (1) facts establishing court’s jurisdiction (e.g., personal service of subpoena, validity of court order allegedly violated, etc.); (2) the party’s knowledge of the order disobeyed; (3) the party’s ability to comply; and (4) the party’s willful disobedience of the order. (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169; In re Jones (1975) 47 Cal.App.3d 879, 881.)

Furthermore, the order must be personally served on the party to establish jurisdiction. (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281.)

Discussion

Here, the Court DENIES this motion for contempt, because Defendants are unable to show that they have personally served Plaintiff. The proof of service filed by Defendant on January 17, 2024 indicates that Plaintiff was served by mail and by electronic transmission. Without evidence that Plaintiff has been personally served in this case, the Defendant has not shown that this Court has jurisdiction to enforce an order for contempt as to Plaintiff.

Despite this, the Court may grant evidentiary sanctions against Plaintiff for his repeated violation of court-ordered discovery i.e., the vehicle inspection. A judge has broad discretion to impose discovery sanctions in a civil proceeding, and is subject to reversal only for arbitrary, capricious, or whimsical action. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489.) In other words, for discovery abuse, “[t]he penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.) Discovery sanctions are meant to “protect the interests of the party entitled to but denied discovery,” and should not operate to “put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Siry Investment, LP. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1118.)

While the power to impose discovery sanctions is broad, there are two requirements that must be met before the imposition of issue, evidentiary, or terminating sanctions: (1) there must be a failure to comply with court-ordered discovery; and (2) the failure must be willful. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 [“willfulness is no longer a requirement for the imposition of discovery sanctions”].)

Here, the Court’s tentative ruling is to order evidentiary sanctions to bar Plaintiffs from offering any evidence or argument that any claimed defect in the subject vehicle has not been successfully repaired. The Court is also inclined to GRANT monetary sanctions of $2,000. Plaintiffs’ repeated failure to comply with this Court’s VI orders robs Defendant of the ability to inspect the vehicle and provide proof as to the existence of any ongoing repair symptoms or defects that have not been successfully remedied by its authorized dealers. Accordingly, the evidence preclusion sanction is tailored to “fit the crime.”