Judge: Steven A. Ellis, Case: 19STCV03327, Date: 2023-08-10 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV03327    Hearing Date: November 20, 2023    Dept: 29

Tentative

The motion is DENIED.

Background 

According to the complaint, on August 17, 2018, Plaintiff Camecia Lee (“Plaintiff”), while crossing Artesia Boulevard in Bellflower, California as a pedestrian, was injured by a vehicle driven by Defendant Yolanda Yvette Coleman (“Defendant”).  On January 31, 2019, Plaintiff filed a complaint against Defendant and Does 1 through 20 asserting causes of action for motor vehicle negligence and negligence per se.

There is a substantial procedural history in this case, which the Court will not attempt to summarize here.  As is pertinent to the pending motion, on March 21, 2023, the Court granted the Defendant’s motion to compel the mental examination of Plaintiff; on April 13, 2023, Dr. George Henry conducted the examination of Plaintiff; and on August 10, 2023, the Court granted Plaintiff’s motion and ordered Dr. Henry to provide to Plaintiff’s counsel, within 14 days of service of the order, “all materials related to [his] neuropsychological evaluation of Plaintiff, including all raw data, test administered, test results, scores, interpretive materials, literature, and anything else used but not produced.”

Dr. Henry did not produce the material to Plaintiff’s counsel.

On October 9, 2023, Plaintiff filed the instant motion for an Order to Show Cause re: Contempt against Defendant’s counsel Michele M. Spencer and their expert witness Dr. Henry.  Plaintiff also requests monetary sanctions of $5,920. 

Defendant’s counsel and Dr. Henry each filed oppositions on October 25, 2023.  Plaintiff filed a consolidated reply on October 31, 2023.  

The hearing was initially set for November 7.  The Court, on its own motion, continued the hearing to November 20.

Legal Standard 

A willful refusal to obey a court order is contempt.  (E.g., Code Civ. Proc., § 1218; In re Liu (1969) 273 Cal.App.2d 135, 139.)  Punishment of contempt may include imprisonment and a fine; because an individual’s liberty is at issue, a contempt proceeding is criminal or quasi-criminal in nature, and the accused is entitled to the procedural safeguards available in criminal proceedings, including that each element of the contempt must be proven beyond reasonable doubt.  (Id., at pp. 141-142.)  The elements of a contempt are (1) the making of a valid order; (2) the respondent’s knowledge of the order; (3) the ability of the respondent to comply; and (4) the respondent’s willful disobedience of the order.  (Id., at pp. 140-141.)  A proceeding to adjudicate constructive contempt is customarily initiated by the issuance of an Order to Show Cause (“OSC”), which is similar in function to a criminal indictment or information.  (See Allison v. County of Ventura (1977) 68 Cal.App.3d 689, 702.)¿   

Discussion 

Because a contempt proceeding is criminal in nature, strict compliance with all procedural requirements is necessary.  Here, however, there are numerous procedural defects in Plaintiff’s motion.

First, Plaintiff seeks relief against Dr. Henry, a third-party witness, but Plaintiff did not serve Plaintiff with this motion.  Plaintiff also did not serve Dr. Henry with the August 10 Order.  Absent proof of service of this motion on Dr. Henry (or waiver of service), the Court has no jurisdiction to impose grant any relief against him or impose any sanction against him.  Under the terms of the August 10 Order, Dr. Henry had no obligation to comply with it until after service.

Second, Plaintiff seeks relief against Defendant’s counsel.  But the August 10 Order did not impose any obligation on Defendant’s counsel.  Contempt is not a proper remedy against counsel when the court order at issue imposed no obligation on counsel.

The Court is of course extremely concerned about the conduct of both Dr. Henry and Defendant’s counsel.  It appears that Dr. Henry has actual notice of the August 10 Order and has decided that his interpretation of the law is superior to the Court’s.  Defendant’s counsel appears to be encouraging and facilitating this violation of a Court Order.  But these strong concerns that the Court has do not overcome the right of Dr. Henry and Defendant’s counsel to proper procedures, particularly in the context of a contempt proceeding, which is criminal in nature. 

Not all wrongdoing is criminal, and the Court has a variety of powers to enforce its orders against parties and third-party witnesses without using imprisonment or criminal fines.

Conclusion 

Plaintiff Camecia Lee’s Motion for Order to Show Cause Re Contempt against Defendant Yvonne Coleman’s counsel, Michele M. Spencer, and their expert witness Dr. George Henry is DENIED.

Moving party is ordered to give notice.