Case Number: 19STCV02399 Hearing Date: December 19, 2019 Dept: 4A

Motion to Set an OSC Re: Contempt

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On January 24, 2019, Plaintiff Jean S. Betancourt (“Plaintiff”) filed a complaint against Defendant Carlos Pulido (“Defendant”) alleging motor vehicle and general negligence for an automobile collision that occurred on October 23, 2017.

On November 12, 2019, Plaintiff filed a motion to set an OSC Re: Contempt pursuant to California Code of Civil Procedure section 1209.

Trial is set for July 23, 2020.

PARTY’S REQUESTS

Plaintiff asks the Court to set an OSC Re: Contempt against Defendant and his counsel for willful disobedience of a July 5, 2019 Court order.

Plaintiff also asks the Court for $4,335 in attorney’s fees and costs for bringing this motion.

LEGAL STANDARD

Code of Civil Procedure section 2023.010 provides, in relevant part:

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(e) The court may impose a contempt sanction by an order treating the misuse of the discovery process as a contempt of court.

“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “‘attempt [] to tailor the sanction to the harm caused by the withheld discovery.’” [Citations.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.] (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. “Discovery sanctions ‘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.’” (Ibid.)

While a contempt sanction is available for violation of a discovery order under some circumstances, such a sanction may only be imposed based on a finding that the contemnor has engaged in a willful failure to obey a valid court order and may not be imposed for mere inadvertence or for an inability to comply. (Chapman v. Superior Court (1968) 261 Cal.App.2d 194, 200.) Contempt is “’a drastic remedy, to be employed only when necessary to the proper and orderly conduct of judicial proceedings. A charge of contempt of court must be considered judicially as the question of guilt of any criminal offense must be, and a judge may not punish for contempt merely because he has suffered annoyance through the failure of some order he has made to receive instant observance.’” (Id. at p. 201 (citation omitted).)

DISCUSSION

On July 5, 2019, the Court ordered Defendant and his counsel of record to pay Plaintiff $923.30, jointly and severally, within 30 days of the order. (Rostomyan Decl., ¶ 4, Exh. A.) Defendant submitted on the Court’s tentative. (Rostomyan Decl., ¶ 5.) A notice of ruling was served on Defendant on July 8, 2019. (Ibid., Exh. B.) Defendant and his counsel had not paid the Court-ordered sanctions as of the signing of Aram Rostomyan’s declaration on November 2019. (Rostomyan Decl., ¶ 6.) Plaintiff has sent Defendant many emails and has called Defendant multiple times trying to obtain the Court-ordered sanctions. (Rostomyan Decl., ¶¶ 7-9, Exh. C.)

Defendant argues the Court-ordered sanctions were not paid due to an oversight, inadvertence, and/or mistake. (Spriggs Decl., ¶ 3.) On November 14, 2019, Defendant sent a check to Plaintiff for $923.30. (Spriggs Decl., ¶¶ 6-7, Exh. B.)

The Court finds the motion must be denied. Setting an OSC Re: Contempt for a mistake that led to the delayed payment of sanctions would be unjust and disproportionate to the offense. Similarly, the requested issue sanction would not be a sanction tailored to the harm of a delayed payment of $923.30.

Accordingly, the motion is DENIED.

Plaintiff is ordered to give notice of this ruling.