Case Number: BC618143 Hearing Date: June 28, 2018 Dept: 4

MOVING PARTY: Defendant Duo Xu

RESPONDING PARTY: None

The Court considered the moving papers. No opposition was filed.

BACKGROUND

On April 25, 2016, plaintiff Lee Hendrix filed a complaint against defendant Duo Xu alleging causes of action for motor vehicle and general negligence arising from a vehicle to vehicle collision which occurred on September 12, 2015.

On April 5, 2018, the Court granted Plaintiff’s counsel’s motion to withdraw.

Trial is set for July 10, 2018.

LEGAL STANDARD

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.” Thereafter, an order to show cause must be issued and a hearing on the facts must be held by the court. (Arthur v. Sup. Ct. (1965) 62 Cal.2d 404, 407-408.) 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; People v. Gonzalez (1996) 12 Cal.4th 804, 816.) 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.)

When alleged acts of contempt do not occur in the Court’s presence (“indirect contempt”), the moving party must file an affidavit that covers each element of the commission of the contempt. (See CCP § 1211.5.) This affidavit serves as the “complaint,” which must contain factual allegations based on firsthand knowledge. (Lyon v. Superior Court (1968) 68 Cal.2d 446, 452; Evid. Code, § 702.) The affidavit must set forth the following elements of indirect contempt: (1) validity of court order allegedly violated (to establish the Court’s jurisdiction); (2) the accused party had knowledge of the order he or she disobeyed; (2) the accused party was able to comply with the order he or she disobeyed; and (4) the accused party willfully disobeyed the order. (See CCP §§1211, 1211.5; In re Jones (1975) 47 Cal.App.3d 879, 881; People v. Gonzalez (1996) 12 Cal.4th 804, 816; see also Reliable Enterprises, Inc. v. Sup. Ct. (1984) 158 Cal.App.3d 604, 616.)

DISCUSSION

Defendant requests that the Court find Plaintiff in contempt of court and dismiss this case for abandonment because Plaintiff has failed to obey the Court’s January 25, 2018 order requiring Plaintiff to attend a medical examination by June 1, 2018.1

Defendant submits the declaration of David M. Hillier, Defendant’s counsel, in support of the motion to hold Plaintiff in contempt of court. While counsel’s declaration sets forth facts establishing a valid court order and that Plaintiff had knowledge of such order, the declaration fails to allege facts which establish that Plaintiff was able to comply with the order he disobeyed and that Plaintiff willfully disobeyed the order.

i. Valid Court Order

Counsel declares that Plaintiff’s prior counsel was served with a notice of ruling of the Court’s January 25, 2018 ruling in which the Court ordered Plaintiff to appear for a physical examination with Steven Nagelberg M.D., an orthopedic surgeon, located at 10800 Paramount Blvd., Suite 204A, in Downey, California on a date and time mutually convenient for Dr. Nagelberg and Plaintiff by June 1, 2018. (Decl. Hillier ¶ 5; Court Order dated 1/25/18 for Motion to Compel Compliance with Demand for Physical Examination at 2:25-3:3.) Thus, the declaration establishes that a valid Court order exists.

ii. Actual Knowledge of Court Order

Counsel declares that on January 29, 2018, Defendant served Plaintiff’s prior counsel a notice of the Court’s January 25, 2018 ruling and that Defendant also provided Plaintiff’s counsel with a letter with dates on which that Dr. Nagelberg was available to perform Plaintiff’s medical examination. (Decl. Hillier ¶¶ 5-6.) On February 26, 2018, notice of Defendant’s

demand for physical examination was served on Plaintiff’s prior counsel. (Id. ¶ 7.) On April 13, 2018, Defendant’s counsel sent a letter directly to Plaintiff individually, advising him that Plaintiff’s counsel had withdrawn from the case and that Plaintiff was now representing himself. (Id. ¶ 8.) Plaintiff was further advised in that letter that he was required by court order to appear for a medical examination which was scheduled for May 11, 2018. (Id.) The letter also informed Plaintiff that if Plaintiff failed to respond to Defendant, Defendant would file a motion seeking the court to find Plaintiff in contempt of court and for dismissal of the action. (Id.)

The Court notes that while Defendant purportedly gave Plaintiff and Plaintiff’s counsel notice of the Court order via letter, it is questionable if these facts are sufficient to establish that Plaintiff was actually on notice of the Court’s order. Meaning, it is questionable whether Plaintiff actually received these notices. Regardless of whether Plaintiff had actual knowledge of the Court’s order, as analyzed below, counsel’s declaration fails to establish Plaintiff’s ability to comply with the court order and Plaintiff’s willful disobedience of the court order.

iii. Ability to Comply

Counsel’s declaration fails to provide facts which establish that Plaintiff was able to attend the May 11, 2018 physical examination which Defendant had scheduled. While counsel declares that Plaintiff failed to notify Defendant that Plaintiff would not attend the examination scheduled for May 11, 2018 and that Plaintiff did not appear at the physical examination (Id. ¶ 9), this does not establish that Plaintiff was able to attend the May 11, 2018 examination.

The Court also notes that the Court ordered Plaintiff to undergo a physical examination with Dr. Nagelberg by June 1, 2018. The instant motion was served on May 23, 2018 and filed on May 24, 2018, before the June 1, 2018 deadline. Thus, the instant motion was filed prematurely. Notably, Counsel’s declaration fails to provide why the examination could not have been scheduled for a date that was after May 11, 2018 but on or before June 1, 2018. Additionally, the moving papers fail to cite authority which provides that a presumption of an

ability to comply exists unless Plaintiff produces evidence otherwise. Thus, counsel’s declaration fails to establish that Plaintiff was able to comply with the court order by attending the medical examination scheduled for May 11, 2018.

iv. Willful Disobedience

Since counsel’s declaration fails to establish that Plaintiff was able to comply with the court’s order by attending either the May 11, 2018 medical examination or another examination scheduled on or before June 1, 2018, the declaration fails to establish that Plaintiff willfully disobeyed the Court’s order. As noted before, this motion was filed before the deadline for Plaintiff to comply with the Court’s order expired. Furthermore, except for the conclusory allegation that Plaintiff’s failure to attend the examination was willful and without substantial justification, there are no facts in counsel’s declaration which show that Plaintiff refused to attend the medical examination or any other proposed examination. The mere fact that Plaintiff did not attend the May 11, 2018 examination does not amount to willful disobedience.

CONCLUSION

The Court finds that Defendant’s counsel’s declaration fails to allege facts which establish that Plaintiff was able to comply with the order he disobeyed and that Plaintiff willfully disobeyed the order. Thus, the declaration fails to provide sufficient facts to establish the essential elements required to find a person in contempt. The motion to find Plaintiff in contempt of court and to dismiss the action is DENIED.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 28, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court