Case Number: BC633253 Hearing Date: March 05, 2018 Dept: 46

Case Number: BC633253
CREDIT CARD DATA SERVICES INC VS TIFFANY BAE

Filing Date: 09/08/2016
Case Type: Othr Breach Contr/Warr

03/05/2018
Ex Parte Motion(FOR SANCTIONS)

TENTATIVE RULING

Motion for terminating sanctions is DENIED and the request for sanctions is DENIED.

DISCUSSION

The motion is pursuant to CCP § 2023.030 for an order finding Defendant/Cross-Complainant (“D/X-C”) Bae in contempt of an operative protective order, for sanctions in the amount of $8,120.00, and for terminating sanctions. D/X-C Bae also seeks sanctions in the amount of $4,337.50.

CCP § 2023.030 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

(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.”

CCP § 1209(a)(5) defines disobedience of a court order as contempt. CCP § 1211 states, in relevant part:

“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.”

CCP § 1212 states:

“When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause.

CCP § 1218(a) states as follows:

“Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.”

CCP § 177.5 states as follows:

“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both.

Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”

Local Rule 3.10 reads:

“The court may impose appropriate sanctions for the failure or refusal to comply with the rules in this chapter, including the time standards and/or deadlines, and any court order made pursuant to the rules. Counsel are directed to Code of Civil Procedure sections 128, 128.7, 177.5, 575.2, 583.150, 583.430, 2016.010-2036.050, Government Code section 68608, and California Rules of Court, rule 2.30. The sanctions may be imposed on a party and, if appropriate, on counsel for that party.”

Local Rule 3.11 reads, in pertinent part:

“…Indirect contempts may be heard in the department to which the case is assigned or, if the department cannot hear the contempt and transfer is required by law, that court may transfer the contempt proceeding to (1) the appropriate writs and receivers department, if it is a Central District case, or (2) the supervising judge of the district, if it is a case filed in another district.

(a) Order to Show Cause. Although Code of Civil Procedure section 1212 permits a warrant of attachment against the person charged with contempt, the standard procedure is section 1212’s alternative method of issuance of an order to show cause (“OSC”) re: contempt. An OSC will issue if the affidavit is sufficient, and the OSC must then be personally served on the accused person. The OSC may issue upon ex parte application, but only if the requesting party has complied with the notification requirements of California Rules of Court, rule 3.1204. If the accused person is served with the OSC and fails to appear, the court may issue a body attachment.

(b) Trial. The hearing on the OSC re: contempt is in the nature of a quasi-criminal trial. The accused person has the right to appointed counsel, to remain silent, to confront and cross-examine witnesses, and to be proven guilty beyond a reasonable doubt. The only major difference between contempt and a criminal trial is that the accused person has no right to a jury. The moving party must appear for the trial with witnesses prepared to testify unless the accused person stipulates in writing that the moving party’s declarations will constitute the case-in-chief against him or her. If there is no stipulation, the parties should stipulate that the moving parties’ declarations will constitute the direct testimony of each declarant, with the declarant then subject to cross-examination.

(c) Punishment. If the court finds the accused person guilty, the court may impose a fine of up to $1,000, imprison the person for up to five days, or both, for each act of contempt. (Code Civ. Proc., § 1218.) When the contempt consists of the omission to perform an act which is yet in the power of the person to perform, the court may order that the person be imprisoned until the act is performed. (Code Civ. Proc., § 1219.)

Contempt proceedings are quasi-criminal in nature and require personal service on the refusing party, whether or not he or she is represented by counsel. An order to show cause (OSC) is issued by the court commanding the refusing party to appear and justify the failure to obey. See ¶8:612 ff.… Although the statute does not make this clear, a contempt sanction requires proof of willful failure to obey. A party shown unable to comply (e.g., as the result of illness) is not “disobedient” and cannot be held in contempt. Also, if the failure was inadvertent, ordinarily no remedy of any kind is available against the witness. [See CCP § 1991; Chapman v. Sup.Ct. (1968) 261 CA2d 194, 200, 67 CR 842, 846—finding of contempt reversed where no evidence of willful disobedience to subpoena; and ¶8:611].” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:2441-42.

At the outset, it should be noted that Local Rule 3.11 requires the formal issuance of an OSC re: contempt, which must then be personally served upon the accused persons. Neither of those things have happened. Therefore, contempt sanctions cannot be issued at this time.

The subject of this motion is a short span of time in a deposition taken on 1/30/18. The deposition was in progress when, at 10:43 am, D/X-C Bae walked in. (Declaration of Sally S. Chan [hereinafter “Chan Dec.”] Exhibit 3). Counsel for P/X-D immediately objected on the basis that there were documents designated “highly confidential” (and thus reserved for counsel’s eyes only) under the operative protective order on the table at which D/X-C Bae sat down. (Id.). Counsel engaged in a brief discussion, lasting just long enough for them to insult one another thoroughly, over whether the documents were highly confidential or not, after which discussion lunch was called. (Id.). At this point, D/X-C Bae left the deposition, not to return. (Id. ¶ 7). While she had been in the deposition, D/X-C Bae looked at the stack of documents. (Declaration of James C. Huber [hereinafter “Huber Dec.”] ¶ 9). There is no testimony that she picked them up, rifled through them, or examined them in any way other than simply looking at an existing stack.

This motion appears to the court to be an overreaction. This litigation has been hotly contested, and since the main subject of the case is information, it is understandable that P/X-D should be extremely sensitive about disclosures. Furthermore, D/X-C’s counsel has conceded that she misunderstood the posture of those documents, and insofar at least, was in error. But that error does not amount to a discovery abuse.

What happened was that D/X-C came to a deposition she had a right to attend, sat down at the table, and looked at the stack of papers in front of her attorney. She was not the deponent, and there is no indication she did anything other than look, as any ordinary person would. And when documents are in a stack it is difficult to “review” or “study” or otherwise glean their contents in any real respect.

There is no reason to suppose that any technical violation of the protective order was willful or abusive enough to warrant sanctions.

P/X-D is within its rights to police the boundaries of the protective order, and D/X-C’s counsel ought to be more careful.

The deposition transcript reveals a rapid and somewhat distressing descent from civility on the part of counsel. This is not a situation where the court finds sanctions appropriate.

IT IS SO ORDERED:

Frederick C. Shaller, Judge