Opinion

Snow Joe, LLC v. Linemart Inc.

Court
District Court, C.D. California
Filed
Jul 18, 2022
Cited by
0 cases
Authority
More cited than 16.4%

noting that a settlement functions as a court order

How later courts described this case

  • noting that a settlement functions as a court order
  • compensatory fine must 26 “be based upon evidence of complainant’s actual loss”
  • “[T]he party asserting the impossibility 13 defense must show categorically and in detail why he is 14 unable to comply.”
  • concluding that although plaintiff failed to 21 provide declarants’ names in initial disclosures, 22 “[d]efendant cannot say it is surprised that [p]laintiff 23 would submit declarations from its members” establishing 24 standing to bring suit

Written by the judges who cited it.

The opinion

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 1 of 21 Page ID #:574

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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CV20-00587-RSWL-RAOx

11 SNOW JOE, LLC,

ORDER re: Plaintiff’s

12 Plaintiff,

Motion for Contempt and

13 v. Enforcement of Settlement

[55]

14

LINEMART INC., et al.,

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Defendants.

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18 Plaintiff Snow Joe, LLC (“Plaintiff”) brought the

19 instant Action against Defendants Linemart, Inc.;

20 Linemart NJ, Inc.; Shenzhen Sailvan Network Technology

21 Ltd.; and Shenzhen Sailvan Ecommerce Co., Ltd.

22 (collectively, “Defendants”) alleging: (1) direct and

23 contributory false advertising under 15 U.S.C.

24 § 1125(a)(1)(B); and (2) violations of California

25 Business and Professions Codes §§ 17200 and 17500.

26 Currently before the Court is Plaintiff’s Motion for

27 Contempt and Enforcement of Settlement [55] (“Motion”).

28 Having reviewed all papers submitted pertaining to this

1

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 2 of 21 Page ID #:575

1 Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the

2 Court GRANTS IN PART and DENIES IN PART Plaintiff’s

3 Motion.

4 I. BACKGROUND

5 A. Factual Background

6 1. Plaintiff’s Underlying Complaint

7 Plaintiff sells pressure washers online, including

8 through Amazon.com (“Amazon”). Compl. ¶¶ 14-16, 21, ECF

9 No. 1. Defendants sell electric pressure washers that

10 directly compete with Plaintiff’s. Id. ¶ 22.

11 Plaintiff’s Complaint alleged that Defendants falsely

12 advertised their pressure washers’ Pounds Per Square

13 Inch (“PSI”) pressure ratings and adherence to European

14 Conformity (“CE”) safety standards. Id. ¶¶ 26-28.

15 2. Parties’ Settlement and Injunction Order

16 On November 7, 2021, Plaintiff and Defendants

17 entered into a Settlement Agreement (the “Original

18 Agreement”), relating specifically to HOMDOX-branded

19 (“Homdox”) pressure washers. See generally Notice of

20 Settlement of Entire Action, ECF No. 47. The Original

21 Agreement required Defendants, inter alia, to: (1)

22 immediately submit their pressure washers for third-

23 party testing and label them according to the results;

24 (2) identify all their pressure washers, including the

25 model numbers, Amazon Standard Identification Numbers

26 (“ASINs”), and Standard Product Numbers (“SPUs”); and

27 (3) retain a third-party service to monitor and remove

28 inaccurate listings. Mot. for Contempt Ex. 1 (“Original

2

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 3 of 21 Page ID #:576

1 Agreement”), ECF No. 55-3. Pursuant to the Original

2 Agreement, the Court entered a Permanent Injunction

3 Order (“Original Injunction”) on November 17, 2021,

4 enjoining Defendants from falsely advertising their

5 pressure washers.1 See generally Permanent Inj., ECF

6 No. 49.

7 On December 20, 2021, Plaintiff notified Defendants

8 of their breach of each provision of the Original

9 Agreement. Pl.’s Mem. of P. & A. (“Mot.”) 3:11-16, ECF

10 No. 55. The parties then entered into an Amended

11 Settlement Agreement (“Amended Agreement”) on February

12 17, 2022.2 Id. at 3:18-22. Accordingly, on February

13 18, 2022, the Court entered an Amended Permanent

14 Injunction Order (“Amended Injunction”). See generally

15 Am. Permanent Inj., ECF No. 54.

16 On February 28, 2022, Plaintiff sent Defendants

17 another notice of breach of the Amended Agreement.3

18 1 The Original Injunction also expressly retained

jurisdiction over the matter to enforce the terms of the Original

19

Agreement. Permanent Inj. 2:25-3:2.

20 2 The Amended Agreement expanded the scope of the Original

Agreement to include Defendants’ MRLIANCE-, SYNCLL-, and TEANDE-

21

branded pressure washers, and it also added a provision allowing

22 for recovery of attorneys’ fees for the enforcement of the

agreement. Decl. of Christopher Q. Pham in Supp. of Mot. (“Pham

23 Decl.”) Ex. 2 ¶ 5, ECF No. 55-4. It further provided that any

terms in the Original Agreement not modified by the Amended

24 Agreement remain in full force. Id.

25 3 Also on February 28, 2022, Defendants provided Plaintiff

with a declaration identifying the model numbers, ASINs, and SPUs

26 for all of Defendants’ pressure washers, as well as Defendants’

Amazon account names, as required by the Settlement Agreements.

27 Mot. 4:13-23. The same day, Defendants submitted five Homdox

pressure washers for testing; the testing results were not

28

completed until March 31, 2022. Id. at 5:5-11.

3

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 4 of 21 Page ID #:577

1 Mot. Ex. 6, ECF No. 55-9. On March 10, 2022, Plaintiff

2 captured evidence of three Amazon listings for pressure

3 washers under Defendants’ accounts advertising false PSI

4 claims. Mot. 8:7-11. The parties then engaged in meet-

5 and-confer sessions on March 11, March 21, and April 13,

6 2022. Id. at 4:6-9. Later, on April 19, 2022,

7 Plaintiff purchased a pressure washer from one of

8 Defendants’ confirmed Amazon listings that also

9 contained false PSI claims. Id. at 9:21-10:28. The

10 parties then held a fourth meet-and-confer session on

11 April 27, 2022. Id. at 4:6-9.

12 B. Procedural Background

13 Plaintiff filed the instant Motion [55] on April

14 28, 2022. Defendants filed their Opposition [56] on May

15 9, 2022, and Plaintiff replied [58] on May 16, 2022.

16 II. DISCUSSION

17 A. Legal Standard

18 “[C]ourts have inherent power to enforce compliance

19 with their lawful orders through civil contempt.”

20 Spallone v. United States, 493 U.S. 265, 276 (1990);

21 Shillitani v. United States, 384 U.S. 364, 370 (1966).

22 Civil contempt consists of a party’s disobedience to a

23 specific and definite court order by failure to take all

24 reasonable steps within the party’s power to comply. In

25 re Dual-Deck Video Cassette Recorder Antitrust Litig.,

26 10 F.3d 693, 695 (9th Cir. 1993). “The moving party has

27 the burden of showing by clear and convincing evidence

28 that the contemnors violated a specific and definite

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Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 5 of 21 Page ID #:578

1 order of the court. The burden then shifts to the

2 contemnors to demonstrate why they were unable to

3 comply.” Stone v. City & County of San Francisco, 968

4 F.2d 850, 856 n.9 (9th Cir. 1992) (citations omitted).

5 A person should not be held in contempt if his

6 action “appears to be based on a good faith and

7 reasonable interpretation of the [court's order].”

8 Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689

9 F.2d 885, 889 (9th Cir. 1982). Nevertheless, “there is

10 no good faith exception to the requirement of obedience

11 to a court order.” In re Dual-Deck, 10 F.3d at 695.

12 “[C]ivil contempt may be established even though the

13 failure to comply with the court order was

14 unintentional.” Perry v. O’Donnell, 759 F.2d 702, 705

15 (9th Cir. 1985). A showing of willfulness is not a

16 necessary element for civil contempt because while the

17 purpose of criminal contempt is punishment, the purpose

18 of civil contempt is remedial. Id.

19 B. Analysis

20 1. Evidentiary Objections

21 Plaintiff objects to the Declaration of XiaoShuang

22 Zheng in Opposition to the Motion for Contempt and

23 Enforcement of Settlement (“Zheng Declaration”), along

24 with its accompanying exhibits. See generally Evid.

25 Objs. to Zheng Decl. and Exs. 1-33, ECF No. 57. In

26 particular, Plaintiff argues that the declaration should

27 be excluded in its entirety because Zheng was not

28 identified as a potential witness in Defendant’s initial

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Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 6 of 21 Page ID #:579

1 disclosures. Id. Parties are required to provide in

2 their initial disclosures the names of individuals

3 likely to have discoverable information related to the

4 case. Fed. R. Civ. P. 26(a). Failure to do so

5 prohibits the party from using that witness to supply

6 evidence on a motion, except where the failure was

7 substantially justified or harmless. Fed. R. Civ. P.

8 37(c)(1). In determining whether to exclude evidence

9 under Rule 37, courts consider factors such as the

10 surprise to the party against whom the evidence would be

11 offered, the ability of that party to cure the surprise,

12 and the importance of the evidence. Dey, L.P. v. Ivax

13 Pharm., Inc., 233 F.R.D. 567, 571 (C.D. Cal. 2005).

14 Given that the purpose of the Zheng Declaration was

15 limited to providing evidence to rebut a finding of

16 contempt in response to Plaintiff’s Motion, the Court

17 finds that Defendants’ failure to identify Zheng in its

18 initial disclosures was harmless. See S.F. Baykeeper v.

19 West Bay Sanitary Dist., 791 F. Supp. 2d 719 (N.D. Cal.

20 2011) (concluding that although plaintiff failed to

21 provide declarants’ names in initial disclosures,

22 “[d]efendant cannot say it is surprised that [p]laintiff

23 would submit declarations from its members” establishing

24 standing to bring suit). Plaintiff’s objection on this

25 basis is therefore OVERRULED.

26 Plaintiff also objects to the Zheng Declaration and

27 the accompanying exhibits for lack of personal knowledge

28 and on hearsay grounds. The Court similarly OVERRULES

6

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 7 of 21 Page ID #:580

1 these objections. Zheng has certified under oath that

2 the emails were sent by employees of Defendants in an

3 effort to comply with the injunction and settlement

4 agreement, and that he has personal knowledge of all

5 facts stated in the Zheng Declaration. See Zheng Decl.

6 ¶¶ 1, 3, 6. Moreover, while the emails attached as

7 exhibits contain out-of-court statements, they are not

8 being offered for the truth of the matters stated within

9 the emails. Rather, they are being offered to show

10 Defendants’ attempts to comply with the injunction and

11 why those attempts have been unsuccessful. See Bates v.

12 Medtronic, Inc., No. EDCV 14-02643-VAP (KKx), 2016 WL

13 446923, at *8 (C.D. Cal. 2016) (“If an out-of-court

14 statement is not introduced for the truth of the matter

15 asserted, but to establish the effect on the listener or

16 a basis in fact for the listener’s subsequent actions,

17 the statement is not hearsay.”).

18 Plaintiff’s remaining objections are also

19 OVERRULED. The Court has considered Plaintiff’s

20 arguments and relies only on facts it considers to be

21 reliable and admissible. See F.T.C. v. Data Med. Cap.,

22 Inc., No. SA CV 99-1266 AHS (EEx), 2010 WL 1049977, at

23 *28 (C.D. Cal. Jan. 15, 2010).

24 2. Local Rule 7-3

25 Local Rule 7-3 requires that “counsel contemplating

26 the filing of any motion shall first contact opposing

27 counsel to discuss thoroughly, preferably in person, the

28 substance of the contemplated motion and any potential

7

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 8 of 21 Page ID #:581

1 resolution.” C.D. Cal. L.R. 7-3. The purpose of Local

2 Rule 7-3 is to give all parties a full understanding of

3 the relevant disputes and to allow nonmovants time to

4 evaluate proposed motions and oppose it or reach

5 agreement. Fitzgerald v. City of Los Angeles, 485 F.

6 Supp. 2d 1137, 1140 (C.D. Cal. 2007). Courts have

7 “considerable latitude” in enforcing Local Rule 7-3.

8 Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir.

9 2002). A party’s “failure to comply with the Local

10 Rules does not automatically require the denial of a

11 party's motion . . . particularly where the non-moving

12 party has suffered no apparent prejudice.” CarMax Auto

13 Superstores Cal. LLC v. Hernandez, 94 F. Supp. 3d 1078,

14 1088 (C.D. Cal. 2015).

15 Here, the parties engaged in four meet-and-confer

16 sessions before Plaintiff filed the instant Motion.

17 Mot. 4:6-8. In its Motion, Plaintiff plainly stated

18 that these four meetings had occurred pursuant to Local

19 Rule 7-3. Id. at 2:18-19. Defendants argue that these

20 meetings were insufficient because Plaintiff did not

21 mention Defendant’s alleged mislabeling of products

22 during the meetings, including its mislabeling of the

23 product that Plaintiff purchased as evidence in support

24 of the Motion. Opp’n 5:4-7, ECF No. 56.

25 Despite Defendants’ contentions to the contrary,

26 Plaintiff’s counsel satisfied the requirements of Local

27 Rule 7-3. Plaintiff made numerous attempts to inform

28 Defendants of their violations during the meet-and-

8

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 9 of 21 Page ID #:582

1 confer sessions. Reply in Supp. of Mot. (“Reply”) 4:2-

2 8, ECF No. 58; see also Mot. 3:11-17, 4:2-6. Moreover,

3 Defendants were clearly on notice of the present Motion

4 and were able to timely file an Opposition. Thus, any

5 prejudice to Defendant from a potential defect in the

6 meetings is minimal. See Fitzgerald, F. Supp. 2d at

7 1140 (finding that nonmovants suffered no prejudice

8 because they had adequate time to respond to the

9 motion).

10 3. Defendants Is in Contempt of Court Orders

11 To establish that Defendants should be held in

12 civil contempt here, Plaintiff first must demonstrate by

13 clear and convincing evidence that Defendants violated a

14 court order “beyond substantial compliance, and that the

15 violation was not based on a good faith and reasonable

16 interpretation of the [order].” Wolfard Glassblowing

17 Co. v. Vanbragt, 118 F.3d 1320, 1322 (9th Cir. 1997).

18 If Plaintiff meets this burden, the burden then shifts

19 to Defendants to show that they “took every reasonable

20 step to comply.” Stone, 968 F.2d at 856 n.9. For the

21 reasons set forth below, the Court holds Defendants in

22 civil contempt and GRANTS in part and DENIES in part

23 Plaintiff’s Motion.

24 a. Defendants Violated the Amended Injunction

25 and Settlement Agreements

26 Where a party is enjoined from falsely representing

27 a products’ adherence to certain testing standards, the

28 party’s disregard for the testing standards can support

9

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 10 of 21 Page ID #:583

1 a finding of contempt. See Gen. Signal Corp. v.

2 Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986).

3 Even where a defendant’s violative labeling occurs by

4 mistake, courts have found contempt where a reasonable

5 inspection should have revealed the misrepresentation.

6 Id.

7 Here, Plaintiff has demonstrated by clear and

8 convincing evidence that Defendants have repeatedly

9 violated the Amended Injunction. The Amended Injunction

10 prohibited Defendants from misrepresenting their

11 pressure washers’ PSI capabilities and CE compliance,

12 and Plaintiff provided evidence of Defendants’ Amazon

13 listings containing false PSI claims. See Decl. of Lee

14 Ann Sowers in Supp. of Mot. (“Sowers Decl.”) Exs. 7-9,

15 ECF Nos. 55-11, 55-12, 55-13. The pressure washer

16 Plaintiff purchased from Defendants also included

17 contradicting PSI claims between the product label,

18 instruction manual, and advertisement for the product.

19 See Sowers Decl. Exs. 10-12, ECF Nos. 55-14, 55-15, 55-

20 16. Moreover, all three of these PSI claims were

21 inaccurate based on the third-party test results.4 Id.

22 Additionally, Plaintiff has shown that Defendants

23 are in violation of paragraphs 3.a., 3.c., and 3.e. of

24 the Settlement Agreements, which further supports a

25

4 Defendants attack Plaintiff’s evidentiary purchase by

26 claiming the pressure washer may not have been sold by

Defendants. Id. at 6:7-8. However, Defendants themselves

27 confirmed that the account, ASIN, and model number associated

with the purchased product belonged to Defendants. Pham Decl.

28

Ex. 3, ECF No. 55-5.

10

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 11 of 21 Page ID #:584

1 finding of contempt.5 Paragraph 3.a. of the Original

2 Agreement required Defendants to immediately submit all

3 their Homdox power washers for third-party testing. See

4 Original Agreement ¶ 3.a. The Amended Agreement

5 expanded this provision to include Defendants’ MRLIANCE,

6 SUYNCLL, and TEANDE pressure washer brands. See Amended

7 Agreement ¶ 3. However, Defendants have not submitted

8 any MRLIANCE-, SUYNCLL-, or TEANDE-branded models for

9 testing. Reply 7:14-18, ECF No. 58. Defendants only

10 submitted five models of Homdox pressure washers for

11 testing and did so eleven days late. Pham Decl. Exs. 3-

12 4, ECF Nos. 55-5, 55-6.

13 Defendants also breached paragraph 3.c. of the

14 Original Agreement, which requires Defendants to base

15 all PSI claims on the testing results found in paragraph

16 3.a. See Pham Decl. Ex. 1. Because Defendants did not

17 submit the majority of their electric pressure washers

18 for testing, there is no basis upon which Defendants

19 could make any accurate PSI claims in their product

20 labeling. Even considering the five Homdox models that

21 Defendants did submit for testing, at least one model

22

5 The Settlement Agreements spell out clear procedures to

23 ensure Defendants’ compliance with the Amended Injunction.

Further, the Court expressly retained jurisdiction to enforce the

24

terms of the Settlement Agreements. Am. Permanent Inj. 2:25-28;

25 Flanagan v. Arnaiz, 143 F.3d 540, 544 (9th Cir. 1998). Thus,

violations of the Settlement Agreements may constitute

26 independent grounds for contempt. See Plummer v. Chem. Bank, 668

F.2d 654, 659 (2d Cir. 1982) (holding that provisions of a

27 settlement operate as an injunction); see also Buckhannon Board &

Care Home v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598,

28

604 (2001) (noting that a settlement functions as a court order).

11

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 12 of 21 Page ID #:585

1 contained false PSI claims. Mot. 7:16-28.

2 Moreover, Paragraph 3.e. of the Original Agreement

3 obligates Defendants to retain a third-party monitoring

4 service to monitor the online listings of Defendants’

5 electric pressure washers. Pham Decl. Ex. 1 ¶ 3.e.

6 Defendants agreed to authorize the third-party

7 monitoring service to remove listings containing false

8 or unverified PSI ratings.6 However, in the seven

9 months since the parties entered the Original Agreement,

10 Defendants have not provided any proof that they

11 retained a third-party monitor. Had they done so,

12 Defendants likely could have discovered and removed the

13 false, unverified, or inconsistent PSI claims of which

14 Defendants claim they were unaware. Since a third-party

15 monitor could have discovered Defendants’ false

16 advertisements, Defendants’ failure to modify or remove

17 their Amazon listings is contemptuous. See Gen. Signal

18 Corp., 787 F.2d at 1379.

19 ///

20

21 6 Defendants blame their failure to retain a third-party

monitor on the fact that they discussed an alternative solution

22 to this requirement with Plaintiff’s counsel. Opp’n 7:23-28.

However, the Settlement Agreements include an integration clause

23 and state that any amendment or modification to the Settlement

Agreements must be written and signed to be binding. Ex. 1 ¶ 10,

24

ECF No. 55-3; Ex. 2 ¶ 11, ECF No. 55-4. Regardless of any

25 discussion between the parties, no signed writing exists to

modify the third-party monitor requirement. The parties must

26 therefore be held to the terms of the written and signed Amended

Agreement. See Cal. Civ. Code § 1698(c) (“Unless the contract

27 otherwise expressly provides, a contract in writing may be

modified by an oral agreement supported by new consideration.”)

28

(emphasis added).

12

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 13 of 21 Page ID #:586

1 Defendants have repeatedly failed to satisfy their

2 obligations under both the Amended Injunction and the

3 Settlement Agreements. Therefore, the Court finds that

4 Defendants have violated court orders beyond substantial

5 compliance.

6 b. Defendants Did Not Take Reasonable Steps to

7 Comply

8 To defend against Plaintiff’s prima facie showing

9 of contempt, Defendants must demonstrate that they took

10 “all reasonable steps” to substantially comply with the

11 order but compliance was nevertheless impossible. Gen.

12 Signal Corp., 787 F.2d at 1379 (quoting Vertex Distrib.

13 V. Falcon Foam Plastics, Inc., 689 F.2d 891–92). “If a

14 violating party has taken all reasonable steps to comply

15 with the court order, technical or inadvertent

16 violations of the order will not support a finding of

17 civil contempt.” Id. (internal quotation marks and

18 citations omitted).

19 Defendants have not put forth sufficient evidence

20 of its attempts to substantially comply with the Amended

21 Injunction or the Settlement Agreements. Defendants’

22 emails to Amazon do not demonstrate substantial

23 compliance because the email exchanges took place after

24 Defendants had already been in violation of the Original

25 Agreement for months, and most emails were sent after

26 the filing of this Motion. See Zheng Decl. Exs. 1-33,

27 ECF Nos. 56-2, 56-3, 56-4, 56-5, 56-6. Other than these

28 untimely emails, Defendants provide no evidence of

13

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 14 of 21 Page ID #:587

1 affirmative steps taken to comply with the Amended

2 Injunction or Settlement Agreements. Cf. Harbor Breeze

3 Corp. v. Newport Landing Sportfishing, Inc., No.

4 SACV1701613CJCDFMX, 2020 WL 816135, at *1 (C.D. Cal.

5 Jan. 23, 2020) (declining to hold defendants in contempt

6 where defendants took affirmative steps to comply, and

7 defendants’ only violation was a technical error).

8 Nor have Defendants shown that compliance with the

9 Amended Injunction was impossible. Amazon never took

10 more than one day to respond to Defendants’ inquiries,

11 despite Defendants’ claim that in some instances Amazon

12 would “state for days or weeks” that requested changes

13 were in process. Opp’n at 7:2-4; Zheng Decl. Exs. 1-33.

14 Defendants also allude to Amazon’s “web crawling”

15 algorithm, which allegedly causes listings “to revert

16 back to the old unchanged content.” Opp’n 6:4-7.

17 However, no evidence indicates that this so-called “web

18 crawling” algorithm actually affected Defendants’

19 listings, nor that Defendants were unable to simply

20 remove the listings altogether. Further, the changes

21 Defendants requested from Amazon still included PSI

22 claims that were all either unsubstantiated or higher

23 than the tested 1300 PSI rating. By requesting

24 modifications that still included false PSI claims,

25 Defendants have not only failed to show a reasonable

26 effort to comply with the Amended Injunction but have

27 also actively continued to violate it.

28 Defendants additionally claim to have experienced

14

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 15 of 21 Page ID #:588

1 challenges with employees due to COVID-19 lockdowns, but

2 Defendants do not indicate that these lockdowns made

3 compliance impossible. Opp’n 6:12-24. For instance,

4 Defendants do not argue that the lockdowns prevented

5 their employees from accessing the internet, nor that

6 the lockdowns prevented Defendants from manufacturing

7 and selling their pressure washers in a manner that

8 complies with the Amended Injunction. Id. Thus, while

9 Defendants may have experienced challenges due to COVID-

10 19, these challenges do not excuse their non-compliance.

11 See F.T.C. v. Affordable Media, 179 F.3d 228, 1241 (9th

12 Cir. 1999) (“[T]he party asserting the impossibility

13 defense must show categorically and in detail why he is

14 unable to comply.”).

15 While Defendants contend that they “have been as

16 diligent as possible in attempting to comply,” Opp’n at

17 6:12-14, conclusory statements about diligence alone do

18 not excuse their violations. Plaintiff has demonstrated

19 clear violations of the both the Amended Injunction and

20 the Settlement Agreements, and Defendants have failed to

21 meet their burden to show that they took all reasonable

22 steps to comply. This Court therefore holds Defendants

23 in contempt and ORDERS Defendants to comply with the

24 terms of the Amended Injunction and the Settlement

25 Agreements, namely paragraphs 3.a., 3.c., and 3.e.

26 4. Coercive and Compensatory Sanctions

27 Plaintiff’s Motion seeks sanctions against

28 Defendants to coerce their obedience and to compensate

15

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1 Plaintiff for damages resulting from Defendants’

2 behavior. Mot. 2:4-10. As for compensatory sanctions,

3 Plaintiff asks this Court to order Defendants to pay to

4 Plaintiff all profits received by Defendants from the

5 sale of their pressure washers in violation of the

6 Amended Injunction. Id. at 17:11-13.

7 “A court may wield its civil contempt powers for

8 two separate and independent purposes: (1) ‘to coerce

9 the defendant into compliance with the court’s order’;

10 and (2) ‘to compensate the complainant for losses

11 sustained.’” Shell Offshore Inc. v. Greenpeace, Inc.,

12 815 F.3d 623, 629 (9th Cir. 2016) (quoting United States

13 v. United Mine Workers of Am., 330 U.S. 258, 303-04

14 (1947)).

15 When imposing coercive sanctions, courts must

16 “consider the character and magnitude of the harm

17 threatened by continued contumacy, and the probable

18 effectiveness of any suggested sanction in bringing

19 about the result desired.” United Mine Workers, 330

20 U.S. at 304. Coercive fines are payable to the court,

21 rather than the movant. Id. Coercive sanctions often

22 take the form of a conditional daily fine. Shell

23 Offshore, 815 F.3d at 629; see, e.g., Whittaker Corp. v.

24 Execuair Corp., 953 F.2d 510, 617 (9th Cir. 1992)

25 (noting that coercive sanctions “are by their very

26 nature ‘conditional’ because they only operate if and

27 when the contumacy continues”). While courts may

28 exercise discretion in fashioning an amount of fines,

16

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 17 of 21 Page ID #:590

1 see United Mine Workers, 330 U.S. at 305, the

2 conditional fine should afford the contemnor an

3 opportunity to purge the fine by complying with the

4 court order. Shell Offshore, 815 F.3d at 629. In

5 determining the amount of the fine, courts should also

6 “consider the amount of [the contemnor’s] financial

7 resources and the consequent seriousness of the burden”

8 to the contemnor. United Mine Workers, 330 U.S. at 304.

9 Here, Defendants’ continued contumacy poses an

10 ongoing threat to Plaintiff as a direct competitor.

11 Seven months have passed since the Original Agreement

12 and Permanent Injunction were entered, and four months

13 have passed since the Amended Agreement and Amended

14 Injunction were entered. Defendants’ contumacy has

15 continued through this entire period. See Mot. 1:3-10.

16 While Plaintiff has not suggested an amount of

17 coercive sanctions to impose, a conditional daily fine

18 in the amount of $250 per day is appropriate here for

19 three reasons. First, a conditional daily fine would

20 likely induce Defendants’ compliance with the Amended

21 Injunction and the Settlement Agreements, given their

22 failure to comply in the absence of a coercive sanction.

23 Second, a conditional daily fine would provide

24 Defendants an opportunity to purge the fine by ceasing

25 their contemptuous conduct. See Shell Offshore, 815

26 F.3d at 629. Third, the amount of $250 per day is

27 warranted given the lack of information about

28 Defendants’ financial resources and given the

17

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 18 of 21 Page ID #:591

1 substantial magnitude of Defendants’ continued

2 contumacy. Arabian Gas & Oil Dev. Co. v. Wisdom Marines

3 Lines, S.A., No. 16-CV-03801-DMR, 2017 WL 4390184, at *7

4 (N.D. Cal. Oct. 3, 2017) (noting that a $250 per diem

5 fine was “well within the range of coercive per diem

6 fines issued by courts in this district for civil

7 contempt”); United States v. Gillies, No. CV-11-3623 CW

8 MEJ, 2013 WL 968244, at *2 (N.D. Cal. Feb. 22, 2013),

9 report and recommendation adopted, No. C 11-03623 CW,

10 2013 WL 968231 (N.D. Cal. Mar. 12, 2013) (imposing a

11 coercive daily fine of $250 against an individual).

12 Thus, this Court GRANTS Plaintiff’s request for coercive

13 sanctions and ORDERS Defendants to pay a daily fine of

14 $250, starting from the date of this Order, for each day

15 they remain in violation of the Amended Injunction and

16 the Settlement Agreements.

17 Unlike coercive sanctions, compensatory awards are

18 limited to “actual losses sustained as a result of the

19 contumacy.” Shuffler v. Heritage Bank, 720 F.2d 1141,

20 1148 (9th Cir. 1983). Compensatory awards are payable

21 to the party moving for contempt. United Mine Workers,

22 330 U.S. at 304. Here, Plaintiff has failed to provide

23 the Court with evidence as to sales it actually lost as

24 a direct result of Defendants’ contumacy. See United

25 Mine Workers, 330 U.S. at 304 (compensatory fine must

26 “be based upon evidence of complainant’s actual loss”);

27 see also Gen. Signal Corp., 787 F.2d at 1380 (denying a

28 compensatory fine where movant provided no evidence of

18

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 19 of 21 Page ID #:592

1 losses caused by non-movant’s contumacy). Lacking

2 evidence of losses attributable to Defendants’

3 contumacy, this Courts DENIES Plaintiff’s request for

4 compensatory sanctions.

5 5. Attorneys’ Fees

6 In addition to sanctions, Plaintiff seeks

7 attorneys’ fees and costs in the amount of $12,192.25

8 incurred in connection with bringing the instant Motion

9 and enforcing the Settlement Agreements. Mot. 17:14-16,

10 18:1-3. The Amended Agreement provides in Paragraph 5

11 that, in the event that either party breaches the

12 Settlement Agreements, the accused party “shall pay all

13 reasonable attorneys’ fees, costs and expenses incurred

14 by the prevailing Party in any civil action relating to

15 the enforcement of the Original Agreement, the Amended

16 Agreement, [and] the Amended Permanent Injunction.” Ex.

17 2 ¶ 5.

18 Courts have considerable discretion to award

19 attorneys’ fees. Fitzgerald v. City of Los Angeles,

20 No. CV 03–01876 DDP (RZx), 2009 WL 960825, at *3 (C.D.

21 Cal. April 7, 2009). Courts have awarded attorneys’

22 fees based on the terms of a settlement agreement where

23 an unambiguous provision in the settlement agreement

24 provided payment of attorneys’ fees and costs,

25 especially where it was likely that an agreement or

26 injunction “w[ould] need monitoring.” Id. at *6.

27 Additionally, because “[a]ttorneys’ fees frequently must

28 be expended to bring a violation of an order to the

19

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 20 of 21 Page ID #:593

1 court’s attention,” courts in civil contempt proceedings

2 may exercise discretion to decide whether an award of

3 attorneys’ fees is “appropriate as a remedial measure.”

4 Perry, 759 F.2d at 705.

5 Here, Plaintiff is entitled to attorneys’ fees

6 under the express terms of the Settlement Agreements.

7 However, Plaintiff has not submitted financial records,

8 such as billing statements, to establish the amount of

9 reasonable attorneys’ fees and costs beyond its bald

10 assertion that it incurred costs of $12,192.25 in

11 bringing this Motion. See Global Ampersand, LLC v.

12 Crown Eng'g & Constr., 261 F.R.D. 495, 502 (E.D. Cal.

13 2009) (citing Van Gerwen v. Guarantee Mut. Life Co., 214

14 F.3d 1041, 1045 (9th Cir. 2000)) (holding that a party

15 seeking an award of attorney’s fees “must submit

16 evidence to support the number of hours worked and the

17 rates claimed”). Thus, the Court GRANTS Plaintiff’s

18 request for attorneys’ fees and ORDERS Plaintiff to

19 provide supplemental briefing to establish the amount of

20 reasonable attorneys’ fees and costs.

21 III. CONCLUSION

22 Based on the foregoing, the Court GRANTS in part

23 and DENIES in part Plaintiff’s Motion for Contempt and

24 Enforcement of Settlement. Specifically, the Court

25 ORDERS Defendants to comply with the Amended Injunction

26 and the Settlement Agreements and cease their use of

27 false or unverified PSI claims. The Court also GRANTS

28 Plaintiff’s request for coercive sanctions and ORDERS

20

Case 2:20-cv-00587-RSWL-RAO Document 60 Filed 07/18/22 Page 21 of 21 Page ID #:594

1 Defendants to pay a daily fine of $250, starting from

2 the date of this Order, for each day they remain in

3 violation of the Amended Injunction and the Settlement

4 Agreements. The Court DENIES Plaintiff’s request for

5 compensatory sanctions. The Court additionally GRANTS

6 Plaintiff’s request for attorneys’ fees and ORDERS

7 Plaintiff to submit supplemental briefing to establish

8 the amount of reasonable attorneys’ fees and costs

9 within fourteen (14) days of this Order.

10 IT IS SO ORDERED.

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12 DATED: July 18, 2022 ______/_s/_ R_o_n_a_ld_ _S_.W__. L_e_w_______

HONORABLE RONALD S.W. LEW

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Senior U.S. District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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