2012-00130439-CU-MC

The National Grange vs. The California State Grange

Nature of Proceeding: Motion for Issuance of Order to Show Cause Re: Contempt

Filed By: Serlin, Mark A.

Plaintiffs-in-Intervention the California State Grange and Ed Komski’s (collectively, “CSG”) Motion for Issuance of Order to Show Cause Re: Contempt directed to Defendants California State Guild, Robert McFarland, Kathy Bergeron, Cheri Bunker, Sylvia Sloan, and Leo T. Bergeron of the California Guild is DENIED.

CSG’s Request for Judicial Notice (“RJN”), which attaches prior court filings in this action (Exhs. A-C), is unopposed and is GRANTED.

Code of Civil Procedure §§ 1209 et seq. provides this Court with the power to punish acts which are in “disobedience of any lawful . . . order of the court.” (Code Civ. Proc.

§ 1209(a)(5); see also Pacific Telephone and Telegraph Co. vs. Sup. Ct. (1968) 265

Cal.App.2d 370 (section 1209 contempt proceedings are special proceedings, criminal in character and intended to implement the inherent power of the court to enforce its lawful orders).)

Code of Civil Procedure § 1211 provides that when contempt is “indirect”; that is, not committed in the immediate view and presence of the court, an affidavit shall be presented to the court of the facts constituting the contempt. For this purpose, declarations can be used in place of affidavits. (Code Civ. Proc. § 2015.5.) The declarations “need only make a prima facie showing of the elements of contempt.” ( Crawford v. WCAB (1989) 213 Cal.App.3d 156, 169.) The declarations must show: (1) the rendition of a valid order; (2) the respondent’s knowledge of the order; and (3) non-compliance. (Moss v. Sup. Ct. (1998) 17 Cal.4th 396, 427.)

Here, based on the evidence filed with the opening Memorandum of Points and Authorities, the Court finds that these conditions have not been satisfied. The opening Memorandum of Points and Authorities does not attach admissible evidence of non-compliance with the underlying Order.

First, as argued in the Guild’s Opposition filed on July 27, 2018, because CSG’s Motion is based on the argument that the Receiver, Robert Greeley, has not received certain items that the Order required the Guild to provide to him, the opening Memorandum of Points and Authorities should have been supported by admissible evidence from Receiver Robert Greeley reflecting what items he believes he has not received. However, no declaration from Receiver Robert Greeley was filed with the opening Memorandum of Points and Authorities. Instead, CSG chose to file Receiver Robert Greeley’s declaration for the first time with its Reply.

The Court agrees with the Guild that only Receiver Robert Greeley can give testimony based on his own personal knowledge regarding which items have or have not been turned over to him. (Evid. Code §§ 403(a)(2); 702(a); People v. Valencia (2006) 146 Cal.App.4th 92, 103-04 (“[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”).)

On all the facts and circumstances here, the Court in its discretion will not consider such late-provided evidence. In general, a moving party is not permitted to submit new facts and evidence in their reply papers. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308 (trial court did not err in declining to consider new evidence filed with reply in support of summary judgment motion).) This is also the rule outside the summary judgment context: “[t]he general rule of motion practice, which applies here [in the anti-SLAPP motion context], is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538; Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 (in preliminary injunction proceeding, “the trial court had discretion whether to accept new evidence with the reply papers,” and the trial court did not err in considering the newly filed evidence).) The Guild raised these and similar objections to the late-filed evidence in a separate Objection filed on August 6, 2018.

The Court finds that CSG’s decision to file key evidence — Receiver Robert Greeley’s declaration — with its Reply instead of its opening brief has deprived the opposing parties of a full and fair opportunity to respond to such evidence. This alone suffices as grounds to deny the motion.

The motion is also denied for a second, independent reason: moving party CSG has not filed any admissible evidence showing that each individual against whom the contempt motion is directed had (1) knowledge of the underlying order and (2) has not complied with it.

In this regard, CSG’s motion ultimately seeks a contempt ruling as against not only the California State Guild, but also as against individuals Robert McFarland, Kathy Bergeron, Cheri Bunker, Sylvia Sloan, and Leo T. Bergeron of the California Guild. Except perhaps with respect to Mr. McFarland, the moving papers do not present the Court with any evidence specifically regarding any of these individuals. Yet moving party CSG must provide evidence that each individual: (1) had knowledge of the order and (2) has not complied with it. The underlying order of March 21, 2018, does not name any of these individuals specifically. The Court cannot direct individuals to show cause why they should not be held in contempt without some evidence connecting the individuals to the underlying order in the first place, as well as evidence of the individuals’ knowledge of the order and their non-compliance with it.

Accordingly, the motion is DENIED.

Evidentiary Objections

The Court agrees with the Guild that none of the declarations filed with the moving papers convey personal knowledge regarding what items have, and have not, been provided to the Receiver. At best, the declarants indicate that “[b]ased on my communications with the Receiver . . .” certain items have not been given to the Receiver (see e.g., Declaration of Ed Komski (“Komski Decl.”) ¶ 3); or that “[b]ased on advice which I received from receiver Robert C. Greeley that he had not obtained turnover of various items . . .” (Declaration of Mark Serlin (“Serlin Decl.”) ¶ 2). The various objections based on lack of foundation, lack of personal knowledge, and hearsay regarding the items the Receiver has received (or has not received) are therefore SUSTAINED.

The Court need not and did not reach the other objected-to evidence in ruling on this motion.