Case Number: 19NWCV00244 Hearing Date: February 14, 2020 Dept: SEC

VIVERA PHARMACEUTICALS, INC. v. BLAINE HOLDING & DEVELIPMENT, LLC

CASE NO.: 19NWCV00244

HEARING: 02/14/2020

Calendar Matter#1

TENTATIVE ORDER

Plaintiff’s Motion for Contempt is DENIED. CCP §1209.

Moving Party to give Notice.

Plaintiff’s Request to Present Oral Testimony is DENIED. “Code of Civil Procedure section 1217 specifically provides that in matters of indirect contempt the court may examine witnesses for and against the alleged contemnor…. Hence a contempt proceeding is one where oral testimony is permitted by statute…. [¶] [T]he trial court [is] empowered to hear the matters before it upon declarations and to exclude oral testimony.” (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 484-485.)

On December 11, 2019, this Court issued an Order to Show Cause Re Contempt ordering Defendants to appear and show cause as to why: Defendants should not be held in contempt of court for willfully disobeying the Judgment of April 26, 2019, and November 25, 2019 Order issuing a temporary restraining order against Defendant BLAINE LABS.

The “[d]isobedience of any lawful judgment, order, or process of the court” constitutes contempt. (CCP §1209(a)(5).) When contempt is committed outside the presence of the Court, a proceeding is commenced by the filing of an affidavit charging the facts constituting contempt. (CCP §1211.) The factual predicates to a finding of contempt are: (1) the rendition of a valid order; (2) actual knowledge of the order; (3) ability to comply; and (4) willful disobedience. (Conn. v. Sup. Ct. (1987) 196 Cal.App.3d 774, 784.)

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).) In addition, a person who is subject to a court order as party to the action who is adjudged guilty of contempt for violating that court order may be ordered to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by that party in connection with the contempt proceeding. (Id.) 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.) Thus, “guilt must be

established beyond a reasonable doubt.” (Ross v. Superior Court of Sacramento County (1977) 19 Cal.3d 899, 913.)

Plaintiff argues that Defendants should be held in contempt where Defendants willfully disobeyed this Court’s Judgment of April 26, 2019 and Order of November 25, 2019.

In Opposition, Defendants argue: (1) that Defendant Robert Blaine and attorney Keith Greer were not served with the OSC re: Contempt and the charging affidavit; and (2) Defendants did not willfully violate the November 24, 2019 Order where Defendants ROBERT BLAINE, BLAINE LABS, and their attorneys’ “reasonable interpretation” of the November 25 Order was that the Order only required Blaine Labs to allow Vivera entry and access to the property of Building One in a way that did not interfere with Blaine Labs’ claim or right of possession.

A brief procedural history is as follows:

· In the unrelated, earlier filed, breach of contract case 19STCV05281, Judge Chalfant issued an Order granting in part, Plaintiff VIVERA’s request for a preliminary injunction on March 14, 2019. The Order indicates that the Blaine Defendants were to refrain from interfering with Vivera’s exclusive possession of the leased premises defined as 14,670 square feet of the North warehouse space located at 11100 Greenstone Avenue, Santa Fe Springs, California, 90670 (“Building Two”); and half of 11,450 square feet (SF) South warehouse pace located at 11110 Greenstone Avenue, Santa Fe Springs, California, 90670 (the “Warehouse” and with Building One and Building Two referred to herein as the “Premises”). This Court notes that Judge Chalfant made no rulings or findings related to the 21,412 square feet (SF) located at 11037 Lockport Place, Santa Fe Springs, California, 90670 (“Building One”).

· On April 26, 2019, in this action, Judge Escalante granted Plaintiff’s motion for summary judgment and found Defendant BLAINE HOLDING & DEVELOPMENT, LLC guilty of forcible detainer of the following premises: (1) 21,412 square feet (SF) located at 11037 Lockport Place, Santa Fe Springs, California, 90670 (“Building One”); and (2) 11,450 square feet (SF) South warehouse space located at 11110 Greenstone Avenue, Santa Fe Springs, California, 90670. Blaine Holding was ORDERED to vacate Building One and the Warehouse by no later than May 10, 2019, and to return exclusive possession to Plaintiff Vivera. In the Judgment, the Court specifically indicated that “Blaine Labs Inc. is not a party to this action and the court has not adjudicated any of its rights or remedies.” (Greer Decl., Ex. 2.)

· On November 25, 2019, in this action, Judge Sahagun issued the following Temporary Restraining Order in favor of Plaintiff Vivera: Effective upon

Plaintiff VIVERA PHARMACEUTICALS, INC.’s personal service of this Order onto Defendants BLAINE LABORATORIES, INC.; BLAINE HOLDING & DEVELOPMENT, LLC.; and ROBERT BLAINE— BLAINE LABORATORIES, INC. is hereby enjoined from restricting Plaintiff VIVERA PHARMACEUTICALS, INC. entry and access onto the 21,412 square feet of real property located at 11037 Lockport Place, Santa Fe Springs, California, 90670 (“Building One”). All parties were ORDERED to appear for an OSC re: Preliminary Injunction hearing on Wednesday, December 11, 2019 at 1:30 p.m. in Department SE-C.

· On December 11, 2019, Judge Sahagun DENIED Plaintiff’s request for a preliminary injunction, and set an OSC RE: Contempt for February 14, 2020.

The issues currently pending before this Court are whether Defendants’ failed to comply with any Court Orders, and whether Defendants’ noncompliance (if any) constitutes willful disobedience.

The Court finds that Defendants did disobey this Court’s issuance of a temporary restraining order of November 25, 2019. The November 25 Order was unequivocal—Defendants were enjoined from restricting Plaintiff VIVERA PHARMACEUTICALS, INC. entry and access onto the 21,412 square feet of real property located at 11037 Lockport Place, Santa Fe Springs, California, 90670 (“Building One”). The November 25 Order did not “only required Blaine Labs to allow Vivera entry and access to the property of Building One in a way that did not interfere with Blaine Labs’ claim or right of possession.” No such restrictions were in place.

Notwithstanding, the Court cannot make the determination, beyond a reasonable doubt, that Defendants acted willfully given Defendants purported attempt to reconcile Judge Chalfant’s earlier Preliminary Injunction Order in an unrelated case, to Judge Escalante and Judge Sahagun’s Orders in the instant action. Moreover, it is undisputed by all parties that Defendant BLAINE LABS’ rights to the Subject Property have not yet been adjudicated. The Motion for Contempt is denied.

Moving Party to give Notice.