Case Number: KC067340??? Hearing Date: September 01, 2016??? Dept: J
Re: James I. Nakano, etc., et al. v. Kamron O. King, et al. (KC067340)
MOTION FOR ISSUANCE OF ORDER TO SHOW CAUSE RE: CONTEMPT
Moving Parties: Plaintiffs James I. Nakano, as Trustee of the Nakano Family Trust and M.J. Nakano, Limited dba The Donut Man
Respondents: Defendants, Kamron O. King, Sheri King, King?s Fitness, Inc. and Kamron O. King, as Trustee of the Kamron O. King Living Trust
POS: No proof of service accompanies the moving papers; Personal service of affidavit is required, per CCP ?? 1015-1016 and below]; Opposing OK
This is a quiet title action involving a driveway, thoroughfare and parking spaces between the two adjoining commercial properties owned by the parties. Plaintiffs seek an easement over Defendants? driveway, thoroughfare and parking spaces pursuant to an alleged equitable easement, irrevocable license and/or prescriptive easement. Plaintiff commenced this action on 12/12/14. The Third Amended Complaint filed on 1/11/16, asserts causes of action for:
1. Quiet Title (Equitable Easement)
2. Quiet Title (Irrevocable License)
3. Declaratory Relief
4. Injunctive Relief
5. Intentional Interference with an Economic Advantage
6. Civil Extortion
7. Violation of Bus & Prof C ? 17200
On 3/22/16, this court sustained Defendants? demurrer to the sixth cause of action, without leave to amend. On 4/1/16 Defendant King?s Fitness, Inc. filed a Cross-Complaint against Plaintiffs, asserting causes of action for:
1. Trespass
2. Intentional Misrepresentation
3. Unfair Business Practice
The Final Status Conference is set for 10/7/16. The Jury Trial is set for 10/18/16.
Plaintiffs, James I. Nakano, as Trustee of the Nakano Family Trust and M.J. Nakano, Limited dba The Donut Man (?plaintiffs?) move for the issuance of an Order to Show Cause regarding the alleged contemptuous
behavior of Defendants Kamron O. King, Sheri King, King?s Fitness, Inc. and Kamron O. King, as Trustee of the Kamron O. King Living Trust (?defendants?).
Defendants are alleged to have acted in violation of this court?s 2/23/16 ?Order After Hearing Granting Plaintiff?s Motion for Preliminary Injunction? by maintaining barriers blocking the open space between the two properties.
?The power to punish for contempt or to use the contempt powers to obtain compliance with a court order is conferred on the court by statute. (Code Civ.Proc., sec. 1218). ?Disobedience of any lawful judgment, order, or process of the court? constitutes contempt. (Code Civ.Proc., sec. 1209, subd. (a)(5)).? Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.
?Most violations of injunctions involve conduct outside the presence of the court, i.e., an ?indirect contempt??Accordingly, the contempt charge must be presented to the court for adjudication.? Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ? 9:711 (emphasis theirs). ?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 ? 1211.
?The affidavit frames the issues to be tried. [Reliable Enterprises, Inc. v. Sup. Ct. (People) (1984) 158 Cal.App.3d 604, 616]. The filing of a sufficient affidavit is a ?jurisdictional prerequisite? to a contempt proceeding and without one, any contempt order is void. [In re Koehler (2010) 181 Cal.App.4th 1153, 1169].? Weil & Brown, supra, at ? 9:713.
?Unless the citee has concealed himself from the court, he must be personally served with the affidavit and the order to show cause; otherwise, the court lacks jurisdiction to proceed. (? 1015 [in civil actions in which a party is represented by an attorney, ?the service of papers, when required, must be upon the attorney instead of the party, except service of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt?]; see also ? 1016?).? Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281-1286-1287 (emphasis theirs).
?The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience.? Conn, supra, 196 Cal.App.3d at 784 (citation omitted). ?Each allegation (valid order, knowledge, ability to comply and willful disobedience) must be pleaded by factual statements.? Id. at ? 9:714 (emphasis theirs).
?To establish willful disobedience, the affidavit should show that the alleged contemnor had personal notice of the contents of the order.? Id. at ? 9:714.1 (emphasis theirs). ?The law does not require that a party subject to an order of the court must be personally served with a copy of that order before he may be held in contempt of it. All that the law requires is that he had knowledge of it. Proof of service of the order upon defendant’s attorney is sufficient to raise the disputable presumption that the attorney had performed his duty and communicated his knowledge of the order to his client. (In re Sigesmund [(1961)] 193 Cal.App.2d 219, 223-224; see also Freeman v. Superior Court [(1955)] 44 Cal.2d 533, 537-538).? People v. Superior Court for Los Angeles County (1965) 239 Cal.App.2d 99, 104.
?Because a contempt proceeding is criminal in nature, due to the penalties which might be imposed (In re Witherspoon (1984) 162 Cal.App.3d 1000), guilt must be established beyond a reasonable doubt. (Id. at p. 1002). ?The power to weigh evidence, however, rests exclusively with the trial court. [Citations.] Accordingly, it is well settled that our responsibility upon review is merely to ascertain whether there existed any substantial evidence to sustain the jurisdiction of the trial court. [Citations.]? (In re Coleman (1974) 12 Cal.3d 568, 572-573).? Conn, supra, 196 Cal.App.3d at 784.
?If the court is satisfied that the affidavit alleges sufficient grounds for contempt, it signs an ?OSC re Contempt,? setting the date and time for a hearing. [CCP ? 1212].? Id. at ? 9:715.
Plaintiffs? affidavit does not plead factual statements regarding defendants? ability to comply, particularly with respect to the removal of the poles. Additionally, there is no indication that defendants were personally served with this affidavit; accordingly, plaintiff?s motion seeking an order to show cause re contempt is denied.