Judge: Curtis A. Kin, Case: 21STCV35635, Date: 2023-05-02 Tentative Ruling

Case Number: 21STCV35635    Hearing Date: May 2, 2023    Dept: 72

MOTION FOR ORDER TO SHOW CAUSE

RE: CONTEMPT

Date:               5/2/23 (9:30 AM)

Case:               Chris Nelson v. Phoebe Bridgers (21STCV35635)

TENTATIVE RULING:

Defendant Phoebe Bridgers’ Motion for Order to Show Cause Why Plaintiff Chris Nelson Should Not Be Held in Contempt Pursuant to C.C.P § 1209 and Be Sanctioned Pursuant to C.C.P. § 177.5 for Violating Court’s Protective Order is DENIED.

Defendant Phoebe Bridgers moves for the issuance of an Order to Show Cause, pursuant to which plaintiff Chris Nelson would be required to demonstrate why an appropriate sanction should not be imposed against him for purportedly violating the protective order entered on 4/11/22. (Strub Decl. ¶ 5 & Ex. A [“Protective Order”].) At issue are certain portions of defendant’s deposition testimony that plaintiff allegedly disclosed publicly.

In applying for an order to show cause re: contempt, “[w]hen 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(a).) The charging affidavit must set forth the following facts: (1) rendition of a valid order; (2) respondent’s actual knowledge of the order; (3) respondent’s ability to comply with the order; and (4) respondent’s willful disobedience of the order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.)

With respect to rendition of a valid order, the Protective Order restricted access of materials designated as “Confidential” to the Court; the parties; attorneys and their staff; persons who counsel for non-designating party deems necessary to aid in the prosecution and defense of the instant action, provided that such person sign an agreement to be bound by the Protective Order; court reporters; witnesses who had access to materials designated as Confidential; mock jury participants; experts who agree to be bound by the Protective Order; and any other party to whom the Designating Party agrees in writing. (Protective Order ¶ 11.) The Protective Order restricted usage of materials designated as Confidential to “preparing for, conducting, participating in the conduct of, prosecuting or defending the Proceeding, and not for any business or other purpose whatsoever.” (Protective Order ¶ 14.)

During defendant’s deposition, defendant designated her entire deposition as confidential. (Strub Decl. ¶ 6 & Ex. B.) Plaintiff Nelson himself was present at the deposition. (Ibid.) Where a party receiving testimony designated as Confidential objects to the designation, the Protective Order allows the designating party to file a motion to establish the applicability of the Confidential designation. (Protective Order ¶¶ 9, 10.) Plaintiff disputed defendant’s confidentiality designation of her deposition testimony. (Strub Decl. ¶ 7.) Defendant filed a motion to uphold the confidentiality designations, which was heard on August 11, 2022. (Strub Decl. ¶ 9.) Plaintiff Nelson himself was present at the hearing on defendant’s motion. (Strub Decl. ¶ 10.) On November 9, 2022, after being taken under submission, the motion was granted. (Strub Decl. ¶ 10 & Ex. D [“11/9/22 Order”].) Accordingly, defendant’s deposition testimony remains subject to the Protective Order.

Based on the foregoing, the charging affidavit establishes the rendition of a valid order limiting usage of defendant’s deposition testimony to the prosecution or defense of the instant action.

With respect to ability to comply with the order, this motion concerns plaintiff’s posting of portions of defendant’s deposition testimony, which were designated as confidential under the Protective Order, on his Instagram account. (Strub Decl. ¶¶ 11, 15 & Exs. F, I.) There can be no serious doubt plaintiff could have refrained from publicly posting defendant’s deposition testimony.

With respect to actual knowledge of the order and willful disobedience of the order, the charging affidavit contains an averment that plaintiff Nelson was at a November 9, 2022 hearing at which the Court indicated that it would not de-designate defendant’s testimony. (Strub Decl. ¶ 10.)  There was no such hearing.  As reflected in the November 9, 2022 Minute Order attached to the charging affidavit, the Court issued an 11/9/22 Order upholding defendant’s designation of her deposition testimony as confidential, which was mailed to counsel for plaintiff. (Strub Decl. ¶ 10 & Ex. D.) The 11/9/22 Order was issued as a ruling on a submitted matter for which no parties or their counsel were present or made an appearance. (Strub Decl. ¶ 10 & Ex. D.) Accordingly, while there is evidence that plaintiff’s counsel received the Order in the form of a Certificate of Mailing, there is no evidence or averment indicating that plaintiff himself, as opposed to counsel for plaintiff, received the 11/9/22 Order.

“Actual knowledge of the order which the party is charged to have violated is essential and must be alleged as a prerequisite to contempt proceedings.” (Doyle v. Superior Court (1952) 113 Cal.App.2d 880, 880-81.) “The fact that one is a party to litigation does not, of itself, charge him with knowledge of an order or judgment made in connection with it.” (Phillips v. Superior Court (1943) 22 Cal.2d 256, 258.) The charging affidavit demonstrates Nelson knew from attending defendant’s deposition that defendant’s testimony was designated as confidential. (Strub Decl. ¶ 6 & Ex. B.) The charging affidavit also demonstrates that Nelson was present at the August 11, 2022 hearing during which the parties argued whether defendant’s deposition testimony was properly designated as Confidential. (Strub Decl. ¶ 10.) However, the charging affidavit does not demonstrate that Nelson himself had actual knowledge of the Court’s ruling on defendant’s motion. Accordingly, the charging affidavit fails to establish that Nelson, as opposed to his attorney, knew defendant’s deposition testimony remained designated as Confidential.

Based on the foregoing, the charging affidavit fails to show actual knowledge of the order and willful disobedience of the order. “[T]he provisions of sections 1211 et seq., Code Civ.Proc. must be strictly followed and that a failure to allege all the essential facts relied on is fatal to contempt proceedings.” (Doyle, 113 Cal.App.2d at 880.) “‘In reviewing this proceeding, the charge, the evidence, the findings and the judgment are all to be strictly construed in favor of the accused [citation], and no intendments or presumptions can be indulged in aid of their sufficiency. [Citation.] ….’” (Ibid., quoting Hotaling v. Superior Court (1923) 191 Cal. 501, 506.) Even if plaintiff has already removed the offending posts (Strub Reply Decl. ¶ 3), the Court does not necessarily infer plaintiff’s actual knowledge of the 11/9/22 Order from plaintiff’s actions.

The motion is DENIED.