Judge Holly J. Fujie, Case Number: 22STCV19770, Date: 2023-09-07 Tentative Ruling

RESPONDING PARTY: Defendants Central Basin Municipal Water District (the “District”) and Alex Rojas (“Rojas”) (collectively, “Defendants”)

On June 16, 2022, Plaintiff filed the operative Complaint against Defendants, Robert Baker and DOES 1 through 25, inclusive, for: (1) Damages in Violation of the Bane Civil Rights Act – California Civil Code Section 52.1; and (2) Injunctive Relief.

On August 1, 2023, the Court issued a preliminary injunction (the “PI”) against Defendants, limited to the following:

“conduct prohibiting, stopping or interfering with Plaintiff’s exercising her rights to speak in her capacity as a board member during [District] board meetings.” (PI order, p. 5.)

On October 26, 2023, Plaintiff filed an Ex Parte Application for Issuance of an Order to Show Cause Re Contempt of Court. On November 2, 2023, this Court entered an Order to Show Cause Re Contempt of Court (the “OSC”) and set the hearing on this matter for February 23, 2024. On December 22, 2023, Defendants filed their opposition. On February 9, 2024, Plaintiff filed her reply.

On February 23, 2024, this Court on its own motion continued the matter to April 3, 2024.

In support of their opposition, Defendants submitted the declaration of Rojas (the “Rojas Declaration”). Plaintiff objects to portions of the Rojas Declaration. The Court rules on Plaintiff’s objections as follows:

Plaintiff requests judicial notice of: (1) the District’s Board of Directors (the “Board”) Meeting Agendas for September 25, 2023, October 23, 2023, November 27, 2023, December 18, 2023, January 22, 2024 and February 7, 2024 as published on the District’s website (Bates Nos. RJN001-RJN017); (2) the Court’s PI (Bates Nos. RJN018-RJN022); (3) the Court Clerk’s Certificate of Mailing of Minute Order for the PI (Bates No. RJN023); (4) Proofs of Service of the Court’s PI on Arturo Chacon, Rojas and Elizabeth Brizuelas aka Elizabeth Rojas (Bates Nos. RJN024-RJN026); (5) the Court’s OSC dated November 22, 2023 (Bates Nos. RJN027-RJN029); (6) Proofs of Service of the Court’s OSC on Arturo Chacon and Rojas (Bates Nos. RJN030-RJN033); and (7) Proofs of Service of Subpoenas for witnesses to testify at Contempt Hearing for Thomas Bekele, Elizabeth Brizuelas aka Elizabeth Rojas, James Crawford, Juan Garza and Michael Gualtieri (Bates Nos. RJN034-RJN043).

Plaintiff’s request for judicial notice is GRANTED pursuant to Evidence Code Sections 452, subdivision (d), (h), and 453.

Pursuant to Code of Civil Procedure Section 1209, subdivision (a)(5), “Disobedience of any lawful judgment, order, or process of the court” constitutes a contempt of the authority of the court. (Code Civ. Proc., § 1209, subd. (a)(5).) “Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that the person is guilty of the contempt, a fine may be imposed on the person not exceeding one thousand dollars ($1,000), payable to the court, or the person may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.” (Code Civ. Proc., § 1218, subd. (a).)

Generally, “[t]he elements of proof necessary to support punishment for contempt are: (1) a valid court order, (2) the alleged contemnor's knowledge of the order, and (3) noncompliance.” (Inland Counties Regional Center, Inc. v. Superior Court (2017) 10 Cal.App.5th 820, 827.) “Contempt that occurs outside the presence of the court is indirect contempt, which is also known as constructive contempt.” (In re Marcus (2006) 138 Cal.App.4th 1009, 1014.) Thus, “[a]s a proceeding to punish for constructive contempt is criminal or quasi–criminal in its nature, the guilt of the accused must be established by clear and satisfactory evidence to sustain a conviction. A mere preponderance of evidence is not enough.” (Pomin v. Superior Court in and for El Dorado County (1941) 44 Cal.App.2d 206, 210.)

As an initial matter, Plaintiff presents evidence that the PI was authorized and entered by the Court on August 1, 2023. (RJN No. 1.) The PI restrained Defendants from “prohibiting, stopping or interfering with Plaintiff’s exercising her rights to speak in her capacity as a board member during [District] board meetings.” Plaintiff contends that the PI is a valid court order issued in accordance with California law and that it remains unchanged and valid because there has been no challenge to it.

Plaintiff presents evidence that Defendants have actual knowledge of the PI because each Defendant was personally served with a copy of it. (Wilson Decl., ¶ 7, Ex. 4.) Plaintiff also presents evidence that the District’s Deputy General Counsel, Derrick Lowe, appeared in this case on the District’s behalf on August 1, 2023, and was present at the time that the Court issued the PI. Plaintiff also presents evidence that during the Public Comment segment of the District’s regular Board meeting on August 21, 2023, Plaintiff’s counsel, Ronald Wilson, informed each Board member that they had been served with the PI and explained its contents. (Id.)

Plaintiff contends that Defendants have the ability to comply with the PI because the District’s Administrative Code gives its Board President the right of final approval on the contents of the agendas for all regular, special and emergency meetings of the District’s Board. (Ex Parte App. Vasquez Decl., ¶ 7.) Furthermore, Plaintiff asserts Derek Lowe’s email dated September 22, 2023 acknowledges that the Board President of the District has such authority. (Ex Parte App. at 11:7-13.)

Plaintiff also contends that the District’s Board President, Arturo Chacon, is subject to contempt for the violation of the PI even as a non-party to this litigation because it is well settled law in California that nonparties who are agents and representatives of the named party are responsible for aiding and abetting the violations at issue. (Ross v Superior Court (Woods) (1977) 19 Cal.3d 899, 905-906.) Plaintiff further contends that Defendants’ willful disobedience may be inferred. Lastly, Plaintiff argues that she is entitled to her attorney’s fees and costs in seeking the OSC.

In opposition, Defendants present evidence that there was no refusal to agendize or discuss Plaintiff’s items because they were in fact agendized and came up regularly for discussion. (Rojas Decl., ¶¶ 2-3.) Defendants further provide evidence that Plaintiff voluntarily chose not to discuss either of her items at the November and December 2023 Board Meetings, and that she voted to continue Item B to the January 2024 Board Meeting. (Id. at ¶¶ 6-10, Exs. 1-2.)

Defendants argue that Plaintiff fails to identify any right that has been violated because Government Code Section 5454.2, subdivision (a)(3) only directs staff to agendize an item on a future agenda subject to the rules or procedures of the legislative body, not immediately, as Plaintiff claims. Finally, Defendants argue there was no violation of the temporary restraining order (“TRO”)[1] because Plaintiff was freely able to speak to make her request to agendize the Vasquez Items, the items were agendized, and she was then fully and freely able to discuss them with the Board in November of 2023.

Plaintiff argues that Defendants misrepresent the nature of the requested relief because Defendants’ counsel is fully aware that the issue before the Court relates to the September and October, 2023 meetings and continuing dates and not simply to the November, 2023 meeting. (Wilson Decl., ¶, Ex. 3.) Plaintiff also asserts that Defendants falsely contend that the items she requested were placed on the November 2023 agenda. Plaintiff contends that the items were placed in the information and discussion portion and not on the action item portion of the agenda and that by refusing to provide adequate legal descriptions of the agenda items as requested she was unable to make motions and further seek changes.

Plaintiff contends that even if she were successful in obtaining action on these items at the November Board meeting, they would have been subject to judicial challenge because of the inadequacy and misleading nature of the descriptions. As such, Plaintiff argues that this conduct intentionally interferes with and prevents her ability to make a motion and to discuss changes to the district maps and the Administrative Code. Moreover, Plaintiff argues that the items were not placed on the December 2023 or on the January 2024 Board Meeting agendas because only one of the requested items was placed and that was with a woefully inadequate description in the information and discussion portion of the agenda, and it was not placed in the action items section.

The Court finds that Defendants’ conduct does not constitute indirect contempt (constructive contempt) for the purposes of issuing a contempt citation. Although Plaintiff presents evidence that: (1) there a valid court order in place, i.e., the PI issued on August 1, 2023 and (2) Defendants had knowledge of the PI being issued, Plaintiff has not established by clear and satisfactory evidence that Defendants’ actions were noncompliant with the PI. The PI only enjoined Defendants from prohibiting, stopping or interfering with Plaintiff’s exercising her rights to speak in her capacity as a board member during District Board Meetings, and Defendants did not so violate the PI.

Initially, the Court finds that the language of the PI relates only to Plaintiff’s right “to speak in her capacity as a board member during the [District] board meetings” The PI does not prohibit Defendants from “interfer[ing] with and prevent[ing] her ability to make a motion and to discuss changes to the district maps and the Administrative Code” as Plaintiff contends. The Court very narrowly drafted the language of the PI to only prohibit activities that limited Plaintiff’s right to “speak.” The PI deliberately does not address any alleged “right” to have specific items placed on the District Board’s agenda, much less require affirmatively that such items be placed in a specific part of the agenda or with specific descriptive language. The PI was intentionally issued by this Court with this very specific limitation on its injunctive relief, particularly in response to Plaintiff’s contention that she was physically prevented from speaking at Board meetings. The actions asserted by Plaintiff in connection with the OSC, in contrast, do not and cannot come within the scope of the PI as it was issued. The Court finds that none of Defendants’ alleged actions constitute “prohibiting, stopping or interfering with Plaintiff’s exercising her rights to speak in her capacity as a board member during [District] board meeting[s].” (PI, p. 5, emphasis added.) The Court further finds that no additional evidence to support Plaintiff’s claims as set forth in her papers for the issuance of the OSC would support the issuance of a contempt citation to Defendants.

Moreover, even if the PI did specifically prohibit activity relating to the placement of items on the Board’s meeting agendas as opposed to actually speaking at Board meetings, which it does not, Plaintiff’s evidence does not support her own argument regarding the issuance of the OSC. Plaintiff submitted evidence that she requested throughout the months of September 2023, October 2023, November 2023, December 2023 and January 2024 that two items be placed on the agenda for “discussion and action.” The requests did not, however, specify that these items be placed in the “Action Items” portion of the agenda.

Plaintiff herself appears to concede that the items she requested were in fact placed on the agenda, but she insists that they were not adequately described or placed in the right section of the agenda for motions to be made on them. Because the prohibitions in the PI are so circumscribed, even if the PI were read to require that Plaintiff must be unconditionally allowed to place items on the agenda, which the Court finds cannot be done, Defendants’ conduct in simply placing Plaintiff’s requested items on the agenda would render it in compliance with the PI, regardless of which portion of the agenda they were on and how they were described.

Therefore, the Court finds that the evidence before the Court therefore did not and cannot support the issuance of the OSC. Because the Court finds that the activities of which Plaintiff complains as being violative of the PI cannot in fact be held to be in violation of the PI, the Court on its own motion DISCHARGES the OSC and DENIES the application for contempt of court citation.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Plaintiff acknowledges that this reference to a TRO is a mistake and that the argument made by Defendants relates to the PI.