Objection Objection to Allowance of any Evidence of Alleged Reliance on Advice of Counsel as Defense to Contempt August 27, 2018 (2024)

On October 01, 2012 aMotion-Secondarywas filedinvolving a dispute betweenCalifornia State Grange,The National Grange Of The Order Of Patrons Of Husbandry,andBaker, Shirley,Does 1-10,Luttrell, Edward L.,Roes 1-10,Stefenoni, Martha,The California Guild,Bergeron, Kathy,Booth, Lillian,Chernoff, Gerald,Does 1-50,Does 1 Through 10,Luvaas, John,Mcfarland, Robert,Parr, Damian,The California State Grange,The Grange Of The State Of California'S Order Of The Patrons Of Husbandry, Chartered,Thomas, Bill,Yogi, Takashi,Ellis, Mark E.,for (Other Complaint (non-tort/non...)in the District Court of Sacramento County.

 
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 1 Jeffrey D. Skinner (Bar No. 239214) /ENDORSED SCHIFF HARDIN LLP2 901 K Street NW, Suite 700 Washington, DC 200013 Telephone: (202) 778-6400 AUG 2 7 2018 Facsimile: (202) 778-64604 By J. Bell, Deputy Clerk Mark A. Serlin (BarNo. 122155)5 SERLIN & WHITEFORD LLP 701 E Street6 Sacraniento, CA 95814 Telephone: (916) 446-07907 Facsimile: (916)446-07918 Attomeys for Plaintiffs-in-Intervention9 THE CALIFORNIA STATE GRANGE and ED KOMSKI10 SUPERIOR COURT OF THE STATE OF CALIFORNIA11 FOR THE COUNTY OF SACRAMENTO—UNLIMITED JURISDICTION12 THE NATIONAL GRANGE OF THE CASE NO. 34-2012-00130439 (Consolidated ORDER OF PATRONS OF with Butte County Case No. 163389)13 HUSBANDRY,14 Plaintiff, OBJECTION TO ALLOWANCE OF ANY EVIDENCE OF ALLEGED RELIANCE15 THE CALIFORNIA STATE GRANGE and ON ADVICE OF COUNSEL AS DEFENSE ED KOMSKI, TO CONTEMPT16 Plaintiffs-in-Intervention,17 V.18 Continued Trial Date: September 21,2018 THE CALIFORNIA STATE GRANGE, et19 al., Initial Trial Date: August 10, 2018 Time: 8:30 a.m.20 Defendants. Dept: 3021 Consolidated with:22 CALIFORNIA STATE GRANGE,23 Plaintiff,2425 Complaint Filed: October 1, 2012 THE GRANGE OF THE STATE OF Complaint-in-Intervention Filed:26 CALIFORNIA'S ORDER OF PATRONS November 7, 2014 OF HUSBANDRY, et al., Judgment Entered: November 15,201527 Defendants.28 OBJECTION TO ALLOWANCE OF ANY EVIDENCE National Grange, etc. vs. CA State Grange, et al. OF ALLEGED RELIANCE ON ADVICE OF COUNSEL Case No. 34-2012-00130439 1 I. INTRODUCTION 2 Plaintiff-in-intervention and judgment creditor Califomia State Grange ("Grange") hereby 3 objects to the effort of contemnors the Califomia Guild ("Guild"), Robert McFariand 4 ("McFariand"), and Mark Ellis ("Ellis") (collectively, Contemnors") to claim any reliance on 5 advice of coimsel as a defense to this contempt proceeding. It has long been the law that advice of 6 counsel is not a shield to criminal contempt proceedings and thus Contemnors should be precluded 7 from submitting any evidence of alleged reliance on advice of counsel as a matter of law. 8 II. THE PROFFERED DEFENSE 9 All three Contemnors assert that their actions were based on alleged reliance on the advice10 of coimsel, namely Ellis. Ellis, who actively aided and abetted the contempt by laundering money11 subject to the injunction through his client tmst account so as to conceal the source, claims that12 both his actions and the actions of the Guild and McFariand were based on his legal advice.13 Indeed, but for alleged ambiguity of the injunction order (a claim fatuous in the extreme), this is14 the sole defense asserted by Contemnors. For the reasons stated below, such defense is15 unavailable as a matter of law and Contemnors should be precluded from making any reference to16 such purported defense, much less submitting any evidence thereof.17 IIL ADVICE OF COUNSEL IS NO DEFENSE TO CONTEMPT18 The Grange in its trial brief pointed to Califomia Supreme Court authority for the19 proposition that advice of counsel is no defense to an action for contempt. Citv of Vernon v. Sup.20 Ct, (1952) 38 Cal.2d 509, 518. In addition, there is a marching legion of authority for the21 proposition that, not only in Califomia, advice of counsel is no defense to contempt. See U.S. v.22 Wood, 446 F.2d 505, 507 (9* Cir. 1971); U.S. v. Snyder. 428 F.2d 520, 522 (9"^ Cir. 1970) cert.23 den. 400 U.S. 903 (1970); U.S. v. Scarmazzo. 554 F.Supp.2d 1102, 1110 (E.D. Cal. 2008).24 Equally critically, it is no defense to a crime that the defendant relied on advice of counsel.25 People v. Snyder. (1982) 32 Cal.3d 590, 593; People v. Honig. (1996) 48 Cal.App.4th 289,26 347-48. This is particularly tme because contempt is a general intent crime, not a specific intent27 crime. People v. Partee. (2018) 21 Cal.App.5th 630, 635 citing People v. Greenfield. (1982) 13428 /// OBJECTION TO ALLOWANCE OF ANY EVIDENCE 2 National Grange, etc. vs. CA State Grange, et al. OF ALLEGED RELIANCE ON ADVICE OF COUNSEL Case No. 34-2012-00130439 1 Cal.App.3d Supp. 1, 4. Hence, good faith and/or reliance on advice of counsel is irrelevant. 2 Scarmazzo, supra. 3 Given the marching legion of authority for the proposition that advice of counsel cannot be 4 a defense to contempt, this Court should not consider any evidence of reliance on advice of counsel 5 because such is per se irrelevant. That is, it would be a complete waste of court, attomey, and 6 witness time to allow presentation of an advice of counsel defense when such defense is 7 unavailable as a matter of law. Hence, such is properly excluded. Evid. Code. § 352. 8 IV, CONCLUSION 9 The Grange submits that its objection to the advice of counsel defense and any and all10 evidence related thereto is well taken and should be sustained. Xbe/jSjrange is submitting this11 brief well in advance of the continued trial so as to avoid any cla^^^/b/ambush and to allow the12 Contemnors to submit such supplemental briefing as they deen)i^pi;^ij^priate.13 DATED: August ^ ^ 0 1 8 SERLIN WJ^ITEFORD, LLP1415 By:16 MARK A. SERLIN, Attomeys for Plaintiffs-in-Intervention THE17 CALIFORNIA STATE GRANGE and ED18 KOMSKI1920212223'242526 S:\Active Files\CALIFORNIA STATE GRANGE\Guild\court docs\osc trial.objection.docx2728 OBJECTION TO ALLOWANCE OF ANY EVIDENCE National Grange, etc. vs. CA State Grange, et al. O F ALLEGED RELIANCE ON ADVICE OF COUNSEL Case No. 34-2012-00130439 

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