Memorandum Points and Authorities

Cal. Super. - 6th Dist.March 24, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/4/2021 10:08 AM Reviewed By: F. Miller Case #21CV381110 Envelope: 6992509 21CV381110 Santa Clara - Civil \DOOQQLIIhb-IN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ‘27 28 Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES 0F MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: (408) 261-5800 Facsimile: (408) 261-5900 Email: mga@mgackermanlaw.com Attorneys for Defendant, PANIDA CHINSUPAKUL SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY 0F SANTA CLARA ANNE TING, an individual; JACK TING, ) Case No.: 21CV381 1 10 an individual; and NICOLE TING-YAP, an ) individual; ) MEMORANDUM OF POINTS AND _ . ) AUTHORITIES RE: SERVICE 0F AN Plaintlffs, g ORDER To snow CAUSE AND THE ) SCOPE 0F AN ORDER GRANTING A VS‘ ) PRELIMINARY INJUNCTION ) PANIDA CHINSUPAKUL, an individual; ) and DOES 1 through 10; ) Dfm 8/26/ 2021 ) Tlme: 1:30 p.m. ) Dept: 7 Defendants. g Judge: Hon. Cynthia LieW At the inception of the hearing on the application for a preliminary injunctién, Defendant Panida Chinsupakul raised two objections through her counsel. The first was that the Order to Show Cause specifically required that the Temporaxy Restraining Order and Order to Show Cause be personally served on Defendant no later than June 8, 2021. Plaintiffs admit that they failed to serve Defendant, as required, but claim that counsel’s appearance at court waived the requirement of personal service. The second objection was based upon this court’s initial cements to counsel for Plaintiffs suggesting that the court was considering issuing a preliminary injunction beyond the scope - 1 - MEMORANDUM 0F POINTS AND AUTHORITIES RE: SERVICE OF AN OSC AND THE SCOPE 0F AN ORDER GRANTING PRELIMINARY [NJUNCTION CASE No.: 21CV381 l 10 \OOOQQMuhUJMt-s NNNNNNNNHu-Ir-tv-tn-oa-tr-Hp-n-a gNQM¥WN~O©WQQM$WN~O of the Order to Show Cause. Counsel for Defendant objected, contending that the relief granted could not extend beyond that requested in the Order to Show Cause. Otherwise, Defendant would be denied due process of law. At the conclusion of oral arguments, this court granted Defendant the opportunity to brief these issues. This memorandum is submitted to address these issues.W A. Procedural Due Process Requires Both Notice 0f The Issues In Dispute and An Opportunity To Be Heard. Article 1, Section 7(a), ofthe California Constitution, provides in pertinent part: “A person may not be deprived of life, liberty, or property without due process of law . . .” “The essence of procedural due process is notice and an opportunity to respond. (citation) ‘The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending “hearing” . . .’ (citation)” Gilbert v. City ofSunnyvale (2005) 130 C.A. 4‘“ 1264, 1279; 31 Cal. Rptr. 2d 297) “The due process guarantees of notice and an opportunity to be heard have little value unless a party ‘is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein.” (In re Willford J. (2005) 131 C.A. 4'“ 742, 746; 32 Cal. Rptr. 2d 317) In the case ofAnderson v. Superior Court (1989) 213 C.A. 3d 1321; 262 Cal. Rptr. 405, the petitioners were receiving AFDC support and appeared in court at hearings to issue orders against their spouses to obtain reimbursement for the payments made to the petitioners. During the course of those hearings the trial judge issued orders that each of the petitioners was to engage in a number of job searches each week. The petitioners filed a petition for writ of mandate contesting the orders. The court of appeal found that the orders requiring the petitioners to engage in job searches violated due process because they did not receive notice prior to the hearings that the court would consider their potential obligation to provide support in excess of that provided by the AFDC benefits in matters pertaining to their spouses’ support obligations. The court 0f appeal stated that lacking timely and adequate notice, petitioners were denied due process. The writ was issued directing the trial court to vacate its job search orders. - 2 _ MEMORANDUM OF POINTS AND AUTHORITIES RE: SERVICE OF AN OSC AND THE SCOPE OF AN ORDER GRANTING PRELIMINARY INJUNCTION CASE NO.: 21CV381 l 10 \OOOQONLh-hwwfl NNNNNNNNNH-‘t-‘r-‘t-‘t-‘Hn-‘a-IH WQQMAWNHOOWQQMAMNHO Similarly, in the case ofMalek v. Koshak (201 l) 200 C.A. 4‘“ 1540; 130 Cal. Rptr. 3d 1, the trial court issued an order of restitution at the conclusion of contempt proceedings, although there was no prior notice that the trial court also intended to consider an order of restitution. The court of appeal held that this denied the appellant due process. The court further noted that the failure to accord a party litigant due process is reversible per se, and not subject to the harmless error doctrine. (Malek, supra, at page 1550). California Rules of Court, Rule 3.1 150 governs the issuance of a preliminary injunction. Section 3.1 150 provides that a party requesting a preliminary injunction may give notice of the request by either serving a noticed motion under C.C.P. section 1005 or by obtaining and serving an order to show cause (OSC). An OSC must be used when a temporary restraining order (TRO) is sought. Subsection (c) of Rule 3.1 150 provides as follows: “The OSC and TRO must be stated separately, with the OSC stated first. The restraining language sought in an OSC and a TRO must be separately stated in the OSC and the TRO and may not be incorporated by reference. The OSC must describe the injunction sought at the hearing. The TRO must describe the activities to be enjoined pending the hearing. A proposed OSC must contain blank spaces for the time and manner of service on responding parties, the date on which the proof of service must be delivered to the court hearing the OSC, a briefing schedule, and, if applicable, the expiration date of the TRO.” The word “must” is used throughout Rule 3.1 1 50. The use of this word is to be interpreted as having mandatory effect rather than being discretionary or permissive. (Long Beach Police Officers Assoc. v. City ofLong Beach (1988) 46 Cal. 3d 736, 743; 250 Cal. Rptr. 869) This is particularly true given that the word “may” is also used contrasting between what is permissive and what is mandatory. The mandatory language contained in Rule 3.1 150 comports with due process requirements. It provides notice of precisely what issues are to heard, giving notice to the adverse party what issues - 3 - MEMORANDUM 0F POINTS AND AUTHORITIES RE: SERVICE 0F AN OSC AND THE SCOPE 0F AN ORDER GRANTING PRELIMINARY INJUNCTION CASE N0.: 21CV381110 \OWQQUIAUJNO-d N NNNNNNN-tu-tn-np-u-IH-nn-In-r-n OOBQM¥MNHO©OON¢UIAWNHO they will be required to defend at the hearing. This court suggested that the request for a TRO gave notice of the fact that broader relief beyond that requested in the OSC might be granted. This is incorrect. The express wording of Rule 3.1 150(0) states that the OSC and TRO must be separately stated and cannot be incorporated by reference. The OSC must describe the injunction to be sought at the hearing. The TRO must describe the activities to be enjoined pending the hearing. As a result, the ex parte application for a TRO cannot give notice ofwhat injunctive relief will be requested at the hearing on the OSC unless the requested relief for the OSC is identical to that requested on the TRO. It was not. This court, by the express language 0f Rule 3.1 150, may not grant relief in a preliminary injunction that was not specifically requested in the OSC. This would deny Defendant her due process rights to be apprised in advance of the hearing of what issues she must be prepared to defend at the hearing. The relief that may be granted on the OSC for a preliminary injunction is limited by the statement of the relief requested in the OSC. This court has no discretion to issue an order beyond that which was requested. B. Personal Service of the OSC on Defendant Was Made Mandatory by the Express Language of the OSC. Lack of Personal Service Deprives This Court of Jurisdiction To Proceed. Although by statute, personal service of the OSC was not required on Defendant, the OSC, by its express language (drafted by Plaintiffs), made it mandatory that Defendant be personally served. The order states that the TRO, the OSC and all papers Plaintiffs have submitted in support of its Application shall be personally served on Defendant Chinsupakul no later than June 8, 2021. (emphasis added) The use of the word “shall” denotes mandatory compliance. Service ofthe TRO and OSC was ordered to be made by personal service, not by electronic service on counsel for Defendant. This is akin to service of an order to show cause re contempt. (C.C.P. sections 1015 and 1016) Where personal service has not been made of an OSC re contempt, service of the papers on the attorney for the respondent is insufficient to comply with the statute. The trial court is without jurisdiction to proceed. (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 C.A. 4‘“ 1281, 1286-1287; 100 Cal. Rptr. 2d 320) - 4 - MEMORANDUM 0F POINTS AND AUTHORITIES RE: SERVICE 0F AN OSC AND THE SCOPE 0F AN ORDER GRANTING PRELIMINARY INJUNCTION CASE N0.: 21CV381110 MAMN \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the OSC was required to be personally served on the Defendant. This court could have issued the OSC providing for service on counsel, but that is not what occurred. Plaintiffs failed to personally serve Defendant with the TRO and OSC. As a result, this court has no jurisdiction to proceed. DATED: August 5 , 2021 LAW OFFICES OF MICHAEL G. ACKERMAN By: ,// /// 4/2 ICHAEL G. U(ERMAM‘ESQ. Attorneys for efendant, PANIDA CHINSUPA UL - 5 - MEMORANDUM 0F POINTS AND AUTHORITIES RE: SERVICE OF AN OSC AND THE SCOPE 0F AN ORDER GRANTING PRELIMINARY INJUNCTION CASE No.: 21CV381110 \OOOQGUI-wap-n NNNNNNNn-tt-I-uu-At-av-nt-tn-In-tn-I gSQM-fiWNHoowQQM-pWNHO PROOF OF SERVICE The undersigned declares: I am a citizen of the United States and a resident of Santa Clara County, State of California. I am over the age of eighteen (1 8) years and not a party to the within above-entitled action. My business address is 2391 The Alameda, Suite 100, Santa Clara, CA 95050. On August 4, 202 1 , I served a copy of the following document(s) described as: - MEMORANDUM OF POINTS AND AUTHORITIES RE: SERVICE OF AN ORDER TO SHOW CAUSE AND THE SCOPE OF AN ORDER GRANTING A PRELIMINARY INJUNCTION on the interested panics in this action by placing true copies thereof to the person(s) listed below: Ms. Skye Langs, Esq. COBLENTZ PATCH DUFFY & BASS LLP One Montgomery St., Suite 3000 San Francisco, CA 94104 Telephone: (415) 391-4800 Facsimile: (415) 989-1663 email: ef-sdl c db.com (Attorneyfor Plaintifls, Anne Ting, Jack Ting, and Nicole Ting-Yap) ()6 (By U.S. Mail) I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after dated of deposit for mailing in affidavit. I caused to be deposited such envelope(s) with postage thereon fully paid to be placed in the United States Mail at Santa Clara, California. 96 (By E-Mail) I caused a true copy 0f the foregoing document to be served on Skye Langs, of Coblentz Patch Duffy & Bass LLP, at slangs@coblentzlaw.com. The e-mails were complete and no reports of error were received on August 4, 2021. ( ) (By Facsimile) I caused to be served by facsimile a true and correct copy pursuant to C.C.P. §1013(e), calling for agreement and written confirmation of that agreement on court order, to the number(s) listed above or on an attached sheet. Said transmission was reported complete and without _ 6 _ MEMORANDUM OF POINTS AND AUTHORITIES RE: SERVICE OF AN OSC AND THE SCOPE OF AN ORDER GRANTING PRELIMINARY INJUNCTION CASE NO.: 21CV381 l 10 \OOOflQM-PDJNu-n NNNNNNNNN-In-tt-Iu-ot-‘u-‘p-ay-nu-nu-n OOQO\MAWN#O©W\‘@UIAUJNHO error. ( ) (By Federal Express) I caused t0 be served a true and correct copy enclosed in a sealed package, for California Overnight collection and for overnight delivery. Ihad said envelope marked for collection and overnight delivery to the addressed and t0 the office of the addressee(s) as above indicated. In the ordinary course 0f business and including said overnight envelopes, will be deposited with Federal Express at Santa Clara, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed in the City of Santa Clara, State of California By: QMWM M MMV/ SQBP‘HA'NIE L. SNY%V on August 4, 2021. _ 7 _ MEMORANDUM OF POINTS AND AUTHORITIES RE: SERVICE OF AN OSC AND THE SCOPE OF AN ORDER GRANTING PRELIMINARY INJUNCTION CASE N0.: 21CV381110