Reliable Enterprises, Inc. v. Superior Court

REGAN, Acting P. J.

Concurring and Dissenting.—I concur in part and dissent in part. I would affirm all eight judgments of contempt, including the three arising out of conduct on November 24, 1982. The majority con- *628 eludes that the failure to amend the affidavits to conform to the testimony at the hearing alleging these three incidents substantially prejudiced the rights of petitioners. I disagree.

It is true the affidavits were not amended to conform to the proof admitted concerning three additional lewd acts on November 24, 1982, introduced as testimony at the hearing by Detective Gully. The trial court admitted proof of the additional evidence over objection. Although the affidavits were not amended, I do not think it is a fatal error. Code of Civil Procedure, section 1211.5, subdivision (c) 1 , allows reversal only where an error results in a miscarriage of justice.

In assessing whether a miscarriage occurred, I would first note that the order to show cause, served on petitioners, charged that petitioners refused to obey the injunction, and, thus, they had notice to defend themselves. Petitioners cannot be surprised to have to defend themselves from evidence admitted in proof when (1) the order alleging disobedience of an injunction was served on petitioners September 21, with a hearing scheduled for November 29, and (2) petitioners did offer general denials that lewd acts ever occurred.

Furthermore, petitioners failed to counter the allegations concerning November 24 with any defense witness, testimony, legal theory or fact. I may infer that their offer of nothing more than a general denial regarding other incidents and other days means they had no specific defense to prepare for other incidents and other days. In fact, they did not preserve their objection to testimony for one of those days; they failed to move for a mistrial or for a continuance to prepare additional defense or to obtain witnesses. Petitioners now contend the failure to provide fair warning precluded an opportunity to prepare a defense, but they failed to take steps at the hearing to request any such opportunity. Finally, they have offered neither the trial court nor this court what that defense would have been.

Nor do I believe it is controlling here whether the People offered evidence of acts on November 24 for any purpose other than establishing additional contempts. There was no ambiguity between the purpose for which the evidence was offered and for which it was admitted; the trial court stated for the record, and quite correctly, that the court was not limited to considering the lewd incidents specified in the affidavit. The court made it per *629 fectly clear all the incidents were to be used. Thus, there was no element of surprise. The only error is the court’s failure to conform the affidavits to the proof adduced at trial. I believe that error did not prejudice any substantial right of petitioners.

I have examined the record of the entire cause, and the evidence admitted at the hearing provided overwhelming proof of their wilful disobedience of the injunction, all the time, day after day. They cannot be surprised at the hearing to have to defend themselves from allegations of violations on days other than the specific day noted in Gully’s affidavit. No other conceivable result could have been forthcoming from this hearing than a contempt order for all eight violations. There was no miscarriage of justice.

I would affirm the contempt order.

Code of Civil Procedure section 1211.5, subdivision (c), provides in part: “(c) . . . No order or judgment of conviction of contempt may be set aside, nor new trial granted, for any error as to any matter of pleading in [the] affidavit or statement, unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Italics added).