Oil Workers International Union v. Superior Court , 103 Cal. App. 2d 512 ( 1951 )

PETERS, P. J.—I concur and dissent.

Except in one particular, I concur with everything that is said and decided in the majority opinion. That opinion fully and fairly states the facts, and, except in this one respect, correctly applies the law to those facts. I disagree with the majority only with their disposition of the contempt order against Prank M. Silva based upon the Briggs complaint. It is my opinion that there is no evidence to support the finding that Silva had notice of the restraining order when these acts were committed, and therefore did not violate the restraining order.

The Briggs complaint charged Silva and others with certain acts in violation of the restraining order alleged to have been committed on September 22, 1948. I have no doubt at all that the evidence supports the finding that Silva committed the charged acts. The evidence recited in the majority opinion demonstrates that to a certainty. The question is whether the evidence supports the finding that Silva knew of the provisions of the order when the acts were committed. This element of proof was indispensable. The burden of proof rested on those asserting knowledge to prove it.

The majority concede that there is no direct evidence of knowledge on the part of Silva on or before September 22,1948, but hold that the trial court indulged in a reasonable inference that Silva then had knowledge on that date. This inference is based upon the following facts:

1. When directly asked if he knew of the restraining order on September 22, 1948, Silva testified that he did not, and that he did not gain such knowledge until October 6th or 7th when first told by a deputy sheriff. Earlier in the trial he had testified as to certain events which occurred on September 15th. During that testimony, when asked if he had knowledge of the injunction on September 15t.h—and no other date was then involved—he testified that he then did not have such knowledge, but that later he found out from a deputy sheriff, who told him about the injunction “and that was, say, about, I should say, maybe a week or so after this happened, maybe; I am not sure now.” When confronted with this testimony after he had testified that he did not have such knowledge on the 22d, he testified: “You must remember I said I wasn’t sure what time it was—might be a week, might be two weeks, might be three weeks. ’ ’

This is treated by the majority as an admission from which the trial court could reasonably infer that Silva had the requisite knowledge on September 22d, a week to the day after September 15th. This evidence cannot be distorted into an admission that Silva had knowledge on the 22d. This case is quasi criminal in character, and the burden of proof is on those asserting knowledge. At best, the quoted evidence supports a guess, surmise or conjecture that Silva might have had the requsite knowledge on the 22d, but no reasonable inference to that effect can be predicated thereon.

2. Considerable weight, is given in the majority opinion to the evidence that small placards setting forth the terms of the restraining order were posted at each entrance, and that Silva admittedly, prior to the 22d, picketed near various entrances to the plant. A guess is made that he may have seen the notices. The majority state that it taxes “human credulity” to believe that Silva did not read the signs because he had the opportunity to read them. He testified that he did not read them, and there is no contradiction of his testimony. Even if his testimony was disbelieved by the trial court, as it apparently was, is mere opportunity to acquire knowledge to be substituted for proof of knowledge, where that element of proof is essential? Does proof of opportunity meet the burden of proof? I think not.

3. In the statement of facts relating to the acts committed by Silva great emphasis is laid upon the evidence that Silva knew Casey, a union official who knew of the restraining order, and that Silva was frequently seen in Casey’s company prior to the 22d. It is implied, apparently, that Casey must have told Silva about the restraining order and that Silva must have learned of it in this fashion. If this is the proper interpretation of the majority opinion, the conclusion reached is certainly not sound. Again, proof of opportunity of acquiring knowledge cannot be substituted for proof of knoivledge. This is carrying the concept of guilt by association far beyond permissible limits.

Whether these bits of evidence be considered separately or together they furnish no logical or reasonable basis for the inference that Silva knew of the provisions of the restraining order on the 22d. The majority, in my opinion, have indulged in mere guess, surmise and conjecture on this issue.

The majority opinion sets forth at length the evidence showing that Silva committed several of the prohibited acts. Undoubtedly, he committed those acts. Undoubtedly, he committed acts that not only violated the restraining order, but constituted violations of the criminal law. They were bad acts and wrongful acts. But he is not charged with simply committing those acts. He is charged with violating the terms of a restraining order. He cannot be held to have violated the restraining order unless he knew of it. This is the key issue. In my opinion, those asserting such knowledge failed to prove it. This portion of the order should be annulled.

In all other respects I agree with the majority opinion.