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Court of Appeal, First District, Division 5, California.

The UNITED STATES JAYCEES, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA, Respondent, Wendy R. BELL, et al., Real Parties in Interest.


Decided: September 15, 1983

Carl D. Hall, Jr., Tulsa, Okl., A. James Robertson II, Dirk M. Schenkkan, Howard, Rice, Nemerovski, & Falk, P.C., San Francisco, for petitioner. County Clerk, Santa Clara County Superior Court, Palo Alto, for respondent. William R. Irwin, Donald W. Brown, Brobeck, Phleger & Harrison, San Francisco, Danielle E. deBenedictis, Anne Josephson, Nutter, McClennan & Fish, Boston, Mass., for real parties in interest.

By petition for writs of certiorari and prohibition United States Jaycees, a defendant in a pending civil action, seeks reversal of a contempt adjudication and a declaration limiting the scope of the preliminary injunction allegedly violated.   We conclude that the contempt adjudication must be annulled.

The underlying action was brought by Palo Alto Jaycees, a “Local Organization Member” of United States Jaycees, to enjoin United States Jaycees (and California Jaycees, an intermediary organization which has taken a passive stance throughout) “from discriminating in their membership policy on the basis of sex.”   The merits of the underlying action are not before us and we intimate no opinion as to them.


a. Background

United States Jaycees is a nonprofit corporation the Local Organization Members of which “are made up of young men who devote a portion of their time to community services while developing leadership experience for individual members.”   United States Jaycees bylaws 4–2 and 4–4 specify that officers and individual members shall be “young men between the ages of eighteen (18) and thirty-five (35) years of age ․”

Palo Alto Jaycees, a nonprofit California corporation, is a Local Organization Member chartered by United States Jaycees.   Palo Alto Jaycees holds a revocable license to use the federal trademarks, service marks, and collective membership marks of United States Jaycees, which include the term “Jaycees” itself.   Both the charter and the license are held subject to the United States Jaycees bylaws.

Since 1976 Palo Alto Jaycees has been affiliated with a “holding company” called Palo Alto Young Citizens which offers full membership to women and which participates with Palo Alto Jaycees in its various activities.   The “holding company” concept was one of several options for participation by women in Jaycees activities suggested in 1976 by a “Jaycee Membership Study Committee” of United States Jaycees itself.

In 1980 United States Jaycees repudiated the “holding company” option.   Palo Alto Jaycees was advised that by votes at general meetings United States Jaycees had “clearly voiced its opinion that The U.S. Jaycees were to be an organization of young men.”   Over a period of several months United States Jaycees reiterated its conclusion that the use of “a ‘holding company’ or any other device” to permit women to be de facto members would be “in noncompliance with” the bylaws.   Palo Alto Jaycees was informed that its continuing affiliation with Palo Alto Young Citizens would be brought before the United States Jaycees Board of Directors meeting scheduled for January 15, 1981.

On January 12, 1981, Palo Alto Jaycees and five women filed the underlying action in respondent superior court.

b. Orders

1. Order to show cause.

On the day the action was filed, upon plaintiffs' ex parte application, respondent court issued an order to show cause “why a preliminary injunction should not be issued in this matter during the pendency of this action as follows:

“Restraining you from discriminating in your membership policy on the basis of sex, and, in particular, from taking any action to revoke the charter of the Palo Alto Jaycees, or, if you have already taken any action to revoke the charter of the Palo Alto Jaycees, restraining you from enforcing such action and from taking any further action which discriminates, directly or indirectly, against the Palo Alto Jaycees, and its ‘holding company’ the Palo Alto Young Citizens, or any of the members of either of these two organizations, on the basis of sex.”

2. Temporary restraining order.

Into the same document the court incorporated the following temporary restraining order:

“Pending a hearing on this matter, you are hereby enjoined from taking any action of any kind or nature, direct or indirect, to revoke the charter of the Palo Alto Jaycees because they are utilizing a holding company, the Palo Alto Young Citizens, through which females are in reality individual members of the Palo Alto Jaycees or [ ] for any other reason related to the fact that the Palo Alto Jaycees do not discriminate on the basis of sex.”

3. Preliminary injunction.

These orders were served on defendants.   According to an attorney who then represented Palo Alto Jaycees, counsel agreed “that the preliminary injunction would be entered identical to the temporary restraining order, and [an attorney for United States Jaycees] indicated to me that ․ they had concluded that there was no point in opposing it, the court would enter such injunction so they would consent to it.  [¶] ․ [¶] ․  [H]e indicated to me basically that they would not oppose the order because they felt that the court would issue it, anyway, so they would go along with the order during the pendency of the proceedings.”   United States Jaycees neither filed written opposition nor appeared at the hearing.   On February 20, 1981, respondent court issued a preliminary injunction, essentially identical to the temporary restraining order.

c. Federal court action.

Seventeen months later, on July 21, 1982, the Executive Committee of United States Jaycees found Palo Alto Jaycees in violation of bylaw 4–4 and authorized an action in federal district court to terminate Palo Alto Jaycees' license to use the organization's federal trademarks, service marks, and collective membership marks.   The decision was based on the fact that Palo Alto Jaycees was continuing to admit women to de facto membership.   On July 28, 1982, United States Jaycees filed an action in the United States District Court for the Northern District of California for “trademark infringement,” praying that Palo Alto Jaycees and affiliated persons “be enjoined and restrained from using [United States Jaycees'] registered mark ‘JAYCEES' or any confusingly similar designation” and for ancillary relief.

d. Contempt proceedings.

On October 4, 1982, Palo Alto Jaycees asked respondent court to find that United States Jaycees was in contempt of the preliminary injunction and to order that United States Jaycees “refrain from further prosecution” of the federal action.   Acknowledging that “in literal terms, a revocation of [Palo Alto Jaycees'] license to use the name ‘Jaycees' is not a revocation of [its] charter,” Palo Alto Jaycees nevertheless termed the “attempt to revoke the ․ license” a “willful violation of the preliminary injunction.   Prohibiting the Palo Alto chapter from using the name ‘Jaycees' is tantamount, in all practical terms, to charter revocation.”

At hearings on the contempt application argument focused primarily on (1) United States Jaycees' contention that respondent court lacked power to punish recourse to a federal court, and (2) the question whether United States Jaycees had waived this contention by failing to oppose issuance of the preliminary injunction.

On January 14, 1983, respondent court issued a five-page “memorandum of opinion” by which the court found United States Jaycees in contempt and ordered it to “reinstate its consent to [Palo Alto Jaycees'] use of the name ‘Jaycees' and pay a fine of $100 per day from date hereof so long as such consent is withheld.”

In the course of its memorandum of opinion respondent court recited that it had theretofore “issued its preliminary injunction restraining the defendants and each of them from ‘discriminating in (your) membership policy on the basis of sex, and, in particular, from taking any action to revoke the charter of the Palo Alto Jaycees ․ and from taking any further action which discriminates, directly or indirectly, against the Palo Alto Jaycees'.   The Defendant U.S. Jaycees had knowledge of the order.”

Respondent court acknowledged United States Jaycees' contentions that in the abstract the court lacked power to punish recourse to federal courts but found that “the Defendant by implication consented to this Court's injunction” and held “that the Defendant by its actions waived its right to prosecute a Federal action, a right which it can waive like any other.”

Respondent court concluded that “[t]he twin actions of the Defendant U.S. Jaycees on July 21 [the date on which United States Jaycees voted to terminate the trademark license] and July 28 [the date on which the federal trademark action was filed] are and each of them is clearly in violation of this Court's injunction ․  Even more, these actions were willful and deliberate and indicate a determination to continue a policy of sexual discrimination in the face of an order to stop it.”

The parties treat respondent court's memorandum of opinion as a final and formal contempt adjudication;  no other contempt order appears in the record.

e. Proceedings in this court.

United States Jaycees then filed this writ petition.   We denied United States Jaycees' application for a temporary stay of contempt sanctions but advised United States Jaycees that it could withhold payment of accruing sanctions until we had ruled on the petitions.   We are informed that the federal district court has stayed further proceedings in the trademark infringement action pending our decision.   We issued the writ of certiorari.   The issues have been briefed and argued.


 In addition to certiorari United States Jaycees seeks a writ of prohibition, asking this court to prohibit the superior court from construing the preliminary injunction to inhibit United States Jaycees' access to federal court.   We conclude that procedurally United States Jaycees is not entitled to the writ.  “The writ of prohibition arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.”  (Code Civ.Proc., § 1102.)   The judicial act to be arrested must be threatened and must not be completed.  (5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 36, p. 3810;  id., § 37, p. 3811.)   United States Jaycees argues that it “seeks to preclude any further efforts to find it in contempt ․ by reason of its actions on July 21 and 28 or in maintaining the federal suit,” and that in this light there is the requisite measure of threatened or continuing judicial action.   But it is apparent that the preliminary injunction and the contempt adjudication are both completed acts, and that no further enforcement procedures are in the relevant sense threatened at this stage:  The jurisdictional limitation which United States Jaycees asserts is at this point “hypothetical” and not subject to delineation by writ of prohibition.


 On the other hand it is well established, contrary to Palo Alto Jaycees' contentions, that certiorari is a procedurally appropriate vehicle for review of a contempt adjudication.  (5 Witkin, supra, § 25(a), p. 3799.)

1. Violation of preliminary injunction.

 The contempt of which United States Jaycees was accused was “[d]isobedience of any lawful judgment, order, or process of the court.”   (Code Civ.Proc., § 1209, sub. (a)(5).)   Patently such a contempt must be predicated upon, and an adjudication of such a contempt must find, violation of an existing order:  Asserted violation of an order which did not exist at the time of the conduct complained of would not meet the statutory definition.   (Cf. Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604, 88 Cal.Rptr. 357;  In re Blaze (1969) 271 Cal.App.2d 210, 212, 218–219, 76 Cal.Rptr. 551.)

United States Jaycees contends that the memorandum of opinion purports to find a violation not of the preliminary injunction as issued but rather of language, incorporated in the initial order to show cause, which was superseded by the preliminary injunction and never became a binding order of the court.

We conclude that United States Jaycees is correct.

Contrary to the recitation in the memorandum of opinion the preliminary injunction does not in terms restrain United States Jaycees from “discriminating in (your) membership policy on the basis of sex, and, in particular, from taking any action to revoke the charter of the Palo Alto Jaycees ․ and from taking any further action which discriminates, directly or indirectly, against the Palo Alto Jaycees.”   The quoted language had appeared in the superior court's order to show cause, but neither in its temporary restraining order nor in the preliminary injunction it ultimately issued.   There is a significant literal distinction between the order to show cause and the preliminary injunction:  The order to show cause would have enjoined all discrimination in membership policy on the basis of sex including (but not literally limited to) revoking the Palo Alto Jaycees' charter on that basis.   The preliminary injunction enjoins only revocation of the charter, directly or indirectly, for any reason related to the fact that Palo Alto Jaycees does not discriminate in membership policy on the basis of sex.

Palo Alto Jaycees argues that “[I]t is clear from the record ․ that the Judge found the United States Jaycees to have violated the preliminary injunction as entered, and not as proposed.”

The crux of this argument is that from the record it is apparent that United States Jaycees' decision to revoke consent to use the Jaycees trademark was, and was intended to be, tantamount to a decision to revoke Palo Alto Jaycees' charter, and that respondent court recognized that this was so.   We are inclined to agree:  United States Jaycees' argument that “no person of ordinary intelligence reading the ․ Preliminary Injunction would equate charter revocation with suit under the federal trademark laws” is disingenuous, and respondent court's remarks at hearing make plain that it perceived the interrelation between the Jaycees trademark and a Jaycees charter.

 But as United States Jaycees point out, the existence of evidence sufficient to support a finding will not, in a contempt proceeding, remedy a failure to make the finding.  (Martin v. Superior Court (1962) 199 Cal.App.2d 730, 738, 18 Cal.Rptr. 773.)   The superior court was required to make an explicit finding of facts violative of the literal terms of the preliminary injunction (cf. Andrews v. Superior Court (1960) 183 Cal.App.2d 756, 759, 7 Cal.Rptr. 194):  In this instance, a finding that United States Jaycees had taken direct or indirect action to revoke Palo Alto Jaycees' charter because Palo Alto Jaycees had not “discriminate[d] in their membership policies on the basis of sex.”   Neither of the findings the superior court did make meets this standard:

(1) The finding that “[t]he twin actions of the Defendant U.S. Jaycees on July 21 and July 28 are and each of them is clearly in violation of this Court's injunction” does not explicitly define the nature of the perceived violation.

(2) The finding that “these actions were willful and deliberate and indicate a determination to continue a policy of sexual discrimination in the face of an order to stop it” reflects either a reference to the arguable intent of the preliminary injunction rather than (as the rules applicable to contempt adjudications require) to its literal provisions or an erroneous reference to the superseded order to show cause.   The fact that the superior court had, earlier in the memorandum of opinion, quoted directly from the order to show cause tends to support the erroneous-reference hypothesis.

Probably respondent court's references to the phraseology of the order to show cause were simply inadvertent.   But the rules applicable to contempt findings are strict, and this action illustrates the need for strictness.   The order to show cause is measurably broader than the preliminary injunction:  While any violation of the preliminary injunction would arguably be a violation of an order in the language of the order to show cause as well, not every violation of the language of the order to show cause would be a violation of the preliminary injunction.   For example, United States Jaycees might engage in conduct which amounted to discrimination in membership policy on the basis of sex but not to direct or indirect revocation of Palo Alto Jaycees' charter:  Such conduct would violate the language of the order to show cause but not the preliminary injunction.   While the trial court expressly finds sexual discrimination it nowhere, expressly or by plausible implication, finds that the acts complained of amounted to an attempt to revoke the Palo Alto Jaycees' charter.   It is simply unclear from the memorandum whether the trial court addressed the question whether the acts were tantamount to revocation or attempted revocation.   A fortiori it cannot be determined from the memorandum how the trial court would have answered the question.

At oral argument Palo Alto Jaycees asked for an opportunity to seek correction of the contempt order in the trial court by motion under Code of Civil Procedure section 473.   The suggestion comes far too late at this stage of the proceedings, and in any event we question whether section 473 relief would be appropriate to the mistake reflected in this record and whether respondent court retained jurisdiction, in the contempt proceeding, to grant this or any other form of corrective relief (cf. Martin v. Superior Court, supra, 199 Cal.App.2d 730, 739, 18 Cal.Rptr. 773;  County of Lake v. Superior Court (1977) 67 Cal.App.3d 815, 818, 136 Cal.Rptr. 830).

The contempt adjudication must be annulled.

b. The federal court action.

Strictly speaking our disposition of the foregoing issue renders discussion of United States Jaycees' additional contentions unnecessary.   It is apparent, however, that this will not be the end of pretrial maneuvering between these well-represented adversaries.   For the assistance of the trial court we briefly discuss two additional issues, both thoroughly briefed and argued by the parties (cf., e.g., Vasquez v. Superior Court (1971) 4 Cal.3d 800, 821 fn. 18, 94 Cal.Rptr. 796, 484 P.2d 964):  Whether under the Supremacy Clause of the United States Constitution respondent court lacked jurisdiction to punish as a contempt United States Jaycees' recourse to a federal court;  and whether by failing to oppose the initial preliminary injunction United States waived its right to invoke the Supremacy Clause in this way.

1. Waiver

The most difficult theoretical problem in this proceeding is whether respondent court had power to issue a contempt adjudication which unquestionably would affect a pending federal court action.   At the two hearings and in some of the language of its memorandum of opinion respondent court seemed prepared to acknowledge that at least under the United States Supreme Court decisions summarized below a state court could not as an abstract proposition interfere with a litigant's recourse to federal courts.   But respondent court concluded that United States Jaycees “by its actions waived its rights to prosecute a Federal action ․”

 United States Jaycees contends that the waiver issue itself is not within the jurisdiction of respondent court.   We are satisfied, however, that respondent court could properly have adjudicated at least the question whether United States Jaycees might be deemed to have waived any jurisdictional objection to a contempt adjudication predicated on its decision to revoke the trademark license and the act of bringing the federal trademark action.

There is ample evidence to support a conclusion that United States Jaycees consented to the terms of the preliminary injunction.   We assume for the sake of discussion that what respondent court found was a waiver of the right to object, on Supremacy Clause grounds, to a conclusion that those terms would apply to its federal court action.   The remaining issue would be whether, on the record, the finding of waiver could be supported.

 The applicable law is well settled;  Palo Alto Jaycees' statement may be accepted:  “California and federal courts have defined ‘waiver’ as a knowing, intentional ‘relinquishment or abandonment’ of a known right or privilege.  Roberts v. Superior Court (1973) 9 Cal.3d 330, 343 [107 Cal.Rptr. 309, 508 P.2d 309] ․;  Blair v. Pitchess (1971) 5 Cal.3d 258, 274 [96 Cal.Rptr. 42, 486 P.2d 1242] ․  To establish a waiver, the party making the claim must show:  (1) an existing right, benefit, or advantage;  (2) knowledge, either actual or constructive, of the right's existence;  and (3) either an actual intention to relinquish it, or ‘conduct’ so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished.'  Outboard Marine Corp. [v. Superior Court (1975) 52 Cal.App.3d 30, 41 [124 Cal.Rptr. 852].].”

 Under these rules this record does not support the finding of waiver.   The federal court action was not filed until 17 months after the preliminary injunction issued.   The record does not reflect that anyone mentioned, and does not support an inference that anyone contemplated, in February 1981, that a federal court action would be filed in July 1982.

2. Supremacy Clause.

 So far as applicable to the contempt adjudication, United States Jaycees' Supremacy Clause contention is that a state court lacks jurisdiction to punish as a contempt a party's attempt to litigate a dispute in a federal court.   United States Jaycees relies on three well-known United States Supreme Court decisions:  Donovan v. City of Dallas (1964) 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409, General Atomic Co. v. Felter (1977) 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199, and General Atomic Co. v. Felter (1978) 436 U.S. 493, 98 S.Ct. 1939, 56 L.Ed.2d 480.   These decisions document an evolution in Supreme Court thinking from the well-recognized principle of judicial comity “that state and federal courts would not interfere with or try to restrain each other's proceedings” (Donovan, supra, 377 U.S. at p. 412, 84 S.Ct. at p. 1582) to a forthright declaration that under the Supremacy Clause a litigant “has an absolute right to present its claims to federal forums” and that a state court is “without power” to interfere with that right (General Atomic Co. v. Felter, supra, 436 U.S. at p. 497, 98 S.Ct. at p. 1941).   The language of the two General Atomic decisions, in particular, is quite broad.   The rules these decisions state explicitly extend not only to state court injunctions but also to state court contempt proceedings in enforcement of injunctions.   We conclude that respondent court was in any event without power to punish as a contempt United States Jaycees' recourse to federal court.   United States Jaycees' July 21, 1982, decision to withdraw consent to use the trademark was, in our view, integral to the trademark action and hence to United States Jaycees' constitutionally-protected right to use the federal forum.

This is not to say that the trademark infringement action was not in its essence contumacious of respondent court's preliminary injunction.   We say no more than that, contumacious or not, United States Jaycees' federal action was immune from respondent's court's contempt power.   We recognize an emerging risk, in light of Donovan and the General Atomic decisions, that the traditional powers of state courts over litigants may be eroded by the measure of those litigants' abilities to find ways to pursue their ends in federal forums.   We can only hope that federal courts, exercising their less fettered powers of comity and abstention, will see fit to curb any apparent abuse.

We need not reach any of the remaining contentions.

The contempt adjudication represented by respondent superior court's January 14, 1983, memorandum of opinion is annulled.   The petition for writ of prohibition is denied.   Each party shall bear its own costs herein.

I concur in the result for the reasons articulated by Justice King in that portion of the decision entitled, “Supremacy Clause.”

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.