Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV031200
CANTIL-SAKAUYE, J.
In this case we review a court’s order of contempt predicated on a violation of its previously issued injunction. Such injunction in turn is predicated on a noncompete agreement between the parties. In 2001, William Thompson and Charles Rich sold the stock in their company, Thompson & Rich Crane Service, Inc., to Maxim Crane Works (Maxim). The stock purchase agreement included a noncompete clause under which Thompson and Rich agreed not to engage in the crane rental business for five years in certain territory. Thompson and Rich had another company, All-Cal Equipment Service, Inc. (All-Cal). In 2005, Rich sold his stock in All-Cal to the owners of W.C. Maloney, Inc. (W.C. Maloney). Near the end of the five-year period of the noncompete agreement, Maxim sued Thompson, All-Cal, and W.C. Maloney alleging breach of the noncompete agreement, by renting cranes, and intentional interference with contractual relations. In connection with that action, Maxim obtained a preliminary injunction, enjoining Thompson from engaging in the business of crane rental and enjoining All-Cal and W.C. Maloney from interfering with Maxim’s rights under the stock purchase agreement. A year later, Maxim applied for a contempt order, contending Thompson and All-Cal were violating the injunctive order. The superior court issued an order of contempt, fining Thompson and All-Cal each a total of $10,000 for 10 specified violations of the injunctive order. Maxim was awarded $67,392.84 in attorney fees and costs. We issued a writ of certiorari to review the proceedings.
“A judgment of contempt is not appealable. ([Code Civ. Proc.,] § 904.1, subd. (a); § 1222.) The proper remedy to obtain appellate review where a monetary fine has been imposed is by a petition for a writ of certiorari.” (Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1584, fn. 18.)
Thompson and All-Cal contend the superior court lacked jurisdiction over the contempt proceedings because the injunctive order was invalid. They contend the injunction is vague and that it impermissibly broadened the scope of the noncompete agreement. They further contend the superior court failed to make adequate factual findings to support the order of contempt. Finally, they challenge the award of attorney fees.
We affirm the order of contempt. The injunctive order is valid. Understood in the context of the hearing on the preliminary injunction, the injunction is not vague. At best, Thompson and All-Cal show that the injunction might be erroneous, based on a misinterpretation of the Stock Purchase Agreement. Even if erroneous, the injunction is not void as it was not issued in excess of the court’s jurisdiction. Therefore, it cannot be collaterally attacked at the contempt hearing. Substantial evidence supports the court’s findings of 10 instances of contempt. The award of attorney fees is reversed for further proceedings to determine the reasonableness of the fees and costs and to permit Thompson and All-Cal to contest the amount of the award.
FACTUAL AND PROCEDURAL BACKGROUND
Thompson and All-Cal
In the 1990’s, William Thompson, with partner Charles Rich, started Thompson & Rich Crane Service, which rented cranes. Cranes are rented on either a bare or operated basis; a bare rental is without an operator and an operated rental is with an operator.
Rich owned All-Cal, which provided equipment services. Thompson became a half owner of All-Cal when Thompson & Rich Crane Service was formed. All-Cal does crane repair, railroad repair, rigging and specialty equipment fabrication, railcar tie down, certified sales and repair of cranes, and trucking. All-Cal does significant work for railroads, particularly Burlington Northern Santa Fe (BNSF). All-Cal uses cranes to perform much of its work for BNSF; for example, to lift railroad cars on and off the tracks. Prior to the sale to Maxim, All-Cal provided the labor for this work and Thompson & Rich Crane Service provided the rented cranes.
Sale to Maxim and The Noncompete Agreement
In December 2001, Maxim bought the stock in Thompson & Rich Crane Service from Thompson and Rich. The stock purchase agreement contained a noncompete clause. Under that clause, Thompson and Rich, as sellers, agreed they “shall not engage, nor have any affiliation (as defined below) with any Person which engages in the business of providing, offer for sale, or solicit sales for, or offer or provide, any products or services currently provided and/or sold by the Company, in the conduct of the Business, including without limitation, the providing of crane and other lifting equipment (a “Similar Business”) anywhere in the states of California, Arizona, Nevada, or Oregon.”
“Affiliation” was defined in the noncompete clause as “any direct or indirect interest in a Person whether as an officer, director or employee, investor, partner, stockholder, sole proprietor, trustee, consultant, agent, representative, broker, promoter or otherwise.” The “Business” was defined as “the business of selling, renting and leasing hydraulic truck cranes, rough terrain cranes, conventional cranes, and other equipment and components thereof.” A “Person” included “an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.”
The noncompete clause permitted sellers to engage “in the business of selling used cranes and other equipment, including through the use of ‘rent to own’ transactions under customary terms designed to sell the equipment.”
The noncompete clause further provided: “Nothing in this Agreement shall prohibit Seller or All-Cal Equipment Services, Inc. from continuing to perform all business activities that it has in the past and with existing and new customers except that the noncompete shall apply to operated and bare crane rental; for example and not by way of limitation Seller and All-Cal Equipment Service, Inc. may engage in boom repair, railroad repair, rigging gear fabrication, rail car tie down, specialty fabrication, sales and repair of cranes, and trucking.”
The noncompete clause also prohibited Thompson and Rich from soliciting customers of Thompson & Rich Crane Service on behalf of a similar business, and hiring or inducing employees of Thompson & Rich Crane Service to leave their employ.
After the sale, Thompson worked for Maxim, as did his daughter Kelly Laviolette. Laviolette had worked as a dispatcher at Thompson & Rich Crane Service; she had the same job at Maxim. All-Cal continued to do work for BNSF Railroad. All-Cal rented a crane from another company in order to perform the work and passed along the cost, with a markup, to BNSF. When Thompson was employed at Maxim, All-Cal used Maxim cranes for this work. Occasionally, All-Cal used cranes from another company when a Maxim crane was not available; Maxim never objected to this practice. BNSF requires contractors that come onto its property to carry $6 million in liability insurance. Few companies have that much insurance.
Thompson left Maxim’s employ in the fall of 2004, due to broken promises about his position. Maxim fired Laviolette the day after Thompson quit. Thompson and Laviolette then went to work for All-Cal. After Thompson left Maxim, the relationship between Maxim and All-Cal deteriorated. When Maxim stopped using All-Cal for repairs, All-Cal stopped using Maxim cranes, and rented cranes from other companies to perform its railroad work.
W.C. Maloney, Inc.
In August 2005, William Maloney and Glen Sweesy, the owners of W.C. Maloney, purchased Rich’s 50 percent interest in All-Cal. W.C. Maloney’s business is demolition, site clearing, concrete cutting and crane services. Ninety percent of its business is demolition and site clearing.
Maxim’s Lawsuit
In November 2006, about six weeks before expiration of the five-year noncompete agreement, Maxim filed suit against Thompson, All-Cal, and W.C. Maloney for breach of contract and interference with contractual relations. Maxim alleged that Thompson never wanted to sell his stock in Thompson & Rich Crane Service and “develop[ed] a scheme to defraud Maxim Crane whereby he would continue to engage in the Business” of renting cranes. The complaint alleged Thompson, through All-Cal and W.C. Maloney, purchased and financed numerous cranes and used them to engage in the business of crane rentals. The complaint sought damages and injunctive relief.
In February 2007, Maxim amended its complaint to add Rich and Sweesy as defendants.
Preliminary Injunction
Maxim immediately applied for a temporary restraining order and an order to show cause for a preliminary injunction. The court entered a stipulated temporary restraining order and set a hearing for the preliminary injunction. Under the stipulated temporary restraining order, Thompson was restrained and enjoined from engaging in the business of renting cranes with any other person or business, including All-Cal and W.C. Maloney.
At the end of 2006, after a hearing, the court issued a preliminary injunction. Thompson was enjoined from engaging directly or indirectly, including an affiliation with All-Cal, W.C. Maloney, Maloney or Sweesy, “in the business of renting and leasing hydraulic truck cranes, rough terrain cranes, conventional cranes, and all other cranes and lifting equipment on an operated or bare rental basis, including without limitation through the provision of any services whatsoever”; soliciting customers or employees from Maxim; and working as a crane operator without giving Maxim notice and the right of first refusal to hire Thompson. All-Cal and W.C. Maloney were enjoined from interfering with Maxim’s rights under the stock purchase agreement by engaging in the business of renting cranes with Thompson or assisting Thompson in violating the injunction.
Four months later, in April 2007, the injunction was modified to require that Maxim post a $250,000 bond.
Maxim’s Application for Contempt
In January 2008, a year after the preliminary injunction issued, Maxim applied for an order to show cause re contempt. As to Thompson, All-Cal and W.C. Maloney, Maxim requested specific fines and sanctions for each violation of the injunctive order. Maxim also sought attorney fees of $22,400 “plus fees incurred from this date forward.”
Maxim claimed that Thompson was violating the injunction by engaging in crane rentals; he used W.C. Maloney’s equipment and personnel to rent cranes. Thompson continued the improper conduct through another company, Titan Crane & Rigging (Titan). Maxim first discovered the violations when an employee saw Thompson and cranes associated with Thompson preparing to perform lift services at BNSF. Documents obtained through discovery revealed numerous other violations. Maxim claimed there were at least 130 violations of the injunction, consisting of crane rentals by All-Cal, W.C. Maloney or Titan.
Most of these alleged violations occurred before April 6, 2007, when the preliminary injunction was modified to require a bond. Before that date, the preliminary injunction was not valid because there was no bond. (In re Marriage of Van Hook (1983) 147 Cal.App.3d 970, 989.)
Contempt Hearing
One issue at the contempt hearing was All-Cal’s work for BNSF and its use of cranes in that work. Thompson testified that when All-Cal performed work for BNSF he arranged for a crane and billed BNSF for its rental. This practice began after the sale of Thompson & Rich; originally, he rented cranes from Maxim, but after their relationship deteriorated, he rented cranes from other companies. Thompson and All-Cal argued that subbing out crane rentals for that work was not proscribed by the noncompete agreement. Maxim objected to “rehashing” the terms of the preliminary injunction. Maxim argued Thompson and All-Cal were seeking reconsideration without complying with the deadlines or requirements for reconsideration.
We summarize the documentary and testimonial evidence provided at the hearing. Maxim provided evidence, in the form of invoices from 2007, that W.C. Maloney rented cranes to third parties. Maxim contended these cranes belonged to All-Cal. Thompson admitted exhibits 3-8 were W.C. Maloney invoices for the rental of All-Cal cranes to third parties. But, he claimed All-Cal had sold those cranes to W.C. Maloney through rent purchase option agreements. A rent purchase option agreement permits an interested buyer to try out the cranes before purchasing them. W.C. Maloney bought the cranes for its own use, but would rent them out when not using them. W.C. Maloney’s payments to All-Cal were based on W.C. Maloney’s utilization of the cranes. Thompson admitted, however, that none of these crane sales to W.C. Maloney went through. Thompson then sold the cranes to others.
To bolster its case that the purported sales to W.C. Maloney were not true sales and in fact rentals in violation of the injunction, Maxim offered into evidence a series of two agreements covering each crane, one indicating a sale and one a bare rental. Maxim argued these crane purchase agreements were backdated shams. For example, for a certain 75-ton crane, there was an equipment lease and security agreement dated February 1, 2006. The agreement provided for $10,000 monthly rental payments for five years, with the option to purchase at the end of the lease for $100. For the same crane, there was a standard long-term rental agreement also dated February 1, 2006. It provided for a one month bare rental. It further provided that 100 percent of the rent could be applied to purchase for the first 90 days, but no purchase price was set forth, only a replacement value for insurance purposes. All of the bare rental agreements in evidence were dated in 2006, before the injunction.
Maloney, who had a settlement with Maxim pending, testified W.C. Maloney rented four or five cranes from All-Cal. The plan was to purchase them, but they never agreed upon a purchase price. Thompson told him that while he could not rent cranes under the noncompete agreement, it could not stop W.C. Maloney from renting cranes.
Maxim also contended that Thompson was renting cranes through Titan, a company owned by his daughter, his son-in-law Travis Laviolette, and Jonathan Cottingham. Maxim submitted invoices showing crane rentals from Titan to All-Cal for All-Cal’s use on jobs. The work orders indicated Thompson ordered the work. Maxim argued Thompson was violating the noncompete agreement by assisting Titan by providing cranes to it and lining up customers for it.
Maxim provided declarations from two fraud investigators who had conducted surveillance. The first observed Thompson and his son-in-law Travis Laviolette on Titan property. Travis Laviolette entered a crane marked with Titan’s name and drove off the property, followed by Thompson. Travis Laviolette parked the crane and Thompson gave him a ride. The second investigator videotaped a convoy of W.C. Maloney cranes and trucks and the crane lifting equipment.
In a contempt hearing, “live evidence, rather than declarations, is required from witnesses against the alleged contemner, to ensure his or her right to cross-examine. [See CCP § 1217--judge ‘must hear any answer’ which the contempt citee may make and ‘may examine witnesses for or against him’].” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 9:718.2, p. 9(II)-48.5.)
Maxim further contended Titan was a sham corporation. When Titan was incorporated, Thompson’s property was used as the company address. Thompson rented that property to his daughter. Kelly Laviolette, Thompson’s daughter, was secretary of Titan, but she was vague about the corporate documents and she could not describe the business plan. She admitted Titan’s customers were customers of All-Cal and may have been customers of Maxim.
Maxim contended Titan was using All-Cal’s cranes. It presented a declaration that research revealed a 75-ton crane was owned by All-Cal until November 27, 2007. Thompson claimed he sold All-Cal’s cranes to Titan through a broker, Jim Michels. He believed he could have made the sale directly, but he used a third party to appease his partners who were concerned about appearances. There was testimony that Titan was renting out these cranes before funding or financing was in place. Thompson testified he was not surprised Titan’s cranes were still in All-Cal’s name because the financing company had a delay in its DMV work.
The court took the matter under submission.
Order of Contempt
Ninety days after the court took the matter under submission, it issued an order of contempt. The order cited 10 violations of the injunction by Thompson and All-Cal. There were four instances between May and June 2007, when W.C. Maloney rented cranes to Delta Pump. The other six violations were rentals by Titan between September and December 2007.
The order stated the court had jurisdiction over Thompson and All-Cal because the evidence reflected they were properly served with the complaint, the amended complaint, and the injunctive order. The court found the injunctive order valid. The court found Thompson and All-Cal had knowledge of the order, the ability to comply with it, and willfully disobeyed it.
Thompson and All-Cal were each fined $1,000 for each violation of the injunction order. They were also ordered to pay Maxim $67,392.84 in reasonable expenses, including attorney fees.
The attorney fee and cost award was supported by a supplemental declaration, filed and served the same day the court signed the contempt order. Counsel for Maxim declared Maxim had incurred attorney fees of $62,413 in connection with the order to show cause for contempt. Maxim also incurred costs from airfare, hotel fees, and car rental in connection with the hearing in the amount of $4,979.84. Maxim sought to recover this amount, a total of $67,392.84.
Thompson and All-Cal (petitioners) petitioned this court for a writ of certiorari. This court issued a writ of review.
DISCUSSION
I.
The Injunction Was Valid
Petitioners contend the court exceeded its jurisdiction in ordering contempt for violation of the preliminary injunction because the injunction was not a valid order. First, they contend the injunction was vague. Specifically, they argue it is vague as to whether petitioners are permitted to subcontract crane rentals for All-Cal’s work for BNSF and others, passing along the rental cost, with a markup, to the customer. Second, if the injunction does prohibit that practice, petitioners contend the court acted in excess of its jurisdiction by rewriting the terms of the noncompete clause in the Stock Purchase Agreement.
Maxim contends the injunction is valid and clear; petitioners are enjoined from renting cranes, either renting their own cranes or re-renting cranes from a third party. Maxim further contends, as it did at the contempt hearing, that petitioners are too late in challenging the terms of the injunction.
The Injunction Was Not Vague
“To hold a person guilty of contempt for violating an injunction, the acts constituting the contempt must be clearly and specifically prohibited by the terms of the injunction. [Citations.] The party bound by an injunction must be able to determine from its terms what he may and may not do; he cannot be held guilty of contempt for violating an injunction that is uncertain or ambiguous (Ibid.), just as he may not be held guilty of violating a criminal statute that fails to give him adequate notice of the prohibited acts.” (Brunton v. Superior Court (1942) 20 Cal.2d 202, 205.)
Petitioners contend the injunction was vague and ambiguous as to whether All-Cal was permitted to re-rent cranes in the course of providing services to BNSF and other customers. We find this argument disingenuous. In enjoining Thompson from engaging directly or indirectly in the business of crane rentals, the injunction specifically stated this prohibition included “through the provision of any services whatsoever.” The issue of re-rentals was addressed at the hearing on the injunction, with Maxim taking the position that re-rentals were prohibited. Maxim argued its business with BNSF had plummeted; the crane rentals to BNSF now went to W.C. Maloney. Maxim argued All-Cal could continue to do railroad work, but BNSF would have to rent a crane from someone else. The court obviously agreed with Maxim’s position by prohibiting crane rentals “through the provision of any services whatsoever.” We find the injunction was clear as to what was prohibited activity.
The Injunction is Not Void and Therefore May Not Be Collaterally Attacked
We turn now to the question whether prohibiting re-rentals exceeded the scope of the non-compete clause in the stock purchase agreement. We first consider whether petitioners may raise this issue in the contempt proceedings rather than by a proceeding to correct, modify or annul the injunction.
Disobedience of any lawful judgment, order or process of the court may be punished by contempt. (Code Civ. Proc., § 1209, subd. (a) 5.) “An order of contempt cannot stand if the underlying order is invalid. [Citation.]” (In re Misener (1985) 38 Cal.3d 543, 558.) California permits collateral attack on a void injunction at the contempt proceedings.
“Some other jurisdictions require persons affected by injunctive orders to challenge the injunctive order directly, and in the meantime, to obey the order. Disobedience of the order is punished as contempt whether the order is valid or not. This is known as the ‘collateral bar’ rule. California law is otherwise.” (People v. Gonzalez (1996) 12 Cal.4th 804, 818, fn. omitted.) In California, a person subject to a court’s injunction may elect whether to challenge the validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court. (Ibid.) A person facing contempt charges for violating the terms of an injunction, may challenge the validity of that injunction, even if no such claim was made when the injunction issued. (Ibid.)
“In this state a person affected by an injunctive order has available to him two alternative methods by which he may challenge the validity of such order on the ground that it was issued without or in excess of jurisdiction. He may consider it a more prudent course to comply with the order while seeking a judicial declaration as to its jurisdictional validity. [Citation.] On the other hand, he may conclude that the exigencies of the situation or the magnitude of the rights involved render immediate action worth the cost of peril. In the latter event, such a person, under California law, may disobey the order and raise his jurisdictional contentions when he is sought to be punished for such disobedience. If he has correctly assessed his legal position, and it is therefore finally determined that the order was issued without or in excess of jurisdiction, his violation of such void order constitutes no punishable wrong. [Citations.]” (In re Berry (1968) 68 Cal.2d 137, 149.)
While disobedience of a void injunction is not contempt, the same is not true for an injunction that is not void, but merely erroneous. An erroneous injunction must be obeyed as long as the court had subject matter and personal jurisdiction. (People v. Gonzalez, supra, 12 Cal.4th at pp. 822-823; Signal Oil etc. Co. v. Ashland Oil etc Co. (1958) 49 Cal.2d 764, 776 & fn. 6.) An erroneous order is not necessarily an order in excess of the court’s jurisdiction. (People v. Gonzalez, supra, at p. 823.) For example, an injunctive order enforcing an invalid contract, the invalidity of which is not apparent on its face, is not an injunction issued in excess of the court’s jurisdiction. (Ibid.; In re Berry, supra, 68 Cal.2d 137, 148.)
An injunction exceeds the court’s jurisdiction where the court lacks subject matter or personal jurisdiction or where the court acts beyond “‘“the defined power of a court in any instance”’” whether that power is defined by constitution, statute or case law. (People v. Gonzalez, supra, 12 Cal.4th at p. 823.) An order that violates constitutional rights under the First Amendment is a void order, issued in excess of the court’s jurisdiction. (In re Berry, supra, 68 Cal.2d at p. 147.) An order enforcing a settlement that was not signed by the parties and thus not entered in compliance with Code of Civil Procedure section 664.6 is void. (Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 528-529.)
Here petitioners contend the injunction exceeded the scope of the terms of the stock purchase agreement. There is no dispute that the court had subject matter and personal jurisdiction; both Thompson and All-Cal were parties to the lawsuit before the court. The injunction is not beyond “the defined power of the court in any instance.” The dispute is whether the noncompete agreement, which permitted All-Cal to continue to perform its business, much of which required a crane, “except that the noncompete shall apply to operated and bare crane rental,” permitted All-Cal to rent a crane from a third party and pass the rental cost with markup on to the customer. The dispute is not over the court’s power to enforce the noncompete agreement, but the proper interpretation of that agreement. Like enforcing the invalid contract whose invalidity was not apparent on its face, the court’s grant of relief was not beyond the court’s authority to grant. (Signal Oil etc. Co. v. Ashland Oil etc Co., supra, 49 Cal.2d at p. 778.) At best, therefore, the injunction is erroneous, based on incorrect contract interpretation.
We need not and do not determine whether the court correctly interpreted the noncompete agreement.
Petitioners had to obey the injunction, even if erroneous, until it was set aside; a collateral attack is not permitted because it is not void. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group 2007) ¶ 9:722.3, p. 9(II)-48.7.) Petitioners had other avenues to challenge the scope of the preliminary injunction. The common remedies against an erroneous injunction are a motion to modify or dissolve the injunction or an appeal from the injunctive order or from denial of the motion to modify or dissolve. (6 Witkin, California Procedure (5th ed. 2008) Provisional Remedies, § 408, p. 348.)
Since the injunction was not void, the court did not err in issuing a contempt order for violation of the injunction.
II.
Substantial Evidence Supports the Findings of Contempt
Petitioners contend the contempt order must be annulled because it lacks any factual findings on which the contempt is based. Petitioners contend the contempt order contains only conclusory statements unsupported by the evidence. They contend that neither the contempt order nor the transcript of the hearing shows factual findings as to a valid injunctive order, petitioners’ ability to comply with the order or their willful refusal to comply with the order. They assert the contempt order is thus void on its face.
In their reply brief, petitioners expand upon this contention. They explain that simply specifying the 10 violations by date and the other party, W.C. Maloney or Titan, involved is insufficient because the court never determined what constituted a crane rental in violation of the injunction. Petitioners contend it is unclear whether these rentals by W.C. Maloney and Titan were prohibited acts because these companies were alter egos of All-Cal or that All-Cal’s sale of cranes to them were shams or because All-Cal used these companies as subcontractors to provide cranes and passed the cost of the crane rental along, with a markup, to All-Cal’s customers.
“‘Direct’ contempt is that committed in the immediate view and presence of the court or of the judge in chambers; all other contempts, such as this one, which occur outside the presence of the court, are ‘indirect.’ [Citation.]” (Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 611, disapproved on another point in Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1248, fn. 13.) “In a case of direct contempt, the court must make an order reciting the facts constituting the contempt. [Citations.] However, in a case of indirect contempt, the court need not state evidentiary facts supporting an ultimate finding of wilful violation of an order. Such a finding will be upheld in a case of indirect contempt if it is supported by substantial evidence. [Citations.]” (Reliable Enterprises, supra, at p. 614.)
We share petitioners’ frustration with the absence of findings to indicate exactly what the court found to be contempt. “[W]hile an indirect contempt judgment need not recite the court’s factual findings as a jurisdictional prerequisite, those findings should be specifically recited orally or in the judgment to assist a reviewing court in determining if the evidence is sufficient to support the judgment of contempt.” (Moss v. Superior Court (1998) 17 Cal.4th 396, 404.)
“As a general rule, the elements of contempt include (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order. [Citations.]” (In re Ivey (2000) 85 Cal.App.4th 793, 798.)
The power to weigh evidence rests entirely with the trial court and our responsibility is limited to reviewing whether substantial evidence supports the jurisdiction of the court. (In re Coleman (1974) 12 Cal.3d 568, 572.) We find substantial evidence supports the order of contempt.
Substantial evidence supports the first two elements of contempt. As discussed above, the injunction was a valid order, perhaps erroneous but not void. Petitioners had knowledge of the injunction and its modification because they were served with both.
Petitioners contend there was no evidence establishing their ability to comply with the injunction. The moving party must prove beyond a reasonable doubt that the person subject to the order has the ability to comply with it. (In re Cassil (1995) 37 Cal.App.4th 1081, 1087.) Here the injunction was strictly prohibitory; it prohibited engaging in the direct or indirect rental of cranes. Since the injunction did not require petitioners to do anything, but only refrain from doing something, their ability to comply was obvious.
We turn now to whether substantial evidence supports the court’s finding of 10 willful violations of the injunction. The 10 violations fall into two categories. First, the contempt order finds violations by Thompson and All-Cal through W.C. Maloney by providing a crane rental to Delta Pump on four occasions between May 1 and June 18, 2007. There was evidence that All-Cal rented the cranes to W.C. Maloney that in turn were rented to Delta Pump, thus All-Cal was indirectly renting cranes in violation of the injunction. In fact, Thompson identified exhibits 5-8 as invoices of crane rentals from W.C. Maloney to Delta Pump. He agreed the cranes in question were All-Cal’s cranes, W.C. Maloney paid All-Cal based on the utilization of the cranes and he knew W.C. Maloney was renting the cranes. Thompson claimed these cranes were sold to W.C. Maloney on a rental purchase option. He admitted the sales did not go through and All-Cal sold the cranes to a third party. And, Maloney testified W.C. Maloney rented four or five cranes from All-Cal. They never talked about finalizing a purchase and never agreed on a purchase price. He believed All-Cal had the right to sell those cranes to another company at the time W.C. Maloney was renting them. Maloney further testified Thompson told him that while he (Thompson) could not rent cranes, the noncompete agreement could not stop Maloney from renting cranes. This evidence is sufficient to show that Thompson and All-Cal willfully violated the injunction by engaging in the crane rental business through W.C. Maloney.
Maxim’s evidence that certain transactions in 2006 were documented by both a rental agreement and an equipment lease and security agreement with an option to purchase, suggesting the latter agreement was a sham and the transactions were true rentals, does not aid much in establishing the transactions in 2007 were rentals.
The second category of violations is rentals by Titan. On six occasions between September 7 and December 17, 2007, Titan rented a crane to All-Cal, which used the crane on a job it was performing. Thompson identified each invoice and testified All-Cal rented the cranes for its work at BNSF and other customers. He arranged the crane rental and passed the cost, with a markup, on to All-Cal’s customer. This evidence is sufficient to show Thompson and All-Cal willfully violated the injunction by re-renting cranes.
Further, there was evidence that All-Cal owned the cranes Titan was renting and arranged Titan’s rentals, which meant All-Cal and Thompson were affiliated with Titan. The noncompete clause of the stock purchase agreement prohibited Thompson from being affiliated with a company that engaged in the business of crane rental. Thompson testified he sold the cranes to a broker, James Michels, who in turn sold them to Cottingham, a half owner of Titan. There was evidence that the title to the 75-ton crane remained in All-Cal’s name until November 27, 2007, and that Titan used the crane for rentals before funding or financing was in place.
There is substantial evidence in support of the 10 violations of the injunction as set forth in the contempt order.
III.
The Trial Court Abused Its Discretion in Awarding Attorney Fees
Petitioners contend the court abused its discretion in awarding Maxim attorney fees without requiring Maxim to submit a motion for fees, calculating the lodestar amount or otherwise determining reasonableness, or affording petitioners an opportunity to contest the amount of fees. We agree.
Maxim inserted a figure for attorney fees and costs of $67,392.84 in the proposed contempt order it prepared for the court. The amount of attorney fees and costs was supported by a declaration of counsel that set forth only the amount of fees and expenses Maxim had incurred. This declaration was submitted to the court and served on petitioners the same day the court signed the contempt order. Thus, petitioners had no opportunity to challenge the amount of fees and costs. Further, the declaration provided no details to permit the court to assess the reasonableness of the fees and costs. There was no breakdown of the hours spent on the matter, the hourly rate of the attorneys, or even the identity of the attorneys for whom fees were sought. This summary procedure is unacceptable.
Code of Civil Procedure section 1218, subdivision (a) provides a person who is adjudged guilty of contempt for violating a court order may be ordered to pay the other party’s “reasonable attorney’s fees and costs” incurred in connection with the contempt proceeding. Thus, to order the payment of attorney fees and costs, the court must first determine their reasonableness.
“In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the ‘lodestar’ amount. [Citations.] The ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ [Citation.] To determine the reasonable hourly rate, the court looks to the ‘hourly rate... prevailing in the community for similar work.’ [Citation.] Using the lodestar as the basis for the attorney fees award ‘anchors the trial court’s analysis to an objective determination of the value of an attorney’s services, ensuring that the amount awarded is not arbitrary. [Citation.]’ [Citation.]” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)
Due process requires notice of and an opportunity to contest the opposing party’s request for attorney fees. (See Estate of Moran (1986) 183 Cal.App.3d 707, 714.) Petitioners were denied that opportunity. While Maxim’s application for an order to show cause re contempt gave petitioners notice that Maxim sought attorney fees, petitioners had no notice of or opportunity to contest the amount before the court signed the contempt order.
DISPOSITION
The order of contempt is affirmed. The award of attorney fees and costs is reversed and the matter remanded for further proceedings consistent with the views expressed in this opinion. The writ is discharged and the stay is lifted. The parties shall bear their own costs of this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
We concur: HULL, Acting P.J., BUTZ, J.