Unpublished Disposition, 842 F.2d 336 (9th Cir. 1988)

No. 87-3854.

United States Court of Appeals, Ninth Circuit.

Before TANG and CANBY, Circuit Judges and CURTIS^** , District Judge.

MEMORANDUM^* 

This is a diversity action. Plaintiff Whitney Brothers ("Whitney") appeals from an entry of summary judgment in favor of National Grape Co-operative Association ("National").

In the district court, plaintiff challenged his expulsion from membership in an agricultural cooperative. Whitney was found to have violated the association's bylaws which provide that "the member shall not have delivered grapes to the Association from acreage which is not contracted to the Association." Plaintiff makes a number of evidentiary and due process challenges to the hearing.

Whitney's claim that he failed to receive proper notice is without merit. The two basic due process elements of the right to notice were satisfied: (1) the rights to notice of procedural rights, such as adequate advance notice of the rights to a hearing; and (2) adequate notice of the hearing itself and the specific issues involved. Schwartz, Administrative Law, Sec. 6.4, at 280-81 (1984). Notice by letter was given informing Whitney of the specific section of the bylaws that he was alleged to have violated. The letter, mailed three weeks in advance of the hearing, contained the date and location of the alleged incident. Whitney's contention that the notice was deficient because it referred to a "delivery" when delivery had been rejected is frivolous. The hearing date and location were provided. Whitney was informed that he had a "right to be present, to be heard, to be represented by legal counsel, to present facts and to cross-examine opposing witnesses."

Whitney availed himself of these rights and appeared with counsel. He presented his side of the story and cross-examined National's witness. Whitney was thus afforded the right to be heard.

Whitney's remaining challenges are all evidentiary. The trial court addressed the question whether there was substantial evidence to support the hearing board's determination. Specifically, it found that "the disparity between the end tallies and the bin count, ... is crystal-clear. [Whitney] was using one set of numbers to count the grapes to be delivered ... and he was using another set of numbers to pay his help ... that's vital to a determination of a commodity that's being delivered in violation of cooperative laws."

Whitney's challenge to the testimony of National's witness, Lloyd Porter, is equally without merit. Porter testified that he personally saw the grapes harvested from non-contract acreage and that a Whitney truck driver told him the grapes were not from contract acreage. Cross-examination was afforded to Whitney. The hearing examiners could certainly have weighed Porter's credibility in National's favor. Porter's testimony was backed up by the fact that the end-post tallies from the contract acreage and the delivery differed drastically.

Substantial evidence therefore existed from which a reasonable trier could draw the conclusion that Whitney was delivering non-contract grapes. The district court properly ruled that Whitney had not raised any issue of fact over whether such substantial evidence existed in the record. Due process rights were observed as Whitney was given notice, informed of his rights and was presented with an opportunity to defend himself and cross-examine the adverse witness. Summary judgment was accordingly proper.

The judgment of the district court is affirmed. We conclude that this appeal is frivolous within the meaning of Fed. R. App. P. 38. Appellee is entitled to reasonable attorneys' fees, in addition to its normal costs.

AFFIRMED.