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Attorney Mark Bresee
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Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
The order of the trial court is reversed with respect to the award of sanctions,
and the matter is remanded for further proceedings related to that issue.
IN RE: the MARRIAGE OF Joseph and Maryanne K. SORGE.
Joseph A. Sorge, Appellant, v. Maryanne K. Sorge, Respondent.
Court of Appeal, Fourth District, Division 1, California
.Nos. D057677, 58611.
-- January 05, 2012
Garrett Clark Dailey for Appellant. Procopio, Cory, Hargreaves & Savitch,
Lionel P. Hernholm, Jr., David M. Zachry; Stephen Temko for Respondent.
I.INTRODUCTION
Joseph A. Sorge appeals after the trial court modified the child support awarded to his ex-wife,
Maryanne K. Sorge, and awarded Maryanne1 sanctions and attorney fees, both related to the
costs of the underlying litigation, as well as pendente lite attorney fees for defending against
Joseph's appeal.
On appeal, Joseph first contends that the trial court erred in calculating the child support amount.
According to Joseph, the trial court ignored his bona fide business expenses in calculating his
monthly income, in contravention of Family Code 2 section 4058, subdivision (a)(2).
Joseph also contends that the trial court erred in concluding that for purposes of section 2102,
subdivision (c), the parties' duty to disclose to each other, sua sponte, all material changes in
their financial status continues from the date of separation until the trial court no longer has
jurisdiction to order child support. Joseph argues that the court erred in determining that the
cessation of a child support obligation is the event that constitutes a “valid, enforceable, and
binding resolution of all issues relating to child ․ support” under section 2102, subdivision (c).
According to Joseph, because the trial court's award of sanctions to Maryanne was based in part
on the court's erroneous interpretation of section 2102, subdivision (c), the sanctions order must
be reversed.
Finally, Joseph contends that the trial court abused its discretion in awarding Maryanne attorney
fees in the amount of $200,000 for proceedings in the trial court, and $60,000 in pendente lite
attorney fees for proceedings on appeal3 because Maryanne has no need for these fees, since
she has a net worth of over $14 million, more than half of which is in liquid assets.
We conclude that the trial court erred in sanctioning Joseph on the ground
that he breached his fiduciary duty under section 2102, subdivision (c) to disclose to
Maryanne all material changes in his income. Specifically, we conclude that any
fiduciary duty that Joseph had to disclose material changes in his income to
Maryanne ended upon entry of their 2002 divorce decree. We reject all of Joseph's
other contentions.
The trial court's sanction order must be reversed and the matter remanded for
the trial court to reconsider that issue. In all other respects, we affirm the trial court's
orders.
II.FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Maryanne and Joseph were married in 1983, and separated in September 2000. The parties had
three children. Maryanne filed a petition for divorce in Wyoming in November 2000.
The court observed that the difference in Joseph's monthly income when calculated using these
two methods was “dramatic.” Excluding the losses from the start-up companies, Joseph's
monthly income in 2008 was $229,100; if those losses were included, Joseph's monthly income
that year would be negative $235,600. The court concluded that although Joseph was not
deferring the receipt of a salary, like the husband in Berger, Joseph was “ask[ing] this court to
shield a portion of his income from support.”
The court noted that Joseph maintained “an affluent, even wealthy lifestyle despite those
business losses,” and went on to describe the multiple homes that Joseph owns, a multimillion
dollar house that Joseph purchased in Las Vegas in 2007, and a $1.8 million ranch that Joseph
purchased in San Marcos in 2009. The court further noted that Joseph continued to use private
jets for international travel. The court observed, “Joseph's losses have not hampered his lifestyle.”
With respect to Joseph's income, the court ultimately concluded:
“Joseph may not voluntarily prefer his businesses to his child's right to receive current support in
accordance with Joseph's abilities. Joseph may not invest in businesses and thereby minimize
his support obligation while he maintains a wealthy lifestyle. Joseph may not divest himself, in
whole or in part, of his earning ability at the expense of his minor child. Joseph may not take a
break from his child support obligation in favor of his business investments. Marriage of Berger,
supra, at 1082 and 1083. In short, as the court in Berger determined, Joseph ‘cannot unilaterally,
and voluntarily, arrange his business affairs in such a way as to effectively preclude his children
from sharing in the benefits of his current standard of living.’ Marriage of Berger, supra, at 1082.
“This court is mindful of the mandate of [section] 4058[, subdivision] (a)(2) to deduct business
expenses in the calculation of gross income. Joseph strongly makes this argument. However,
that statute, which far predates Berger, does not compel the court to deduct losses from business
investments to enable a parent to prefer his business investments to his support responsibility for
a season while that parent maintains a wealthy lifestyle. To do so would enable Joseph or any
parent to voluntarily divert income otherwise available for support to various start-up businesses,
live extravagantly off sizeable assets, and plead poverty at the support hearing. See Marriage of
Berger, supra, at 1073. To apply that statute in this manner would create the impermissible irony
Berger described of enabling Joseph, ‘who does not need a job to support himself in the short
term—as a less wealthy man would—to spin that into the justification for granting him a break
from the obligation to support his family.’ Marriage of Berger, supra, at 1086.
“Therefore, the court declines Joseph's request to deduct from his income any of the business
losses.”
b. Provisions regarding sanctions
Section 2107, subdivision (c) requires the trial court to impose monetary sanctions
and to award reasonable attorney fees if a party fails to comply with any portion of
the chapter of the Family Code that deals with a spouse's fiduciary duty of
disclosure during dissolution proceedings. That provision provides, “If a party fails to
comply with any provision of this chapter, the court shall, in addition to any other
remedy provided by law, impose money sanctions against the noncomplying party.
Sanctions shall be in an amount sufficient to deter repetition of the conduct or
comparable conduct, and shall include reasonable attorney's fees, costs incurred, or
both, unless the court finds that the noncomplying party acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.”
(§ 2107, subd. (c).)
Similarly, section 271, subdivision (a) provides the trial court with authority
to order the opposing party to pay attorney fees and costs in the nature of a
sanction when “the conduct of each party or attorney ․ frustrates the policy
of the law to promote settlement of litigation․” That subdivision further
provides: “Notwithstanding any other provision of this code, the court may base an
award of attorney's fees and costs on the extent to which the conduct of each party
or attorney furthers or frustrates the policy of the law to promote settlement of
litigation and, where possible, to reduce the cost of litigation by encouraging
cooperation between the parties and attorneys. An award of attorney's fees and
costs pursuant to this section is in the nature of a sanction. In making an award
pursuant to this section, the court shall take into consideration all evidence
concerning the parties' incomes, assets, and liabilities. The court shall not impose
a sanction pursuant to this section that imposes an unreasonable financial
burden on the party against whom the sanction is imposed. In order to obtain
an award under this section, the party requesting an award of attorney's fees and
costs is not required to demonstrate any financial need for the award.” (Ibid .)
Section 271 “advances the policy of the law ‘to promote settlement and to
encourage cooperation which will reduce the cost of litigation.’ [Citation.]” (In
re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.)
Together, sections 271 and 2107 “give the trial court authority to order
sanctions and the payment of attorney fees for breach of a party's fiduciary
duty of disclosure and for conduct which frustrates the policy of promoting
settlement.” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1474
(Feldman ).)
c. Standards of review
“ ‘A sanction order under ․ section 271 is reviewed under the abuse of
discretion standard. “ ‘[T]he trial court's order will be overturned only
if, considering all the evidence viewed most favorably in support of
its order, no judge could reasonably make the order.’ “ ‘ [Citation.] ‘In
reviewing such an award, we must indulge all reasonable inferences
to uphold the court's order.’ [Citation.] Although no case law
discusses which standard of review we should apply to an order
awarding sanctions under section 2107, subdivision (c), because the
sanction is similar to that imposed under section 271 as well as
similar to a sanction for civil discovery abuses (which are reviewed
for abuse of discretion), we will apply an abuse of discretion standard
to an order for sanctions under section 2107, subdivision (c).
[Citation.]” (Feldman, supra, 153 Cal.App.4th at p. 1478, fn. omitted.)
“To the extent that we are called upon to interpret the statutes relied
on by the trial court to impose sanctions, we apply a de novo
standard of review.” (Feldman, supra, 153 Cal.App.4th at p. 1479.)
“We review any findings of fact that formed the basis for the award of
sanctions under a substantial evidence standard of review.
[Citation.]” (Ibid.)
3. Analysis
a. The trial court erred in determining that Joseph owed Maryanne a continuing fiduciary duty
under section 2012, subdivision (c)
Joseph contends that the trial court erred in interpreting section 2012, subdivision (c) as requiring
a continuing duty between divorced parents to make “immediate, full, and accurate disclosure of
all material facts and information regarding the income or expenses of the party,” beyond the entry
of a final judgment in a dissolution action, as long as there is a child for whom a support order
remains in effect.
On appeal, we review an attorney fee award under section 2030 for an abuse of discretion. (In re
Marriage of Drake, supra, 53 Cal .App.4th at p. 1166.)
3. Analysis
Joseph argues that Maryanne has no need for assistance in paying her attorney fees, and,
therefore, that the trial court abused its discretion when it awarded her $200,000 in attorney fees
related to the litigation between the parties in the trial court. As Joseph puts it, “[t]he question is a
narrow one—does a person worth $14 million, over half of which is liquid, who was already
receiving in excess of $16,000 per month in spousal and child support, and who was just
awarded $414,444 in retroactive child support for a child in her care 50% of the time, ‘need’
$200,000 in attorney fees?” Joseph goes on to say that the trial court found that Maryanne did not
“need” the fees, but made the order “because Joe had a greater net worth than Maryanne.”
and the matter is remanded for further proceedings related to that issue.
IN RE: the MARRIAGE OF Joseph and Maryanne K. SORGE.
Joseph A. Sorge, Appellant, v. Maryanne K. Sorge, Respondent.
Court of Appeal, Fourth District, Division 1, California
.Nos. D057677, 58611.
-- January 05, 2012
Garrett Clark Dailey for Appellant. Procopio, Cory, Hargreaves & Savitch,
Lionel P. Hernholm, Jr., David M. Zachry; Stephen Temko for Respondent.
I.INTRODUCTION
Joseph A. Sorge appeals after the trial court modified the child support awarded to his ex-wife,
Maryanne K. Sorge, and awarded Maryanne1 sanctions and attorney fees, both related to the
costs of the underlying litigation, as well as pendente lite attorney fees for defending against
Joseph's appeal.
On appeal, Joseph first contends that the trial court erred in calculating the child support amount.
According to Joseph, the trial court ignored his bona fide business expenses in calculating his
monthly income, in contravention of Family Code 2 section 4058, subdivision (a)(2).
Joseph also contends that the trial court erred in concluding that for purposes of section 2102,
subdivision (c), the parties' duty to disclose to each other, sua sponte, all material changes in
their financial status continues from the date of separation until the trial court no longer has
jurisdiction to order child support. Joseph argues that the court erred in determining that the
cessation of a child support obligation is the event that constitutes a “valid, enforceable, and
binding resolution of all issues relating to child ․ support” under section 2102, subdivision (c).
According to Joseph, because the trial court's award of sanctions to Maryanne was based in part
on the court's erroneous interpretation of section 2102, subdivision (c), the sanctions order must
be reversed.
Finally, Joseph contends that the trial court abused its discretion in awarding Maryanne attorney
fees in the amount of $200,000 for proceedings in the trial court, and $60,000 in pendente lite
attorney fees for proceedings on appeal3 because Maryanne has no need for these fees, since
she has a net worth of over $14 million, more than half of which is in liquid assets.
We conclude that the trial court erred in sanctioning Joseph on the ground
that he breached his fiduciary duty under section 2102, subdivision (c) to disclose to
Maryanne all material changes in his income. Specifically, we conclude that any
fiduciary duty that Joseph had to disclose material changes in his income to
Maryanne ended upon entry of their 2002 divorce decree. We reject all of Joseph's
other contentions.
The trial court's sanction order must be reversed and the matter remanded for
the trial court to reconsider that issue. In all other respects, we affirm the trial court's
orders.
II.FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Maryanne and Joseph were married in 1983, and separated in September 2000. The parties had
three children. Maryanne filed a petition for divorce in Wyoming in November 2000.
The court observed that the difference in Joseph's monthly income when calculated using these
two methods was “dramatic.” Excluding the losses from the start-up companies, Joseph's
monthly income in 2008 was $229,100; if those losses were included, Joseph's monthly income
that year would be negative $235,600. The court concluded that although Joseph was not
deferring the receipt of a salary, like the husband in Berger, Joseph was “ask[ing] this court to
shield a portion of his income from support.”
The court noted that Joseph maintained “an affluent, even wealthy lifestyle despite those
business losses,” and went on to describe the multiple homes that Joseph owns, a multimillion
dollar house that Joseph purchased in Las Vegas in 2007, and a $1.8 million ranch that Joseph
purchased in San Marcos in 2009. The court further noted that Joseph continued to use private
jets for international travel. The court observed, “Joseph's losses have not hampered his lifestyle.”
With respect to Joseph's income, the court ultimately concluded:
“Joseph may not voluntarily prefer his businesses to his child's right to receive current support in
accordance with Joseph's abilities. Joseph may not invest in businesses and thereby minimize
his support obligation while he maintains a wealthy lifestyle. Joseph may not divest himself, in
whole or in part, of his earning ability at the expense of his minor child. Joseph may not take a
break from his child support obligation in favor of his business investments. Marriage of Berger,
supra, at 1082 and 1083. In short, as the court in Berger determined, Joseph ‘cannot unilaterally,
and voluntarily, arrange his business affairs in such a way as to effectively preclude his children
from sharing in the benefits of his current standard of living.’ Marriage of Berger, supra, at 1082.
“This court is mindful of the mandate of [section] 4058[, subdivision] (a)(2) to deduct business
expenses in the calculation of gross income. Joseph strongly makes this argument. However,
that statute, which far predates Berger, does not compel the court to deduct losses from business
investments to enable a parent to prefer his business investments to his support responsibility for
a season while that parent maintains a wealthy lifestyle. To do so would enable Joseph or any
parent to voluntarily divert income otherwise available for support to various start-up businesses,
live extravagantly off sizeable assets, and plead poverty at the support hearing. See Marriage of
Berger, supra, at 1073. To apply that statute in this manner would create the impermissible irony
Berger described of enabling Joseph, ‘who does not need a job to support himself in the short
term—as a less wealthy man would—to spin that into the justification for granting him a break
from the obligation to support his family.’ Marriage of Berger, supra, at 1086.
“Therefore, the court declines Joseph's request to deduct from his income any of the business
losses.”
b. Provisions regarding sanctions
Section 2107, subdivision (c) requires the trial court to impose monetary sanctions
and to award reasonable attorney fees if a party fails to comply with any portion of
the chapter of the Family Code that deals with a spouse's fiduciary duty of
disclosure during dissolution proceedings. That provision provides, “If a party fails to
comply with any provision of this chapter, the court shall, in addition to any other
remedy provided by law, impose money sanctions against the noncomplying party.
Sanctions shall be in an amount sufficient to deter repetition of the conduct or
comparable conduct, and shall include reasonable attorney's fees, costs incurred, or
both, unless the court finds that the noncomplying party acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.”
(§ 2107, subd. (c).)
Similarly, section 271, subdivision (a) provides the trial court with authority
to order the opposing party to pay attorney fees and costs in the nature of a
sanction when “the conduct of each party or attorney ․ frustrates the policy
of the law to promote settlement of litigation․” That subdivision further
provides: “Notwithstanding any other provision of this code, the court may base an
award of attorney's fees and costs on the extent to which the conduct of each party
or attorney furthers or frustrates the policy of the law to promote settlement of
litigation and, where possible, to reduce the cost of litigation by encouraging
cooperation between the parties and attorneys. An award of attorney's fees and
costs pursuant to this section is in the nature of a sanction. In making an award
pursuant to this section, the court shall take into consideration all evidence
concerning the parties' incomes, assets, and liabilities. The court shall not impose
a sanction pursuant to this section that imposes an unreasonable financial
burden on the party against whom the sanction is imposed. In order to obtain
an award under this section, the party requesting an award of attorney's fees and
costs is not required to demonstrate any financial need for the award.” (Ibid .)
Section 271 “advances the policy of the law ‘to promote settlement and to
encourage cooperation which will reduce the cost of litigation.’ [Citation.]” (In
re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.)
Together, sections 271 and 2107 “give the trial court authority to order
sanctions and the payment of attorney fees for breach of a party's fiduciary
duty of disclosure and for conduct which frustrates the policy of promoting
settlement.” (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1474
(Feldman ).)
c. Standards of review
“ ‘A sanction order under ․ section 271 is reviewed under the abuse of
discretion standard. “ ‘[T]he trial court's order will be overturned only
if, considering all the evidence viewed most favorably in support of
its order, no judge could reasonably make the order.’ “ ‘ [Citation.] ‘In
reviewing such an award, we must indulge all reasonable inferences
to uphold the court's order.’ [Citation.] Although no case law
discusses which standard of review we should apply to an order
awarding sanctions under section 2107, subdivision (c), because the
sanction is similar to that imposed under section 271 as well as
similar to a sanction for civil discovery abuses (which are reviewed
for abuse of discretion), we will apply an abuse of discretion standard
to an order for sanctions under section 2107, subdivision (c).
[Citation.]” (Feldman, supra, 153 Cal.App.4th at p. 1478, fn. omitted.)
“To the extent that we are called upon to interpret the statutes relied
on by the trial court to impose sanctions, we apply a de novo
standard of review.” (Feldman, supra, 153 Cal.App.4th at p. 1479.)
“We review any findings of fact that formed the basis for the award of
sanctions under a substantial evidence standard of review.
[Citation.]” (Ibid.)
3. Analysis
a. The trial court erred in determining that Joseph owed Maryanne a continuing fiduciary duty
under section 2012, subdivision (c)
Joseph contends that the trial court erred in interpreting section 2012, subdivision (c) as requiring
a continuing duty between divorced parents to make “immediate, full, and accurate disclosure of
all material facts and information regarding the income or expenses of the party,” beyond the entry
of a final judgment in a dissolution action, as long as there is a child for whom a support order
remains in effect.
On appeal, we review an attorney fee award under section 2030 for an abuse of discretion. (In re
Marriage of Drake, supra, 53 Cal .App.4th at p. 1166.)
3. Analysis
Joseph argues that Maryanne has no need for assistance in paying her attorney fees, and,
therefore, that the trial court abused its discretion when it awarded her $200,000 in attorney fees
related to the litigation between the parties in the trial court. As Joseph puts it, “[t]he question is a
narrow one—does a person worth $14 million, over half of which is liquid, who was already
receiving in excess of $16,000 per month in spousal and child support, and who was just
awarded $414,444 in retroactive child support for a child in her care 50% of the time, ‘need’
$200,000 in attorney fees?” Joseph goes on to say that the trial court found that Maryanne did not
“need” the fees, but made the order “because Joe had a greater net worth than Maryanne.”
In re Liu
273 Cal. App. 2d 135
[Crim. No. 16186. Second Dist., Div. Five. May 20, 1969.]
In re DAVID K. LIU on Habeas Corpus.
COUNSEL
Warren M. Goodwin for Petitioner.
John D. Maharg, County Counsel, and Jean Louise Webster, Deputy County Counsel,
for Respondent. [273 Cal. App. 2d 137]
OPINION
ALARCON, J. pro tem. fn. *
The petitioner, David K. Liu, has filed an application for a writ of habeas corpus
to free him from the threat of further incarceration under an order of the
Superior Court for Los Angeles County which found him in contempt and
ordered his imprisonment until he has complied with certain court orders.
After reviewing the petition, this court issued an order to show cause on January
29, 1969, to be heard on February 20, 1969. The petitioner was ordered
released on the posting of bail in the amount of $5,000.
Facts
Catherine Liu filed an action for separate maintenance on April 1, 1968 against
the petitioner in this matter. The complaint prays for custody of the two children of the
parties. It is also alleged in the complaint that "defendant and his father by
threat and by force wrongfully has taken or remove [sic] Sue Mann Chiji Liu
from her custody, and she is a child of tender year [sic] and now living with
defendant and his father at 1344 Kellam Street, Los Angeles, California." An order to
show cause was issued on the same date (April 1, 1968) requiring inter alia that David
K. Liu show cause on April 15, 1968 fn. 1 why custody of the two children should not
be awarded to Catherine Liu during the pendency of the action.
On the same date and incorporated in the same document as the order to show cause
the court issued a temporary restraining order which provided in pertinent part:
"Pending ... the hearing on this order ... you are enjoined and restrained from:
1. Molesting, harassing, annoying or disturbing plaintiff in any manner whatsoever.
2. Removing daughter from the Southern California area.
3. (defendant or his father) removing the physical custody of her son James Chwan
Lhyang Liu, who is residing with plaintiff, from the So. Calif. area." fn. 2
The order to show cause and the temporary restraining order were served on the
petitioner, David K. Liu, on April 1, 1968. The affidavit of service contained in the
court's record [273 Cal. App. 2d 138] does not indicate the time that personal service
was made on the petitioner.
On April 22, 1968, custody of each of the children was awarded to Catherine
C. Liu. The petitioner was awarded the right of reasonable visitation. He was
restrained from removing the child James from the County of Los Angeles "without first
obtaining a prior order of court or the written consent of plaintiff."
The petitioner was also ordered to return Sue to the mother's custody in Los
Angeles at his expense no later than June 18, 1968.
Testimony was taken at the hearing of April 22, 1968, from Catherine C. Liu and
David K. Liu, however, no reporter was present.
The court made no finding that the petitioner had the present ability to return
Sue to her mother. The minute order of April 22, 1968, does not indicate
whether the evidence heard by the court supported the conclusion that the
petitioner had custody of Sue as of April 22, 1968, or that he had had her in
his custody since April 1, 1968. The minute order for that date is also silent as
to whether the petitioner removed Sue from the southern California area
after service was made of the April 1, 1968, temporary restraining order.
The record shows that on June 18, 1968, the petitioner appeared and
testified. The matter was continued to August 19, 1968. Again the
proceedings were not reported. The minute order for June 18, 1968, reflects that
the matter was continued to August 19, 1968, "at which time" the defendant was
ordered to produce Sue "to the jurisdiction of this court and to the custody of plaintiff."
The minute order is silent as to whether the petitioner complied with the order of April
22, 1968, by producing Sue in court no later than June 18, 1968.
The minute order for August 19, 1968, indicates that the matter was placed off
calendar at the request of plaintiff's counsel.
Again the record is silent as to whether the petitioner returned Sue to the
jurisdiction of the court on August 19, 1968, or to her mother as required by
the order of June 18, 1968.
On December 27, 1968, the superior court issued an order to the petitioner
requiring that he show cause why he should not be found guilty of contempt
of court for wilfully disobeying the orders made on April 1, 1968, April 22, 1968,
and June 18, 1968, based on the declaration filed by Catherine Liu.
The declaration was incorporated in a form required to be used "exclusively upon all
applications for Order to Show [273 Cal. App. 2d 139] Cause in Re Contempt in
domestic relations cases."
The declaration alleges:
"That defendant was enjoined from removing daughter Sue Mann Chiji Liu from
Southern California area and did so remove her on April 1, 1968.
That defendant was restrained from removing son James Chwan Sh Yang from
custody of plaintiff and defendant did [sic] so remove him on November 7,
1968.
That defendant was ordered to return daughter Sue Mann Chiji Liu to custody of
plaintiff and defendant has failed and refused to do so and has in fact removed him
[sic] from Southern California area. The Defendant had the ability to comply with
each of the aforementioned orders but has wilfully failed or refused to do
so." The declaration also alleges that the order was audibly pronounced in
the presence of the petitioner. fn. 3
On January 27, 1969, the petitioner was adjudged in contempt of court and
ordered sentenced to the county jail to remain there until such time as he
purged himself of contempt by "complying with said orders." The court found
that the defendant violated the orders of April 1, 1968, April 22, 1968, and June 18,
1968, and that such violation "is a continuing contempt." The court expressly found
that "the defendant has the ability to compy with said orders and further that the
defendant continues to have the ability to comply with said orders." The contempt
proceedings were not reported.
Discussion
A trial court when faced with a wilful refusal to obey a court order can take action to
punish such disobedience under section 1218 of the Code of Civil
Procedure. Section 1218 provides: "Upon the answer and evidence taken, the
court or judge must determine whether the person proceeded against is guilty of the
contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may
be imposed on him not exceeding five hundred dollars ($500), or he
may be imprisoned not exceeding five days, or both; provided, however,
that in justice courts the judge may punish by fine or imprisonment or both,
such fine not to exceed, in any case, one hundred dollars ($100), and such
imprisonment one day; the conviction, specifying
particularly the offense, and the judgment [273 Cal. App. 2d
140] thereon, must be entered in the docket. No party, who is in contempt of a court
order or judgment in a divorce or separate maintenance action, shall be permitted to
enforce such order or judgment, by way of execution or otherwise, either in the same
action or by way of a separate action, against the other party. This restriction shall not
affect nor apply to the enforcement of child support orders." Under certain
circumstances the court has the power to compel obedience to its orders by
imprisoning the contemner until he has complied. Section 1219 of the Code
of Civil Procedure provides: "If the contempt is omission to perform any act,
the person may be imprisoned until performance. When the contempt
consists in the omission to perform an act which is yet in the power of the
person to perform, he may be imprisoned until he have performed it, and in
that case the act must be specified in the warrant of commitment."
Here the trial court attempted to compel performance of the orders of April 1, 1968,
April 22, 1968, and June 18, 1968, under section 1219 by imprisoning the petitioner
indefinitely until he complies with these orders.
Sufficiency of the Declaration
[1] A proceeding for an adjudication for constructive contempt is initiated by the filing
of an affidavit or declaration. Such affidavit or declaration must set forth the facts
constituting the alleged contempt in order to confer jurisdiction upon the court to
exercise its contempt powers (Warner v. Superior Court, 126 Cal. App. 2d 821, 824
[273 P.2d 89]). The accused is entitled to notice of the particular accusation against
him (In re Felthoven, 75 Cal. App. 2d 465, 468-469 [171 P.2d 47]).
[2] The facts essential to jurisdiction for a contempt proceeding are
"(1) the making of the order;
(2) knowledge of the order;
(3) ability of the respondent to render compliance, fn. 4
(4) wilful disobedience of the order." (Warner v. [273 Cal. App. 2d 141] Superior
Court, 126 Cal. App. 2d 821, 824 [273 P.2d 89]; see also In re Ny, 201 Cal. App. 2d
728, 731 [20 Cal.Rptr. 114].)
On the face of the declaration in this matter sufficient facts were set forth to give the
court jurisdiction to punish the petitioner for contempt by imposition of a fine or a
definite jail term under section 1218 of the Code of Civil Procedure. The declaration
alleges that the petitioner wilfully disobeyed certain court orders pronounced in his
presence although he had the ability to perform the acts required of him.
The petitioner was given notice of the fact that he faced punishment for contempt
under section 1218.
Unfortunately, the trial judge chose not to punish the petitioner for his past
violations of specific court orders, but to imprison him to enforce future
compliance with these orders.
However, section 1219 can only be invoked to compel obedience to a court order
where the desired act is "yet in the power of the person to perform." The declaration
does not allege that the petitioner has the present ability to comply with the
court's orders. Thus, the petitioner had no knowledge that he faced
indefinite imprisonment under section 1219 until he heard the judge order
the sheriff to keep him in the county jail indefinitely.
[3] A contempt proceeding is quasi-criminal in nature
(Hotaling v. Superior Court, 191 Cal. 501, 504 [217 P. 73, 29 A.L.R. 127]; Phillips v.
Superior Court, 22 Cal. 2d 256, 257 [137 P.2d 838]; Freeman v. Superior Court, 44
Cal. 2d 533, 538 [282 P.2d 857]).
The accused person is entitled to the procedural safeguards available to a
person accused of a criminal charge (City of Culver City v. Superior Court, 38 Cal.
2d 535, 541 [241 P.2d 258]; Ransom v. Superior Court, 262 Cal. App. 2d 271 [68
Cal.Rptr. 507]) including due process. (In re Shelley, 197 Cal. App. 2d
199, 202 [16 Cal.Rptr. 916].) [4] Due process includes the right to
know the exact nature of the charge against the
accused so that he can prepare and present his
defense. Otherwise he will be taken by surprise by the
evidence offered at his trial (In re Hess, 45 Cal. 2d
171, 175 [288 P.2d 5]).
In this matter the petitioner was placed on notice that he was accused of violating the
court's orders at a time when he had the ability to comply.
He had no notice that he was facing an accusation that having the present
ability to comply he was still wilfully refusing to perform the acts required of
him. [5] The party seeking to have a person held in contempt has the burden of
proving his ability to comply beyond [273 Cal. App. 2d 142] a reasonable
doubt. (Bridges v. Superior Court, 14 Cal. 2d 464, 465 [94 P. 2d 983], revd. on other
grounds by U.S. Sup. Ct., 314 U.S. 252 [86 L.Ed. 192, 62 S.Ct. 190, 159 A.L.R. 1346];
Oil Workers Intl. Union v. Superior Court, 103 Cal. App. 2d 512, 517 [230 P.2d 71].) If
the petitioner had been given notice by the declaration that his present ability to
comply was in issue he would have had an opportunity in preparing his defense to rely
on the weakness of the case against him or to present evidence in order to attempt to
raise a reasonable doubt of his present ability to comply. He went to court warned
that he faced statutorily circumscribed punishment for past disobedience of
the court's orders only to find himself confined indefinitely unless he
performed certain acts in the future. [6]
Because of the fact that under section 1219 an
alleged contemner faces drastic punishment and
the possibility of life imprisonment for his failure
to obey a court order contempt proceedings must
be strictly construed and any uncertainties or
ambiguities must be resolved in favor of the
accused (see Butler v. Superior Court, 178 Cal. App. 2d 763, 765 [3 Cal.Rptr.
180].) We hold that a trial court acts in excess of its jurisdiction in ordering an alleged
contemner to be imprisoned until he complies with the court's orders where the
declaration which initiated the contempt proceedings alleges that the contemner had
the ability to comply but fails to allege facts showing a present ability to comply
with the court's order.
The Contempt Order
[7a] In reviewing the contempt order of January 27, 1969 to determine if the trial court
had sufficient evidence before it to support the contempt finding, we must look to the
declaration of the party seeking the contempt order and the court's records since the
contempt proceedings were conducted in the absence of a court reporter.
In the contempt order of January 27, 1969, the trial court found that the petitioner "in
violation of the restraining order of April 22, 1968 the petitioner removed the minor
child James from the custody of the plaintiff and the jurisdiction of the court, on or
about November 7, 1968."
The order of April 22, 1968, restrained the petitioner from removing James from Los
Angeles County "without first obtaining a prior court order or the written consent of
plaintiff." The declaration does not set forth any facts which would support a finding
that prior court approval was not obtained and that the plaintiff did not consent in
writing to [273 Cal. App. 2d 143] the removal of James from Los Angeles County.
Thus, the mere removal of James from Los Angeles County does not constitute a
violation of the order of April 22, 1968, unless it was done without prior court approval
or written consent of the child's mother. Therefore, the declaration does not set forth
facts showing a violation of the order of April 22, 1968, since it fails to allege facts
showing a lack of court approval or written consent. The burden of proving lack of
written consent or court approval was on the party seeking the contempt order.
The contempt order states the petitioner has the present ability to comply with the
court's order of April 22, 1968, against the removal of James from Los Angeles County.
However, the court also found that James was removed by the petitioner from the
custody of the plaintiff and the jurisdiction of the court on or about November 7, 1968.
If we combine these two findings we are thus faced with a determination by the court
that the petitioner has the present ability to comply with an order not to remove James
from Los Angeles County despite the fact that he has already removed James from
Los Angeles County.
By its contempt order, the court has demanded that the petitioner remain in jail until
he purges himself of his contempt of the order not to remove James from his mother's
custody. The court did not order the petitioner to be punished for his
contempt under section 1218. fn. 5
The trial court did not make any order subsequent to April 22, 1968, requiring the
petitioner to return James to his mother or to the jurisdiction of the court. Once the
petitioner removed the child from the custody of his mother the prohibited act was an
accomplished historical fact. There is no way in which the petitioner can now
not remove the child on November 7, 1968. It is now impossible for him to
comply with the order against removal. There is nothing the petitioner can now do
to purge himself of his contempt of the April 22, 1968 order.
A bell cannot be unrung although a court orders that it be done. Before
section 1219 can be invoked to compel compliance with a valid court order, the
contemner must have it within his power to perform the act. To continue to imprison
the petitioner for a violation of the April 22, 1968, order [273 Cal. App. 2d 144] insofar
as it relates to the child James would require him to spend the rest of his life in jail,
since he can never comply with the order. The following language from an early
California case aptly points out the dilemma created by the court's contempt order of
imprisonment for the removal of James. "The law does not require a vain act to be
done. The prisoner may still be liable to fine and imprisonment for disobeying the
original order, but he cannot be further restrained of his liberty, under the present
warrant, as it is shown that it is now impossible to comply with the order, and his
imprisonment would of necessity be perpetual." (Ex parte Rowe, 7 Cal. 176, 177.)
It is apparent from a review of this record that the trial court ordered the petitioner
imprisoned in order to compel him to return James and Sue to their mother. However,
the contempt order and the declaration refer only to the court's orders of April 1,
1968, April 22, 1968, and June 18, 1968. None of these orders require the return of
James.
[8] A trial court has no jurisdiction to order the imprisonment of an alleged contemner
until he performs an act which is in his power to perform unless the act was required to
be performed by the terms of the original order which he is charged with violating.
(Dewey v. Superior Court, 81 Cal. 64, 67 [22 P. 333]; Hotaling v. Superior Court, 191
Cal. 501, 508 [217 P. 73, 29 A.L.R. 127].) In the Dewey case, the trial court issued a
judgment enjoining the defendant from maintaining a certain dam or other
obstructions in Mariposa Creek and from maintaining a ditch or canal in any condition
which would interfere with the rights of the plaintiff. Some time thereafter contempt
proceedings were instituted by the plaintiff. The defendant was adjudged guilty of
contempt, fined $150, and was ordered confined in the county jail until all dams and
obstructions which would obstruct the flow of the water were removed and until the
ditch was filled up to stop any diversion of the creek's water. The trial court found that
it was within the power of the contemner to remove the dam and fill up the mouth of
the ditch. The Supreme Court vacated the order insofar as it compelled the indefinite
confinement of the contemner on the grounds that "the original order did not require
him to perform the act which is by this order enjoined upon him, and for the
non-performance of which it is now ordered that he be imprisoned." (Dewey v.
Superior Court, 81 Cal. 64, 67 [22 P. 333].) Thus, in Dewey the California Supreme
Court ruled that a trial court has no jurisdiction to [273 Cal. App. 2d 145] imprison a
defendant for contempt until he removes a dam and a ditch where the original order of
the court restrained him from maintaining the dam and the ditch unless the court had
also issued a second order requiring him to remove the dam and the ditch.
[7b] The contempt order stated that the petitioner had the present ability to perform
the acts required of him by the orders of April 1, 1968, April 22, 1968, and June 18,
1968. However, since none of these orders required him to return James there is no
finding of a present ability to return James.
In the order to compel the return of James, the trial judge should have issued a new
order requiring that the petitioner return James to his mother. If the petitioner then
wilfully disobeyed this new order with the present ability to perform the act of returning
James, the trial court would then have the jurisdiction to invoke section 1219 to
imprison the petitioner until he complies.
The trial court found that the petitioner violated the temporary restraining order of
April 1, 1968. However, the order of April 1, 1968, can no longer be invoked to form
the basis of a contempt order since it was superseded by the minute order of April 22,
1968, as to the minor child James since both orders dealt with the same subject
matter. (The order of April 22, 1968, is also functus officio insofar as it concerns the
child Sue since the June 18, 1968, order concerns the same subject matter.) (See
Levy v. Levy, 245 Cal. App. 2d 341, 349-350 [53 Cal.Rptr. 790].)
The declaration states that the petitioner removed Sue from the southern California
area on April 1, 1968, in violation of the temporary restraining order of April 1, 1968.
The declaration does not set forth any facts which indicate that the petitioner had
notice of the temporary restraining order which was served on him on the same date
he is alleged to have removed Sue from southern California. In fact, the declaration
states that "said order" was not personally served on the petitioner. A person cannot
be found in contempt of a court order of which he had no notice. There are no facts
set forth in the declaration or the contempt order which support the conclusion that
the petitioner had notice of the temporary restraining order of April 1, 1968, prior to
the time Sue was removed from the southern California area.
The trial court found that the petitioner violated the orders of April 22, 1968, and June
18, 1968, which required him to return the child Sue to the custody of her mother. The
court [273 Cal. App. 2d 146] made no finding in the contempt order that the petitioner
has had custody of Sue since he was served with an order on April 1, 1968, not to
remove her from her mother's custody. The contempt order contains no finding that
the petitioner removed Sue from her mother's custody. The omission is significant
since the court expressly found that the petitioner had removed James on November
7, 1968.
In the absence of present custody or possession of the child Sue, the petitioner
cannot perform the act of returning her to court. (See In re Ny, 201 Cal. App. 2d 728,
731 [20 Cal.Rptr. 114].) The contempt order does not set forth any facts which would
support the conclusion that the petitioner has it within his power to return Sue to her
mother in the absence of present custody. fn. 6
[9] Because contempt proceedings are quasi-criminal
in their nature no presumptions can be indulged in to
sustain the regularity, validity, or sufficiency of the
proceedings in support of the judgment (In re Circosta, 219 Cal.
App. 2d 777, 785 [33 Cal.Rptr. 514]; In re Mancini, 215 Cal. App. 2d 54, 56 [29
Cal.Rptr. 796]; In re Ny, 201 Cal. App. 2d 728, 731 [20 Cal.Rptr. 114]) or of the
judgment (Freeman v. Superior Court, 44 Cal. 2d 533, 536 [282 P.2d 857]; In re
Battelle, 207 Cal. 227, 255 [277 P. 725, 65 A.L.R. 1497]).
[10] The record of the court must affirmatively show
upon its face the facts upon which jurisdiction
depends so that an appellate court can determine if a
contempt has been committed (In re Moulton, 100 Cal. App. 2d 559,
562 [224 P.2d 76]). [11] A judgment of contempt must not only specify the act to be
performed, but if the commitment is predicated upon the provisions of section 1219
must also include a finding that such act is within the power of the contemner to
perform (In re Wells, 29 Cal. 2d 200, 202 [173 P.2d 811]). fn. 7
[7c] In this matter, the declaration upon which these contempt proceedings is based
alleges that the petitioner "had [273 Cal. App. 2d 147] the ability to comply with each
of the aforementioned orders but has wilfully failed or refused to do so." (Italics
added.) There is no factual allegation in the declaration to support a finding that the
petitioner has a present ability to perform the acts demanded by the court's orders. fn.
8 (See In re Moulton, 100 Cal. App. 2d 559, 563-564 [224 P.2d 76].)
For the reasons enumerated above we find that the trial court acted in excess of its
jurisdiction in ordering the indefinite commitment of the petitioner pursuant to section
1219 of the Code of Civil Procedure.
The writ is granted. The order to show cause
heretofore issued is discharged.
The trial court is ordered to exonerate the cash bail of
$5,000 plus the penalty assessment of $2,250 which is
now in the custody of the Los Angeles County Clerk
and to order that the county clerk return it to the
petitioner.
Aiso, J., concurred.
KAUS, P. J.
I concur in the result for all reasons stated, except this: I do not think it is necessary to hold that
where a party has violated a prohibitory injunction and the contempt power is used coercively under
section 1219 of the Code of Civil Procedure to compel him to undo what he has done, it is essential
that the court have first made a mandatory order to that effect. Although Dewey v. Superior Court, 81
Cal. 64 [22 P. 333] appears to support such a conclusion, I rather suspect that the case is a product
of an age in which mandatory injunctions were ill-favored. It seems to me that if a court enjoins a
defendant not to dig a ditch and he does dig a ditch, justice does not require a second order that he
fill up the ditch, before the court can order him to do so on pain of imprisonment until he does,
provided, of course, he has the present ability. [273 Cal. App. 2d 148]
FN *. Assigned by the Chairman of the Judicial Council.
FN 1. On April 15, 1968, the hearing on the order to show cause was continued to April 22, 1968, by
stipulation of the parties.
FN 2. The petitioner's father was not a party to the action for separate maintenance. The order of
April 1, 1968, provided: "This order shall not be served upon any person not a party to this action."
FN 3. The declaration indicates that "said order was not personally served on the adverse party. The
record indicates that the temporary restraining order of April 1, 1968, was personally served on the
petitioner on April 1, 1968. The record further discloses that the petitioner was present in court when
the orders of April 22, 1968, and June 18, 1968, were orally pronounced.
FN 4. In cases involving a wilful disobedience of a support order it is sufficient for the affidavit or
declaration to allege the making of the court order and a refusal to comply where the question of
ability to comply with the court's order has already been determined by the court as part of the
divorce proceeding and where the affidavit or declaration is filed soon after the order was entered.
(Mery v. Superior Court, 9 Cal. 2d 379, 380 [70 P.2d 932]; In re McCarty, 154 Cal. 534, 536-538 [98 P.
540].) In this matter the record does not reflect any factual determination based on an evidentiary
hearing that the petitioner had the ability to comply with the court's orders prior to the contempt
proceedings of January 27, 1969.
FN 5. We are informed by the return of the order to show cause filed by the sheriff
that the petitioner served a total of 11 days in custody as a result of the
contempt order. The maximum time he can be required to serve under
section 1218 for a violation of the April 22, 1968, order not to remove James
would be five days.
FN 6. In connection with the lack of a showing of custody and present ability to comply,
it should be noted that the temporary restraining order was directed to the petitioner
and his father. Also, in the minute order of June 18, 1968, the trial court directed the
plaintiff's attorney "to obtain a certified copy of this document, translate said order,
and forward it to defendant's father." These references to the petitioner's father cast
further doubt on the present ability of the petitioner to comply with the court's orders.
FN 7. We are informed by the petitioner's briefs that it was the testimony of
Catherine Liu at the contempt proceeding that the children "are now in
Formosa." If this was the evidence presented to the trial court it is obvious that it is
physically impossible for the petitioner to comply with the court's order to
return Sue while he is in jail in Los Angeles. It should be noted that the
proceedings in this matter were not reported. In making this review we cannot,
therefore, look to a transcript of the proceedings to learn what evidence was
presented to the trial court which might support the findings of fact and conclusions of
law.
FN 8. Where the record shows an ability to comply the fact that compliance cannot
occur while the individual is in jail is not a valid attack on a contempt order since "if the
contemnor indicates his willingness in good faith to perform he would be entitled, and
will be allowed, to leave jail in order to do so." (City of Vernon v. Superior Court, 38
Cal. 2d 509, 519 [241 P.2d 243].)
273 Cal. App. 2d 135
[Crim. No. 16186. Second Dist., Div. Five. May 20, 1969.]
In re DAVID K. LIU on Habeas Corpus.
COUNSEL
Warren M. Goodwin for Petitioner.
John D. Maharg, County Counsel, and Jean Louise Webster, Deputy County Counsel,
for Respondent. [273 Cal. App. 2d 137]
OPINION
ALARCON, J. pro tem. fn. *
The petitioner, David K. Liu, has filed an application for a writ of habeas corpus
to free him from the threat of further incarceration under an order of the
Superior Court for Los Angeles County which found him in contempt and
ordered his imprisonment until he has complied with certain court orders.
After reviewing the petition, this court issued an order to show cause on January
29, 1969, to be heard on February 20, 1969. The petitioner was ordered
released on the posting of bail in the amount of $5,000.
Facts
Catherine Liu filed an action for separate maintenance on April 1, 1968 against
the petitioner in this matter. The complaint prays for custody of the two children of the
parties. It is also alleged in the complaint that "defendant and his father by
threat and by force wrongfully has taken or remove [sic] Sue Mann Chiji Liu
from her custody, and she is a child of tender year [sic] and now living with
defendant and his father at 1344 Kellam Street, Los Angeles, California." An order to
show cause was issued on the same date (April 1, 1968) requiring inter alia that David
K. Liu show cause on April 15, 1968 fn. 1 why custody of the two children should not
be awarded to Catherine Liu during the pendency of the action.
On the same date and incorporated in the same document as the order to show cause
the court issued a temporary restraining order which provided in pertinent part:
"Pending ... the hearing on this order ... you are enjoined and restrained from:
1. Molesting, harassing, annoying or disturbing plaintiff in any manner whatsoever.
2. Removing daughter from the Southern California area.
3. (defendant or his father) removing the physical custody of her son James Chwan
Lhyang Liu, who is residing with plaintiff, from the So. Calif. area." fn. 2
The order to show cause and the temporary restraining order were served on the
petitioner, David K. Liu, on April 1, 1968. The affidavit of service contained in the
court's record [273 Cal. App. 2d 138] does not indicate the time that personal service
was made on the petitioner.
On April 22, 1968, custody of each of the children was awarded to Catherine
C. Liu. The petitioner was awarded the right of reasonable visitation. He was
restrained from removing the child James from the County of Los Angeles "without first
obtaining a prior order of court or the written consent of plaintiff."
The petitioner was also ordered to return Sue to the mother's custody in Los
Angeles at his expense no later than June 18, 1968.
Testimony was taken at the hearing of April 22, 1968, from Catherine C. Liu and
David K. Liu, however, no reporter was present.
The court made no finding that the petitioner had the present ability to return
Sue to her mother. The minute order of April 22, 1968, does not indicate
whether the evidence heard by the court supported the conclusion that the
petitioner had custody of Sue as of April 22, 1968, or that he had had her in
his custody since April 1, 1968. The minute order for that date is also silent as
to whether the petitioner removed Sue from the southern California area
after service was made of the April 1, 1968, temporary restraining order.
The record shows that on June 18, 1968, the petitioner appeared and
testified. The matter was continued to August 19, 1968. Again the
proceedings were not reported. The minute order for June 18, 1968, reflects that
the matter was continued to August 19, 1968, "at which time" the defendant was
ordered to produce Sue "to the jurisdiction of this court and to the custody of plaintiff."
The minute order is silent as to whether the petitioner complied with the order of April
22, 1968, by producing Sue in court no later than June 18, 1968.
The minute order for August 19, 1968, indicates that the matter was placed off
calendar at the request of plaintiff's counsel.
Again the record is silent as to whether the petitioner returned Sue to the
jurisdiction of the court on August 19, 1968, or to her mother as required by
the order of June 18, 1968.
On December 27, 1968, the superior court issued an order to the petitioner
requiring that he show cause why he should not be found guilty of contempt
of court for wilfully disobeying the orders made on April 1, 1968, April 22, 1968,
and June 18, 1968, based on the declaration filed by Catherine Liu.
The declaration was incorporated in a form required to be used "exclusively upon all
applications for Order to Show [273 Cal. App. 2d 139] Cause in Re Contempt in
domestic relations cases."
The declaration alleges:
"That defendant was enjoined from removing daughter Sue Mann Chiji Liu from
Southern California area and did so remove her on April 1, 1968.
That defendant was restrained from removing son James Chwan Sh Yang from
custody of plaintiff and defendant did [sic] so remove him on November 7,
1968.
That defendant was ordered to return daughter Sue Mann Chiji Liu to custody of
plaintiff and defendant has failed and refused to do so and has in fact removed him
[sic] from Southern California area. The Defendant had the ability to comply with
each of the aforementioned orders but has wilfully failed or refused to do
so." The declaration also alleges that the order was audibly pronounced in
the presence of the petitioner. fn. 3
On January 27, 1969, the petitioner was adjudged in contempt of court and
ordered sentenced to the county jail to remain there until such time as he
purged himself of contempt by "complying with said orders." The court found
that the defendant violated the orders of April 1, 1968, April 22, 1968, and June 18,
1968, and that such violation "is a continuing contempt." The court expressly found
that "the defendant has the ability to compy with said orders and further that the
defendant continues to have the ability to comply with said orders." The contempt
proceedings were not reported.
Discussion
A trial court when faced with a wilful refusal to obey a court order can take action to
punish such disobedience under section 1218 of the Code of Civil
Procedure. Section 1218 provides: "Upon the answer and evidence taken, the
court or judge must determine whether the person proceeded against is guilty of the
contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may
be imposed on him not exceeding five hundred dollars ($500), or he
may be imprisoned not exceeding five days, or both; provided, however,
that in justice courts the judge may punish by fine or imprisonment or both,
such fine not to exceed, in any case, one hundred dollars ($100), and such
imprisonment one day; the conviction, specifying
particularly the offense, and the judgment [273 Cal. App. 2d
140] thereon, must be entered in the docket. No party, who is in contempt of a court
order or judgment in a divorce or separate maintenance action, shall be permitted to
enforce such order or judgment, by way of execution or otherwise, either in the same
action or by way of a separate action, against the other party. This restriction shall not
affect nor apply to the enforcement of child support orders." Under certain
circumstances the court has the power to compel obedience to its orders by
imprisoning the contemner until he has complied. Section 1219 of the Code
of Civil Procedure provides: "If the contempt is omission to perform any act,
the person may be imprisoned until performance. When the contempt
consists in the omission to perform an act which is yet in the power of the
person to perform, he may be imprisoned until he have performed it, and in
that case the act must be specified in the warrant of commitment."
Here the trial court attempted to compel performance of the orders of April 1, 1968,
April 22, 1968, and June 18, 1968, under section 1219 by imprisoning the petitioner
indefinitely until he complies with these orders.
Sufficiency of the Declaration
[1] A proceeding for an adjudication for constructive contempt is initiated by the filing
of an affidavit or declaration. Such affidavit or declaration must set forth the facts
constituting the alleged contempt in order to confer jurisdiction upon the court to
exercise its contempt powers (Warner v. Superior Court, 126 Cal. App. 2d 821, 824
[273 P.2d 89]). The accused is entitled to notice of the particular accusation against
him (In re Felthoven, 75 Cal. App. 2d 465, 468-469 [171 P.2d 47]).
[2] The facts essential to jurisdiction for a contempt proceeding are
"(1) the making of the order;
(2) knowledge of the order;
(3) ability of the respondent to render compliance, fn. 4
(4) wilful disobedience of the order." (Warner v. [273 Cal. App. 2d 141] Superior
Court, 126 Cal. App. 2d 821, 824 [273 P.2d 89]; see also In re Ny, 201 Cal. App. 2d
728, 731 [20 Cal.Rptr. 114].)
On the face of the declaration in this matter sufficient facts were set forth to give the
court jurisdiction to punish the petitioner for contempt by imposition of a fine or a
definite jail term under section 1218 of the Code of Civil Procedure. The declaration
alleges that the petitioner wilfully disobeyed certain court orders pronounced in his
presence although he had the ability to perform the acts required of him.
The petitioner was given notice of the fact that he faced punishment for contempt
under section 1218.
Unfortunately, the trial judge chose not to punish the petitioner for his past
violations of specific court orders, but to imprison him to enforce future
compliance with these orders.
However, section 1219 can only be invoked to compel obedience to a court order
where the desired act is "yet in the power of the person to perform." The declaration
does not allege that the petitioner has the present ability to comply with the
court's orders. Thus, the petitioner had no knowledge that he faced
indefinite imprisonment under section 1219 until he heard the judge order
the sheriff to keep him in the county jail indefinitely.
[3] A contempt proceeding is quasi-criminal in nature
(Hotaling v. Superior Court, 191 Cal. 501, 504 [217 P. 73, 29 A.L.R. 127]; Phillips v.
Superior Court, 22 Cal. 2d 256, 257 [137 P.2d 838]; Freeman v. Superior Court, 44
Cal. 2d 533, 538 [282 P.2d 857]).
The accused person is entitled to the procedural safeguards available to a
person accused of a criminal charge (City of Culver City v. Superior Court, 38 Cal.
2d 535, 541 [241 P.2d 258]; Ransom v. Superior Court, 262 Cal. App. 2d 271 [68
Cal.Rptr. 507]) including due process. (In re Shelley, 197 Cal. App. 2d
199, 202 [16 Cal.Rptr. 916].) [4] Due process includes the right to
know the exact nature of the charge against the
accused so that he can prepare and present his
defense. Otherwise he will be taken by surprise by the
evidence offered at his trial (In re Hess, 45 Cal. 2d
171, 175 [288 P.2d 5]).
In this matter the petitioner was placed on notice that he was accused of violating the
court's orders at a time when he had the ability to comply.
He had no notice that he was facing an accusation that having the present
ability to comply he was still wilfully refusing to perform the acts required of
him. [5] The party seeking to have a person held in contempt has the burden of
proving his ability to comply beyond [273 Cal. App. 2d 142] a reasonable
doubt. (Bridges v. Superior Court, 14 Cal. 2d 464, 465 [94 P. 2d 983], revd. on other
grounds by U.S. Sup. Ct., 314 U.S. 252 [86 L.Ed. 192, 62 S.Ct. 190, 159 A.L.R. 1346];
Oil Workers Intl. Union v. Superior Court, 103 Cal. App. 2d 512, 517 [230 P.2d 71].) If
the petitioner had been given notice by the declaration that his present ability to
comply was in issue he would have had an opportunity in preparing his defense to rely
on the weakness of the case against him or to present evidence in order to attempt to
raise a reasonable doubt of his present ability to comply. He went to court warned
that he faced statutorily circumscribed punishment for past disobedience of
the court's orders only to find himself confined indefinitely unless he
performed certain acts in the future. [6]
Because of the fact that under section 1219 an
alleged contemner faces drastic punishment and
the possibility of life imprisonment for his failure
to obey a court order contempt proceedings must
be strictly construed and any uncertainties or
ambiguities must be resolved in favor of the
accused (see Butler v. Superior Court, 178 Cal. App. 2d 763, 765 [3 Cal.Rptr.
180].) We hold that a trial court acts in excess of its jurisdiction in ordering an alleged
contemner to be imprisoned until he complies with the court's orders where the
declaration which initiated the contempt proceedings alleges that the contemner had
the ability to comply but fails to allege facts showing a present ability to comply
with the court's order.
The Contempt Order
[7a] In reviewing the contempt order of January 27, 1969 to determine if the trial court
had sufficient evidence before it to support the contempt finding, we must look to the
declaration of the party seeking the contempt order and the court's records since the
contempt proceedings were conducted in the absence of a court reporter.
In the contempt order of January 27, 1969, the trial court found that the petitioner "in
violation of the restraining order of April 22, 1968 the petitioner removed the minor
child James from the custody of the plaintiff and the jurisdiction of the court, on or
about November 7, 1968."
The order of April 22, 1968, restrained the petitioner from removing James from Los
Angeles County "without first obtaining a prior court order or the written consent of
plaintiff." The declaration does not set forth any facts which would support a finding
that prior court approval was not obtained and that the plaintiff did not consent in
writing to [273 Cal. App. 2d 143] the removal of James from Los Angeles County.
Thus, the mere removal of James from Los Angeles County does not constitute a
violation of the order of April 22, 1968, unless it was done without prior court approval
or written consent of the child's mother. Therefore, the declaration does not set forth
facts showing a violation of the order of April 22, 1968, since it fails to allege facts
showing a lack of court approval or written consent. The burden of proving lack of
written consent or court approval was on the party seeking the contempt order.
The contempt order states the petitioner has the present ability to comply with the
court's order of April 22, 1968, against the removal of James from Los Angeles County.
However, the court also found that James was removed by the petitioner from the
custody of the plaintiff and the jurisdiction of the court on or about November 7, 1968.
If we combine these two findings we are thus faced with a determination by the court
that the petitioner has the present ability to comply with an order not to remove James
from Los Angeles County despite the fact that he has already removed James from
Los Angeles County.
By its contempt order, the court has demanded that the petitioner remain in jail until
he purges himself of his contempt of the order not to remove James from his mother's
custody. The court did not order the petitioner to be punished for his
contempt under section 1218. fn. 5
The trial court did not make any order subsequent to April 22, 1968, requiring the
petitioner to return James to his mother or to the jurisdiction of the court. Once the
petitioner removed the child from the custody of his mother the prohibited act was an
accomplished historical fact. There is no way in which the petitioner can now
not remove the child on November 7, 1968. It is now impossible for him to
comply with the order against removal. There is nothing the petitioner can now do
to purge himself of his contempt of the April 22, 1968 order.
A bell cannot be unrung although a court orders that it be done. Before
section 1219 can be invoked to compel compliance with a valid court order, the
contemner must have it within his power to perform the act. To continue to imprison
the petitioner for a violation of the April 22, 1968, order [273 Cal. App. 2d 144] insofar
as it relates to the child James would require him to spend the rest of his life in jail,
since he can never comply with the order. The following language from an early
California case aptly points out the dilemma created by the court's contempt order of
imprisonment for the removal of James. "The law does not require a vain act to be
done. The prisoner may still be liable to fine and imprisonment for disobeying the
original order, but he cannot be further restrained of his liberty, under the present
warrant, as it is shown that it is now impossible to comply with the order, and his
imprisonment would of necessity be perpetual." (Ex parte Rowe, 7 Cal. 176, 177.)
It is apparent from a review of this record that the trial court ordered the petitioner
imprisoned in order to compel him to return James and Sue to their mother. However,
the contempt order and the declaration refer only to the court's orders of April 1,
1968, April 22, 1968, and June 18, 1968. None of these orders require the return of
James.
[8] A trial court has no jurisdiction to order the imprisonment of an alleged contemner
until he performs an act which is in his power to perform unless the act was required to
be performed by the terms of the original order which he is charged with violating.
(Dewey v. Superior Court, 81 Cal. 64, 67 [22 P. 333]; Hotaling v. Superior Court, 191
Cal. 501, 508 [217 P. 73, 29 A.L.R. 127].) In the Dewey case, the trial court issued a
judgment enjoining the defendant from maintaining a certain dam or other
obstructions in Mariposa Creek and from maintaining a ditch or canal in any condition
which would interfere with the rights of the plaintiff. Some time thereafter contempt
proceedings were instituted by the plaintiff. The defendant was adjudged guilty of
contempt, fined $150, and was ordered confined in the county jail until all dams and
obstructions which would obstruct the flow of the water were removed and until the
ditch was filled up to stop any diversion of the creek's water. The trial court found that
it was within the power of the contemner to remove the dam and fill up the mouth of
the ditch. The Supreme Court vacated the order insofar as it compelled the indefinite
confinement of the contemner on the grounds that "the original order did not require
him to perform the act which is by this order enjoined upon him, and for the
non-performance of which it is now ordered that he be imprisoned." (Dewey v.
Superior Court, 81 Cal. 64, 67 [22 P. 333].) Thus, in Dewey the California Supreme
Court ruled that a trial court has no jurisdiction to [273 Cal. App. 2d 145] imprison a
defendant for contempt until he removes a dam and a ditch where the original order of
the court restrained him from maintaining the dam and the ditch unless the court had
also issued a second order requiring him to remove the dam and the ditch.
[7b] The contempt order stated that the petitioner had the present ability to perform
the acts required of him by the orders of April 1, 1968, April 22, 1968, and June 18,
1968. However, since none of these orders required him to return James there is no
finding of a present ability to return James.
In the order to compel the return of James, the trial judge should have issued a new
order requiring that the petitioner return James to his mother. If the petitioner then
wilfully disobeyed this new order with the present ability to perform the act of returning
James, the trial court would then have the jurisdiction to invoke section 1219 to
imprison the petitioner until he complies.
The trial court found that the petitioner violated the temporary restraining order of
April 1, 1968. However, the order of April 1, 1968, can no longer be invoked to form
the basis of a contempt order since it was superseded by the minute order of April 22,
1968, as to the minor child James since both orders dealt with the same subject
matter. (The order of April 22, 1968, is also functus officio insofar as it concerns the
child Sue since the June 18, 1968, order concerns the same subject matter.) (See
Levy v. Levy, 245 Cal. App. 2d 341, 349-350 [53 Cal.Rptr. 790].)
The declaration states that the petitioner removed Sue from the southern California
area on April 1, 1968, in violation of the temporary restraining order of April 1, 1968.
The declaration does not set forth any facts which indicate that the petitioner had
notice of the temporary restraining order which was served on him on the same date
he is alleged to have removed Sue from southern California. In fact, the declaration
states that "said order" was not personally served on the petitioner. A person cannot
be found in contempt of a court order of which he had no notice. There are no facts
set forth in the declaration or the contempt order which support the conclusion that
the petitioner had notice of the temporary restraining order of April 1, 1968, prior to
the time Sue was removed from the southern California area.
The trial court found that the petitioner violated the orders of April 22, 1968, and June
18, 1968, which required him to return the child Sue to the custody of her mother. The
court [273 Cal. App. 2d 146] made no finding in the contempt order that the petitioner
has had custody of Sue since he was served with an order on April 1, 1968, not to
remove her from her mother's custody. The contempt order contains no finding that
the petitioner removed Sue from her mother's custody. The omission is significant
since the court expressly found that the petitioner had removed James on November
7, 1968.
In the absence of present custody or possession of the child Sue, the petitioner
cannot perform the act of returning her to court. (See In re Ny, 201 Cal. App. 2d 728,
731 [20 Cal.Rptr. 114].) The contempt order does not set forth any facts which would
support the conclusion that the petitioner has it within his power to return Sue to her
mother in the absence of present custody. fn. 6
[9] Because contempt proceedings are quasi-criminal
in their nature no presumptions can be indulged in to
sustain the regularity, validity, or sufficiency of the
proceedings in support of the judgment (In re Circosta, 219 Cal.
App. 2d 777, 785 [33 Cal.Rptr. 514]; In re Mancini, 215 Cal. App. 2d 54, 56 [29
Cal.Rptr. 796]; In re Ny, 201 Cal. App. 2d 728, 731 [20 Cal.Rptr. 114]) or of the
judgment (Freeman v. Superior Court, 44 Cal. 2d 533, 536 [282 P.2d 857]; In re
Battelle, 207 Cal. 227, 255 [277 P. 725, 65 A.L.R. 1497]).
[10] The record of the court must affirmatively show
upon its face the facts upon which jurisdiction
depends so that an appellate court can determine if a
contempt has been committed (In re Moulton, 100 Cal. App. 2d 559,
562 [224 P.2d 76]). [11] A judgment of contempt must not only specify the act to be
performed, but if the commitment is predicated upon the provisions of section 1219
must also include a finding that such act is within the power of the contemner to
perform (In re Wells, 29 Cal. 2d 200, 202 [173 P.2d 811]). fn. 7
[7c] In this matter, the declaration upon which these contempt proceedings is based
alleges that the petitioner "had [273 Cal. App. 2d 147] the ability to comply with each
of the aforementioned orders but has wilfully failed or refused to do so." (Italics
added.) There is no factual allegation in the declaration to support a finding that the
petitioner has a present ability to perform the acts demanded by the court's orders. fn.
8 (See In re Moulton, 100 Cal. App. 2d 559, 563-564 [224 P.2d 76].)
For the reasons enumerated above we find that the trial court acted in excess of its
jurisdiction in ordering the indefinite commitment of the petitioner pursuant to section
1219 of the Code of Civil Procedure.
The writ is granted. The order to show cause
heretofore issued is discharged.
The trial court is ordered to exonerate the cash bail of
$5,000 plus the penalty assessment of $2,250 which is
now in the custody of the Los Angeles County Clerk
and to order that the county clerk return it to the
petitioner.
Aiso, J., concurred.
KAUS, P. J.
I concur in the result for all reasons stated, except this: I do not think it is necessary to hold that
where a party has violated a prohibitory injunction and the contempt power is used coercively under
section 1219 of the Code of Civil Procedure to compel him to undo what he has done, it is essential
that the court have first made a mandatory order to that effect. Although Dewey v. Superior Court, 81
Cal. 64 [22 P. 333] appears to support such a conclusion, I rather suspect that the case is a product
of an age in which mandatory injunctions were ill-favored. It seems to me that if a court enjoins a
defendant not to dig a ditch and he does dig a ditch, justice does not require a second order that he
fill up the ditch, before the court can order him to do so on pain of imprisonment until he does,
provided, of course, he has the present ability. [273 Cal. App. 2d 148]
FN *. Assigned by the Chairman of the Judicial Council.
FN 1. On April 15, 1968, the hearing on the order to show cause was continued to April 22, 1968, by
stipulation of the parties.
FN 2. The petitioner's father was not a party to the action for separate maintenance. The order of
April 1, 1968, provided: "This order shall not be served upon any person not a party to this action."
FN 3. The declaration indicates that "said order was not personally served on the adverse party. The
record indicates that the temporary restraining order of April 1, 1968, was personally served on the
petitioner on April 1, 1968. The record further discloses that the petitioner was present in court when
the orders of April 22, 1968, and June 18, 1968, were orally pronounced.
FN 4. In cases involving a wilful disobedience of a support order it is sufficient for the affidavit or
declaration to allege the making of the court order and a refusal to comply where the question of
ability to comply with the court's order has already been determined by the court as part of the
divorce proceeding and where the affidavit or declaration is filed soon after the order was entered.
(Mery v. Superior Court, 9 Cal. 2d 379, 380 [70 P.2d 932]; In re McCarty, 154 Cal. 534, 536-538 [98 P.
540].) In this matter the record does not reflect any factual determination based on an evidentiary
hearing that the petitioner had the ability to comply with the court's orders prior to the contempt
proceedings of January 27, 1969.
FN 5. We are informed by the return of the order to show cause filed by the sheriff
that the petitioner served a total of 11 days in custody as a result of the
contempt order. The maximum time he can be required to serve under
section 1218 for a violation of the April 22, 1968, order not to remove James
would be five days.
FN 6. In connection with the lack of a showing of custody and present ability to comply,
it should be noted that the temporary restraining order was directed to the petitioner
and his father. Also, in the minute order of June 18, 1968, the trial court directed the
plaintiff's attorney "to obtain a certified copy of this document, translate said order,
and forward it to defendant's father." These references to the petitioner's father cast
further doubt on the present ability of the petitioner to comply with the court's orders.
FN 7. We are informed by the petitioner's briefs that it was the testimony of
Catherine Liu at the contempt proceeding that the children "are now in
Formosa." If this was the evidence presented to the trial court it is obvious that it is
physically impossible for the petitioner to comply with the court's order to
return Sue while he is in jail in Los Angeles. It should be noted that the
proceedings in this matter were not reported. In making this review we cannot,
therefore, look to a transcript of the proceedings to learn what evidence was
presented to the trial court which might support the findings of fact and conclusions of
law.
FN 8. Where the record shows an ability to comply the fact that compliance cannot
occur while the individual is in jail is not a valid attack on a contempt order since "if the
contemnor indicates his willingness in good faith to perform he would be entitled, and
will be allowed, to leave jail in order to do so." (City of Vernon v. Superior Court, 38
Cal. 2d 509, 519 [241 P.2d 243].)
Court was silent on
findings. Didn't show
much interest.
findings. Didn't show
much interest.
[Wife's declaration
shows that daughter
was removed before
the court order.
shows that daughter
was removed before
the court order.
Knowledge affected
by court's refusal to
clarify
Order too difficult
by court's refusal to
clarify
Order too difficult
past v. present
what if order obtained
by fraud
by fraud
court asking the
impossible
impossible
| In re Liu 1969 1218 of the Code of Civil Procedure |
IN THE UNITED STATES
COURT OF APPEALS FOR
THE FIFTH ...
Jan 27, 2012 – Evan Stone,
Counsel for Plaintiff, hereby
files this Motion to Stay the
Imposition of Sanctions
Pending Appeal and states as
follows:...serving subpoenas
on nonparty Internet service
providers without leave of court
COURT OF APPEALS FOR
THE FIFTH ...
Jan 27, 2012 – Evan Stone,
Counsel for Plaintiff, hereby
files this Motion to Stay the
Imposition of Sanctions
Pending Appeal and states as
follows:...serving subpoenas
on nonparty Internet service
providers without leave of court
Sanctions caselaw
Sanctions Caselaw
Contempt and sanctions
Article on the Consevatorship
of Becca
Conservatorship of Becca
Appellate opinion
Contempt and sanctions
Article on the Consevatorship
of Becca
Conservatorship of Becca
Appellate opinion
Court Reverses Sanctions Against
Pasadena Attorney
Conservatorship of Becerra, 09 S.O.S. 4538
Metropolitan News-Enterprise
July 29, 2009
By SHERRI M. OKAMOTO
The Fourth District Court of Appeal yesterday reversed an
award of over $3,500 in monetary sanctions and attorney fees
against a Pasadena attorney based on her alleged violations of
the California Rules of Professional Conduct.
Div. One explained that San Diego Superior Court Judge David
G. Brown’s imposition of sanctions was legally unsupportable
because Linda Paquette had not violated a court order by
disregarding a request by counsel for a proposed conservatee
that all communications to her client go through her.
Paquette represented Vida Negrete in her petition to obtain a
conservatorship over Bibiano Becerra in 2007.
Becerra had suffered serious brain and other injuries in a 2003
construction accident. He later recovered approximately $1.6
million in settlement, which was placed into a trust for which
Negrete served as trustee.
San Diego attorney Parisa P. Farokhi was appointed as Becerra’
s attorney and requested that all contact with her client be made
through her.
In April 2008, Farokhi accused Paquette of having contacted
her client without her consent and knowledge, which interfered
with her representation of Becerra. Farokhi requested an order
to show cause for sanctions or a contempt ruling, on the
grounds that Paquette had violated the Rules of Professional
Conduct in that manner.
Based on Farokhi’s representations, Brown announced at an
April 11 hearing that an order to show cause regarding
sanctions would be heard May 30 and the court clerk
subsequently served two written notices of the order to show
cause regarding sanctions, citing Code of Civil Procedure Secs.
177.5 and/or 575.2.
Sec. 177.5 authorizes a judicial officer to impose monetary
sanctions “payable to the court, for any violation of a lawful
court order by a person, done without good cause or substantial
justification.” Sec. 575.2(a) permits a court’s local rules to
prescribe sanctions, including penalties or payment of opposing
counsel’s attorney fees, for noncompliance with those rules.
Both orders were dated April 14 and signed by Judge Richard
G. Cline. One order was printed on a court form and stated that
the hearing would be held in Cline’s courtroom, but it did not fill
in the blanks regarding the basis for the sanctions. The other
order gave similarly general notice, except that it stated the
matter would be heard in Brown’s courtroom.
On May 30, the sanctions matter came for hearing in Brown’s
courtroom but Paquette failed to appear, as she was in Cline’s
courtroom and had to be redirected to Brown’s courtroom. In the
meantime, Brown heard argument from Farokhi and ordered
Paquette to pay $1,000 sanctions to the clerk of the court and
pay attorney fees to Farokhi in the amount of $2,587.50.
Paquette appealed, contending that the sanctions were
unsupported by statutory authority or the record in the form of a
proven violation of an existing lawful court order, as opposed to
a different finding by the probate court of her violation of a rule
of professional conduct that could lead to attorney disciplinary
proceedings.
Writing for the appellate court, Justice Richard D. Huffman
reasoned that the probate court’s order was “largely or entirely
based on its belief that the Rules of Professional Conduct had
been knowingly violated and this amounted to a violation of
some court order or a rule of court.”
He explained that Farokhi had the right to request other
attorneys in the conservatorship case not independently contact
her client, and a violation of her request would amount to a
violation of Rule 2-100(A)—which forbids attorneys from
contacting with an individual represented by counsel without that
lawyer’s consent.
“Although the standards of professional responsibility prepared
by the State Bar are subject to approval by the Supreme Court,
and as such are binding upon counsel, they are not normally
regarded as court orders or local rules of the type referred to in
sections 177.5 and 575.2, for purposes of awarding sanctions,”
Huffman said.
Huffman therefore concluded that the probate court’s apparent
misinterpretation of Secs. 177.5 and 575.2 to justify the setting
of a sanctions hearing and then to find Paquette had violated
court orders on that basis was incorrect and in excess of the
probate court’s discretion.
Huffman also noted that the oral and written orders failed to
comply with Sec. 177.5’s requirements that sanction orders be
in writing and recite in detail the conduct or circumstances
justifying the order and, joined by Justices Gilbert Nares and
Cynthia Aaron, rejected the sanctions order as “at all times
ineffective, invalid and void.”
The case is Conservatorship of Becerra, 09 S.O.S. 4538.
Pasadena Attorney
Conservatorship of Becerra, 09 S.O.S. 4538
Metropolitan News-Enterprise
July 29, 2009
By SHERRI M. OKAMOTO
The Fourth District Court of Appeal yesterday reversed an
award of over $3,500 in monetary sanctions and attorney fees
against a Pasadena attorney based on her alleged violations of
the California Rules of Professional Conduct.
Div. One explained that San Diego Superior Court Judge David
G. Brown’s imposition of sanctions was legally unsupportable
because Linda Paquette had not violated a court order by
disregarding a request by counsel for a proposed conservatee
that all communications to her client go through her.
Paquette represented Vida Negrete in her petition to obtain a
conservatorship over Bibiano Becerra in 2007.
Becerra had suffered serious brain and other injuries in a 2003
construction accident. He later recovered approximately $1.6
million in settlement, which was placed into a trust for which
Negrete served as trustee.
San Diego attorney Parisa P. Farokhi was appointed as Becerra’
s attorney and requested that all contact with her client be made
through her.
In April 2008, Farokhi accused Paquette of having contacted
her client without her consent and knowledge, which interfered
with her representation of Becerra. Farokhi requested an order
to show cause for sanctions or a contempt ruling, on the
grounds that Paquette had violated the Rules of Professional
Conduct in that manner.
Based on Farokhi’s representations, Brown announced at an
April 11 hearing that an order to show cause regarding
sanctions would be heard May 30 and the court clerk
subsequently served two written notices of the order to show
cause regarding sanctions, citing Code of Civil Procedure Secs.
177.5 and/or 575.2.
Sec. 177.5 authorizes a judicial officer to impose monetary
sanctions “payable to the court, for any violation of a lawful
court order by a person, done without good cause or substantial
justification.” Sec. 575.2(a) permits a court’s local rules to
prescribe sanctions, including penalties or payment of opposing
counsel’s attorney fees, for noncompliance with those rules.
Both orders were dated April 14 and signed by Judge Richard
G. Cline. One order was printed on a court form and stated that
the hearing would be held in Cline’s courtroom, but it did not fill
in the blanks regarding the basis for the sanctions. The other
order gave similarly general notice, except that it stated the
matter would be heard in Brown’s courtroom.
On May 30, the sanctions matter came for hearing in Brown’s
courtroom but Paquette failed to appear, as she was in Cline’s
courtroom and had to be redirected to Brown’s courtroom. In the
meantime, Brown heard argument from Farokhi and ordered
Paquette to pay $1,000 sanctions to the clerk of the court and
pay attorney fees to Farokhi in the amount of $2,587.50.
Paquette appealed, contending that the sanctions were
unsupported by statutory authority or the record in the form of a
proven violation of an existing lawful court order, as opposed to
a different finding by the probate court of her violation of a rule
of professional conduct that could lead to attorney disciplinary
proceedings.
Writing for the appellate court, Justice Richard D. Huffman
reasoned that the probate court’s order was “largely or entirely
based on its belief that the Rules of Professional Conduct had
been knowingly violated and this amounted to a violation of
some court order or a rule of court.”
He explained that Farokhi had the right to request other
attorneys in the conservatorship case not independently contact
her client, and a violation of her request would amount to a
violation of Rule 2-100(A)—which forbids attorneys from
contacting with an individual represented by counsel without that
lawyer’s consent.
“Although the standards of professional responsibility prepared
by the State Bar are subject to approval by the Supreme Court,
and as such are binding upon counsel, they are not normally
regarded as court orders or local rules of the type referred to in
sections 177.5 and 575.2, for purposes of awarding sanctions,”
Huffman said.
Huffman therefore concluded that the probate court’s apparent
misinterpretation of Secs. 177.5 and 575.2 to justify the setting
of a sanctions hearing and then to find Paquette had violated
court orders on that basis was incorrect and in excess of the
probate court’s discretion.
Huffman also noted that the oral and written orders failed to
comply with Sec. 177.5’s requirements that sanction orders be
in writing and recite in detail the conduct or circumstances
justifying the order and, joined by Justices Gilbert Nares and
Cynthia Aaron, rejected the sanctions order as “at all times
ineffective, invalid and void.”
The case is Conservatorship of Becerra, 09 S.O.S. 4538.
Sanctions against attorneys
Slemaker v Woolley
Sanctions against attorney for
suspending deposition
(1989)207 Cal. App. 3d 1377 [255 Cal. Rptr. 532][No.
B033490.
Court of Appeals of California, Second Appellate District,
Division One.
February 21, 1989
C. M. SLEMAKER et al., Plaintiffs and Respondents,
v.
JOHN WOOLLEY et al., Defendants and Appellants
(Opinion by Ortega, J., with Spencer, P. J., and Devich, J.,
concurring.)
COUNSEL
Sanders, Barnet, Jacobson, Goldman & Mosk, Richard
M. Mosk, Bernard P. Simons, Scott L. Zimmerman, Burkley,
Moore, Greenberg & Lyman and Walter R. Burkley, Jr.,
for Defendants and Appellants.
Spierer, Woodward, Denis & Furstman and Stanley T.
Denis, Jr., for Plaintiffs and Respondents.
OPINION
Introduction
This is a purported appeal from an order of the superior
court imposing sanctions on counsel for improperly
suspending the deposition of a witness. We hold that the
order is not separately appealable and dismiss the
appeal.Factual and Procedural HistoryOn January 15,
1988, plaintiffs C. M. Slemaker and Roberta Slemaker
served notice by telecopy to defendants' counsel of
depositions of two witnesses. The depositions were both
noticed for January 25, 1988.
Defense counsel claimed that since Monday January 18
was a holiday (Martin Luther King, Jr.'s, birthday) he was
unaware of the notice until January 19.
Mr. Zimmerman, representing defendants John Woolley and
Joan Woolley, attempted to reschedule the depositions,
claiming that one of the defendants wanted to be present
but couldn't do so on such short notice. Mr. Denis, counsel
for plaintiffs, refused to reschedule the depositions but later
[207 Cal. App. 3d 1379] cancelled the first of the two. Mr.
Zimmerman appeared for the second one and immediately
suspended it invoking Code of Civil Procedure section
2025, subdivision (n). fn. 1 At this point the situation was
overtaken by schoolyard protocol. Mr. Denis claims that Mr.
Zimmerman threatened the court reporter and got her so
upset she lost her train of thought. Mr. Zimmerman claims
Mr. Denis accosted him out in the hallway and physically
shoved him around causing him to leave without an exhibit
he was waiting for. Not willing to resolve the discovery
dispute between themselves like professionals, they each
ran to an already overburdened superior court for
relief.After patiently listening to both counsel carry on, the
trial court imposed $1,000 sanctions on Mr. Zimmerman's
firm. And, predictably, here came the appeal. While both
counsel have expended prodigious energy in preparing
their briefs, neither addressed the threshold question of
whether the order is appealable until invited to do so by this
court.ContentionsAppellant contends: section 2025,
subdivision (n) allows a party to suspend a deposition that
is being taken in bad faith and seek a protective order; the
notice of the deposition was defective and attempting to
take the deposition nonetheless is bad faith; and even if
that position is incorrect, sanctions should not have been
imposed because counsel was acting in good faith under
color of a statute.DiscussionIt is first necessary to
determine whether the sanction herein was imposed under
section 128.5 or section 2025. The former is appealable
(Rabbit v. Vincente (1987) 195 Cal. App. 3d 170, 173 [240
Cal.Rptr. 524]), while, as we shall explain below, the latter is
not. The minute order issued by the court did not specify
which section it relied upon. In its spoken comments, the
court did not refer to a specific section. However, the
reporter's transcript reveals that 2025 was the only section
mentioned during the course of the hearing. The moving
papers of counsel made repeated references to sections
128.5, 2023, and numerous subdivisions of 2025 including
subdivision (n). Section 2025, subdivision (n) allows the
suspension of an oral deposition under certain
circumstances and the imposition of sanctions against
counsel for improper use of the provision and is clearly
applicable to the instant matter.Section 128.5, subdivision
(c) specifically requires that an order "shall be in
writing and shall recite in detail the conduct or
circumstances justifying [207 Cal. App. 3d 1380] the
order."The only order presented to us is the minute
order of February 18, 1988. It does not contain any of the
recitations required by section 128.5. [1] "'A judgment
or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.'" (Denham v. Superior Court
(1970) 2 Cal. 3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193],
italics omitted.) As the court did not comply with the
requirements of section 128.5, subdivision (c), we can
conclude only that the court's order imposing sanctions was
pursuant to section 2025, subdivision (n) for failure to make
discovery.In Kibrej v. Fisher (1983) 148 Cal. App. 3d 1113
[196 Cal.Rptr. 454], a party appealed an order imposing
sanctions for his failure to attend a deposition. The Court of
Appeal dismissed the appeal stating, at pages
1115-1116:"A fundamental principle of appellate
review is the rule that an appeal may be taken only from a
final judgment in an action. This rule is codified in section
904.1 of the Code of Civil Procedure. The theory behind
the rule is that piecemeal disposition and multiple appeals
in a single action are oppressive and costly, and review of
intermediate rulings should await the final disposition of the
case. [Citation.]A recognized exception to this rule is the
'collateral order doctrine,' which permits an appeal from a
final determination of a collateral matter which requires a
party to immediately pay money or perform some other act.
This doctrine was utilized in Wisniewski v. Clary (1975) 46
Cal. App. 3d 499, 502 [120 Cal.Rptr. 176], to allow an
appeal from an order requiring payment of money as a
sanction for failure to attend a mandatory settlement
conference. wisniewski was cited by the California Supreme
Court in Baug[u]ess v. Paine (1978) 22 Cal. 3d 626, 634
[150 Cal.Rptr. 461, 586 P.2d 942], footnote 3, in which an
order imposing sanctions for attorney misconduct was held
appealable as a final order on a collateral matter directing
the payment of money. [¶]However, the Supreme
Court expressed a different view as to the appealability of
orders levying sanctions for failure to make discovery. In
deciding that an extraordinary writ was a proper remedy to
review such an order, the court stated: 'The better view is
that an order made for the purposes of furthering discovery
proceedings, or granting sanctions for refusal to make
discovery, is not appealable [citations].' (Lund v. Superior
Court (1964) 61 Cal. 2d 698, 709 [39 Cal.Rptr. 891, 394
P.2d 707].) Although the court did not find it necessary to
decide the question of the order's appealability, their 'better
view' was followed in Munson v. Singer (1965) 238 Cal.
App. 2d 697 [48 Cal.Rptr. 167], where an appeal was
dismissed expressly because an order imposing sanctions
for failure to appear at depositions was not appealable on
its own.An appeal from a minute order imposing sanctions
for refusal to answer questions during depositions was
dismissed on the same basis in Freidberg v. Freidberg
(1970) 9 Cal. App. 3d 754, 764 [88 Cal.Rptr. 451]. [¶]
[207 Cal. App. 3d 1381] The appealable orders imposing
sanctions in the Baug[u]ess and Wisniewski cases, supra,
are distinguished from the nonappealable discovery-related
sanctions which follow the Lund view, supra, 61 Cal. 2d
698, in the more recent case of People ex rel. Gow v.
Mitchell Brothers' Santa Ana Theater (1981) 114 Cal. App.
3d 923, 937 [171 Cal.Rptr. 85], footnote 15 (revd. and
remanded on other grounds (1981) 454 U.S. 90 [70
L.Ed.2d 262, 102 S.Ct. 172]).Thus, the order levying
sanctions for noncompliance with discovery orders was
nonappealable on its own, but was properly before that
court for review since the final judgment in the case had
been entered. [¶] The purported appeal before us
also seeks review of an order imposing sanctions for refusal
to make discovery. Plaintiff had but did not take the
opportunity to seek review of the order by timely petition for
extraordinary writ. However, he may seek review after final
judgment has been entered in the cause."The above
cases all deal with sanctions imposed on a party. While we
have found no cases that directly address the same issue
with reference to discovery sanctions imposed on counsel
currently representing a party, we note several cases which
have touched on the subject. In In re Marriage of Fuller
(1985) 163 Cal. App. 3d 1070, 1072, footnote 1 [210
Cal.Rptr. 73], the trial court ordered $2,500 sanctions
against a party and her attorney for failure to appear at a
hearing, failure to render a proper accounting, failure to
adequately and properly respond to a request for
production of documents and failure to pay over rents and
profits on real property as required by a prior order. The
attorney was shortly thereafter relieved as counsel. At least
some of the failures cited related to discovery matters. The
court held that the order imposing sanctions was
appealable. In In re Marriage of Lemen (1980) 113 Cal.
App. 3d 769 [170 Cal.Rptr. 642], discovery sanctions were
imposed on a nonparty witness and his attorney. In
handling the appeal, the court did not address the issue of
appealability. In any event, those cases are distinguishable.
Even though relief by way of writ is available, such an order
against a party's former attorney or an attorney
representing a nonparty witness can arguably be a final
order as to that person. Such reasoning, however, does not
apply to counsel currently representing a party in a case
that is far from over, trial having been set April 3,
1989.Three cases lend support by dicta to a holding that
discovery sanctions levied against counsel are
nonappealable. The court in Corns v. Miller (1986) 181 Cal.
App. 3d 195 [226 Cal.Rptr. 247], noted in footnote 1, at
pages 197-198, the Fuller and Lemen cases and stated
that it considered even those orders nonappealable. In
Huenergardt v. Huenergardt (1963) 218 Cal. App. 2d 455
[32 Cal.Rptr. 714], the court stated at page 459, "As
above stated, the appeal herein was by the plaintiff. The
question regarding the sanction imposed against plaintiff's
attorney is not properly before this court upon plaintiff's
appeal. It would seem that a proper procedure for [207 Cal.
App. 3d 1382] reviewing such question would be by a
petition for a prerogative writ." The court cited Carlson
v. Superior Court (1961) 56 Cal. 2d 431 [15 Cal.Rptr. 132,
364 P.2d 308], for the proposition that mandamus is a
proper procedure for attacking such an order. In Thrasher
v. Thrasher (1972) 27 Cal. App. 3d 23, 29-30 [103
Cal.Rptr. 618, 56 A.L.R.3d 204], sanctions had been
imposed on appellants and their counsel. Citing Lund v.
Superior Court (1964) 61 Cal. 2d 698, 708-709 [39
Cal.Rptr. 891, 394 P.2d 707], the court stated, "[i]t is
doubtful that the order imposing sanctions is separately
appealable," and then proceeded to treat counsel's
appeal as a writ and affirm the imposition of
sanctions.Appellant cites several cases in support of his
belief that the order is appealable. Of those cases, four
involved nondiscovery sanctions imposed on counsel
pursuant to section 128.5. (Mungo v. UTA French Airlines
(1985) 166 Cal. App. 3d 327, 332-333 [212 Cal.Rptr. 369];
M.E. Gray Co. v. Gray (1985) 163 Cal. App. 3d 1025, 1031
[210 Cal.Rptr. 285]; In re Marriage of Gumabao (1984) 150
Cal. App. 3d 572, 573-574 [198 Cal.Rptr. 90]; Ellis v.
Roshei Corp. (1983) 143 Cal. App. 3d 642, 645 [192
Cal.Rptr. 57].) In one case sanctions were imposed under
the court's nonstatutory inherent power for attorney
misconduct. (Bauguess v. Paine (1978) 22 Cal. 3d 626 [150
Cal.Rptr. 461, 586 P.2d 942].) Discovery sanctions imposed
on an attorney were held appealable in Chong v. Fremont
Indemnity Co. (1988) 202 Cal. App. 3d 1097, 1102 [249
Cal.Rptr. 264], but were under section 128.5. No case has
been cited declaring appealable discovery sanctions
pursuant to section 2025 imposed on an attorney currently
representing a party.[2] We hold that an order imposing
sanctions under section 2025 for failure to make discovery
on an attorney currently representing a party in a pending
matter is not a separately appealable final order. A contrary
holding would defeat the purpose of section 904.1 and
encourage multiple appeals in a single action. Discovery
orders in a single lawsuit can be numerous and ongoing
and provide limitless fodder for interim appeals. We feel the
"better view" of Lund v. Superior Court, supra,
61 Cal. 2d 698, serves the intent of section 904.1. We do
not determine whether the same conclusion is to be
reached with reference to a like order directed to a party's
former attorney or to a nonparty's attorney.The following
language from the recent case of Lossing v. Superior Court
(1989) 207 Cal. App. 3d 635, 641 [255 Cal.Rptr. 18],
eloquently describes this court's view of the conduct by
counsel in this case and explains why we decline appellant's
invitation to treat the matter as a writ: "We conclude
by reminding members of the Bar that their responsibilities
as officers of the court include professional courtesy to the
court and to opposing counsel. All too often today we see
signs that the practice of law is becoming more [207 Cal.
App. 3d 1383] like a business and less like a profession.
We decry any such change, but the profession itself must
chart its own course. The legal profession has already
suffered a loss of stature and of public respect. This is
more easily understood when the public perspective of the
profession is shaped by cases such as this where lawyers
await the slightest provocation to turn upon each other.
Lawyers and judges should work to improve and enhance
the rule of law, not allow a return to the law of the
jungle."DispositionThe appeal is dismissed.Spencer,
P. J., and Devich, J., concurred.FN 1. All statutory
references are to the Code of Civil Procedure, unless
otherwise indicated.
Sanctions against attorney for
suspending deposition
(1989)207 Cal. App. 3d 1377 [255 Cal. Rptr. 532][No.
B033490.
Court of Appeals of California, Second Appellate District,
Division One.
February 21, 1989
C. M. SLEMAKER et al., Plaintiffs and Respondents,
v.
JOHN WOOLLEY et al., Defendants and Appellants
(Opinion by Ortega, J., with Spencer, P. J., and Devich, J.,
concurring.)
COUNSEL
Sanders, Barnet, Jacobson, Goldman & Mosk, Richard
M. Mosk, Bernard P. Simons, Scott L. Zimmerman, Burkley,
Moore, Greenberg & Lyman and Walter R. Burkley, Jr.,
for Defendants and Appellants.
Spierer, Woodward, Denis & Furstman and Stanley T.
Denis, Jr., for Plaintiffs and Respondents.
OPINION
Introduction
This is a purported appeal from an order of the superior
court imposing sanctions on counsel for improperly
suspending the deposition of a witness. We hold that the
order is not separately appealable and dismiss the
appeal.Factual and Procedural HistoryOn January 15,
1988, plaintiffs C. M. Slemaker and Roberta Slemaker
served notice by telecopy to defendants' counsel of
depositions of two witnesses. The depositions were both
noticed for January 25, 1988.
Defense counsel claimed that since Monday January 18
was a holiday (Martin Luther King, Jr.'s, birthday) he was
unaware of the notice until January 19.
Mr. Zimmerman, representing defendants John Woolley and
Joan Woolley, attempted to reschedule the depositions,
claiming that one of the defendants wanted to be present
but couldn't do so on such short notice. Mr. Denis, counsel
for plaintiffs, refused to reschedule the depositions but later
[207 Cal. App. 3d 1379] cancelled the first of the two. Mr.
Zimmerman appeared for the second one and immediately
suspended it invoking Code of Civil Procedure section
2025, subdivision (n). fn. 1 At this point the situation was
overtaken by schoolyard protocol. Mr. Denis claims that Mr.
Zimmerman threatened the court reporter and got her so
upset she lost her train of thought. Mr. Zimmerman claims
Mr. Denis accosted him out in the hallway and physically
shoved him around causing him to leave without an exhibit
he was waiting for. Not willing to resolve the discovery
dispute between themselves like professionals, they each
ran to an already overburdened superior court for
relief.After patiently listening to both counsel carry on, the
trial court imposed $1,000 sanctions on Mr. Zimmerman's
firm. And, predictably, here came the appeal. While both
counsel have expended prodigious energy in preparing
their briefs, neither addressed the threshold question of
whether the order is appealable until invited to do so by this
court.ContentionsAppellant contends: section 2025,
subdivision (n) allows a party to suspend a deposition that
is being taken in bad faith and seek a protective order; the
notice of the deposition was defective and attempting to
take the deposition nonetheless is bad faith; and even if
that position is incorrect, sanctions should not have been
imposed because counsel was acting in good faith under
color of a statute.DiscussionIt is first necessary to
determine whether the sanction herein was imposed under
section 128.5 or section 2025. The former is appealable
(Rabbit v. Vincente (1987) 195 Cal. App. 3d 170, 173 [240
Cal.Rptr. 524]), while, as we shall explain below, the latter is
not. The minute order issued by the court did not specify
which section it relied upon. In its spoken comments, the
court did not refer to a specific section. However, the
reporter's transcript reveals that 2025 was the only section
mentioned during the course of the hearing. The moving
papers of counsel made repeated references to sections
128.5, 2023, and numerous subdivisions of 2025 including
subdivision (n). Section 2025, subdivision (n) allows the
suspension of an oral deposition under certain
circumstances and the imposition of sanctions against
counsel for improper use of the provision and is clearly
applicable to the instant matter.Section 128.5, subdivision
(c) specifically requires that an order "shall be in
writing and shall recite in detail the conduct or
circumstances justifying [207 Cal. App. 3d 1380] the
order."The only order presented to us is the minute
order of February 18, 1988. It does not contain any of the
recitations required by section 128.5. [1] "'A judgment
or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.'" (Denham v. Superior Court
(1970) 2 Cal. 3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193],
italics omitted.) As the court did not comply with the
requirements of section 128.5, subdivision (c), we can
conclude only that the court's order imposing sanctions was
pursuant to section 2025, subdivision (n) for failure to make
discovery.In Kibrej v. Fisher (1983) 148 Cal. App. 3d 1113
[196 Cal.Rptr. 454], a party appealed an order imposing
sanctions for his failure to attend a deposition. The Court of
Appeal dismissed the appeal stating, at pages
1115-1116:"A fundamental principle of appellate
review is the rule that an appeal may be taken only from a
final judgment in an action. This rule is codified in section
904.1 of the Code of Civil Procedure. The theory behind
the rule is that piecemeal disposition and multiple appeals
in a single action are oppressive and costly, and review of
intermediate rulings should await the final disposition of the
case. [Citation.]A recognized exception to this rule is the
'collateral order doctrine,' which permits an appeal from a
final determination of a collateral matter which requires a
party to immediately pay money or perform some other act.
This doctrine was utilized in Wisniewski v. Clary (1975) 46
Cal. App. 3d 499, 502 [120 Cal.Rptr. 176], to allow an
appeal from an order requiring payment of money as a
sanction for failure to attend a mandatory settlement
conference. wisniewski was cited by the California Supreme
Court in Baug[u]ess v. Paine (1978) 22 Cal. 3d 626, 634
[150 Cal.Rptr. 461, 586 P.2d 942], footnote 3, in which an
order imposing sanctions for attorney misconduct was held
appealable as a final order on a collateral matter directing
the payment of money. [¶]However, the Supreme
Court expressed a different view as to the appealability of
orders levying sanctions for failure to make discovery. In
deciding that an extraordinary writ was a proper remedy to
review such an order, the court stated: 'The better view is
that an order made for the purposes of furthering discovery
proceedings, or granting sanctions for refusal to make
discovery, is not appealable [citations].' (Lund v. Superior
Court (1964) 61 Cal. 2d 698, 709 [39 Cal.Rptr. 891, 394
P.2d 707].) Although the court did not find it necessary to
decide the question of the order's appealability, their 'better
view' was followed in Munson v. Singer (1965) 238 Cal.
App. 2d 697 [48 Cal.Rptr. 167], where an appeal was
dismissed expressly because an order imposing sanctions
for failure to appear at depositions was not appealable on
its own.An appeal from a minute order imposing sanctions
for refusal to answer questions during depositions was
dismissed on the same basis in Freidberg v. Freidberg
(1970) 9 Cal. App. 3d 754, 764 [88 Cal.Rptr. 451]. [¶]
[207 Cal. App. 3d 1381] The appealable orders imposing
sanctions in the Baug[u]ess and Wisniewski cases, supra,
are distinguished from the nonappealable discovery-related
sanctions which follow the Lund view, supra, 61 Cal. 2d
698, in the more recent case of People ex rel. Gow v.
Mitchell Brothers' Santa Ana Theater (1981) 114 Cal. App.
3d 923, 937 [171 Cal.Rptr. 85], footnote 15 (revd. and
remanded on other grounds (1981) 454 U.S. 90 [70
L.Ed.2d 262, 102 S.Ct. 172]).Thus, the order levying
sanctions for noncompliance with discovery orders was
nonappealable on its own, but was properly before that
court for review since the final judgment in the case had
been entered. [¶] The purported appeal before us
also seeks review of an order imposing sanctions for refusal
to make discovery. Plaintiff had but did not take the
opportunity to seek review of the order by timely petition for
extraordinary writ. However, he may seek review after final
judgment has been entered in the cause."The above
cases all deal with sanctions imposed on a party. While we
have found no cases that directly address the same issue
with reference to discovery sanctions imposed on counsel
currently representing a party, we note several cases which
have touched on the subject. In In re Marriage of Fuller
(1985) 163 Cal. App. 3d 1070, 1072, footnote 1 [210
Cal.Rptr. 73], the trial court ordered $2,500 sanctions
against a party and her attorney for failure to appear at a
hearing, failure to render a proper accounting, failure to
adequately and properly respond to a request for
production of documents and failure to pay over rents and
profits on real property as required by a prior order. The
attorney was shortly thereafter relieved as counsel. At least
some of the failures cited related to discovery matters. The
court held that the order imposing sanctions was
appealable. In In re Marriage of Lemen (1980) 113 Cal.
App. 3d 769 [170 Cal.Rptr. 642], discovery sanctions were
imposed on a nonparty witness and his attorney. In
handling the appeal, the court did not address the issue of
appealability. In any event, those cases are distinguishable.
Even though relief by way of writ is available, such an order
against a party's former attorney or an attorney
representing a nonparty witness can arguably be a final
order as to that person. Such reasoning, however, does not
apply to counsel currently representing a party in a case
that is far from over, trial having been set April 3,
1989.Three cases lend support by dicta to a holding that
discovery sanctions levied against counsel are
nonappealable. The court in Corns v. Miller (1986) 181 Cal.
App. 3d 195 [226 Cal.Rptr. 247], noted in footnote 1, at
pages 197-198, the Fuller and Lemen cases and stated
that it considered even those orders nonappealable. In
Huenergardt v. Huenergardt (1963) 218 Cal. App. 2d 455
[32 Cal.Rptr. 714], the court stated at page 459, "As
above stated, the appeal herein was by the plaintiff. The
question regarding the sanction imposed against plaintiff's
attorney is not properly before this court upon plaintiff's
appeal. It would seem that a proper procedure for [207 Cal.
App. 3d 1382] reviewing such question would be by a
petition for a prerogative writ." The court cited Carlson
v. Superior Court (1961) 56 Cal. 2d 431 [15 Cal.Rptr. 132,
364 P.2d 308], for the proposition that mandamus is a
proper procedure for attacking such an order. In Thrasher
v. Thrasher (1972) 27 Cal. App. 3d 23, 29-30 [103
Cal.Rptr. 618, 56 A.L.R.3d 204], sanctions had been
imposed on appellants and their counsel. Citing Lund v.
Superior Court (1964) 61 Cal. 2d 698, 708-709 [39
Cal.Rptr. 891, 394 P.2d 707], the court stated, "[i]t is
doubtful that the order imposing sanctions is separately
appealable," and then proceeded to treat counsel's
appeal as a writ and affirm the imposition of
sanctions.Appellant cites several cases in support of his
belief that the order is appealable. Of those cases, four
involved nondiscovery sanctions imposed on counsel
pursuant to section 128.5. (Mungo v. UTA French Airlines
(1985) 166 Cal. App. 3d 327, 332-333 [212 Cal.Rptr. 369];
M.E. Gray Co. v. Gray (1985) 163 Cal. App. 3d 1025, 1031
[210 Cal.Rptr. 285]; In re Marriage of Gumabao (1984) 150
Cal. App. 3d 572, 573-574 [198 Cal.Rptr. 90]; Ellis v.
Roshei Corp. (1983) 143 Cal. App. 3d 642, 645 [192
Cal.Rptr. 57].) In one case sanctions were imposed under
the court's nonstatutory inherent power for attorney
misconduct. (Bauguess v. Paine (1978) 22 Cal. 3d 626 [150
Cal.Rptr. 461, 586 P.2d 942].) Discovery sanctions imposed
on an attorney were held appealable in Chong v. Fremont
Indemnity Co. (1988) 202 Cal. App. 3d 1097, 1102 [249
Cal.Rptr. 264], but were under section 128.5. No case has
been cited declaring appealable discovery sanctions
pursuant to section 2025 imposed on an attorney currently
representing a party.[2] We hold that an order imposing
sanctions under section 2025 for failure to make discovery
on an attorney currently representing a party in a pending
matter is not a separately appealable final order. A contrary
holding would defeat the purpose of section 904.1 and
encourage multiple appeals in a single action. Discovery
orders in a single lawsuit can be numerous and ongoing
and provide limitless fodder for interim appeals. We feel the
"better view" of Lund v. Superior Court, supra,
61 Cal. 2d 698, serves the intent of section 904.1. We do
not determine whether the same conclusion is to be
reached with reference to a like order directed to a party's
former attorney or to a nonparty's attorney.The following
language from the recent case of Lossing v. Superior Court
(1989) 207 Cal. App. 3d 635, 641 [255 Cal.Rptr. 18],
eloquently describes this court's view of the conduct by
counsel in this case and explains why we decline appellant's
invitation to treat the matter as a writ: "We conclude
by reminding members of the Bar that their responsibilities
as officers of the court include professional courtesy to the
court and to opposing counsel. All too often today we see
signs that the practice of law is becoming more [207 Cal.
App. 3d 1383] like a business and less like a profession.
We decry any such change, but the profession itself must
chart its own course. The legal profession has already
suffered a loss of stature and of public respect. This is
more easily understood when the public perspective of the
profession is shaped by cases such as this where lawyers
await the slightest provocation to turn upon each other.
Lawyers and judges should work to improve and enhance
the rule of law, not allow a return to the law of the
jungle."DispositionThe appeal is dismissed.Spencer,
P. J., and Devich, J., concurred.FN 1. All statutory
references are to the Code of Civil Procedure, unless
otherwise indicated.
Sanctions: Lower Court
Sanctions Under $5,000 Not
Immediately Appealable
Appeal of Two Sanctions
Orders Are Dismissed.
Warkentin v. Countrywide Home
Loans, Case No. F059782 (5th
Dist. Apr. 29, 2011) (unpublished)
is a situation where the appellate
court dismissed two appeals of
sanctions orders, one of $2,012 for
a plaintiff reasserting allegations
that were earlier stricken from a
pleading and the other amounting
to $2,331.25 for discovery
response “gamesmanship.” The
reason for the dismissals? Simple:
Code of Civil Procedure section
904.1(a)(11)-(12), which provides
that an order granting monetary
sanctions is not an appealable
order unless the amount is over
$5,000. Beyond that, Justice Kane
on behalf of a 3-0 panel of the Fifth
District observed that sanctions
are mandatory for discovery
“gamesmanship,”
acknowledging that they “are
routinely granted in such
circumstances.”
This bill is pending
in the appellate
http://www.leginfo.ca.gov/pub/11-
12/bill/asm/ab_2001-
2050/ab_2043_bill_20120223_introduced.html
(b) Sanction orders
or judgments of five
thousand dollars
($5,000)
or less against a
party or an attorney
for a party may be
reviewed
on an appeal by that
party after entry of
final judgment in the
main
action, or, at the
discretion of the
court of appeal, may
be reviewed
upon petition for an
extraordinary writ.
Sanctions Under $5,000 Not
Immediately Appealable
Appeal of Two Sanctions
Orders Are Dismissed.
Warkentin v. Countrywide Home
Loans, Case No. F059782 (5th
Dist. Apr. 29, 2011) (unpublished)
is a situation where the appellate
court dismissed two appeals of
sanctions orders, one of $2,012 for
a plaintiff reasserting allegations
that were earlier stricken from a
pleading and the other amounting
to $2,331.25 for discovery
response “gamesmanship.” The
reason for the dismissals? Simple:
Code of Civil Procedure section
904.1(a)(11)-(12), which provides
that an order granting monetary
sanctions is not an appealable
order unless the amount is over
$5,000. Beyond that, Justice Kane
on behalf of a 3-0 panel of the Fifth
District observed that sanctions
are mandatory for discovery
“gamesmanship,”
acknowledging that they “are
routinely granted in such
circumstances.”
This bill is pending
in the appellate
http://www.leginfo.ca.gov/pub/11-
12/bill/asm/ab_2001-
2050/ab_2043_bill_20120223_introduced.html
(b) Sanction orders
or judgments of five
thousand dollars
($5,000)
or less against a
party or an attorney
for a party may be
reviewed
on an appeal by that
party after entry of
final judgment in the
main
action, or, at the
discretion of the
court of appeal, may
be reviewed
upon petition for an
extraordinary writ.