Brady v. Superior Court In and For San Mateo County

• Decision Date: 07 February 1962
• Citation: 200 Cal.App.2d 69,19 Cal.Rptr. 242
• Court: California Court of Appeals Court of Appeals
• Parties: Frank W. BRADY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN MATEO, and the Hon. Louis B. DeMatteis, as Judge thereof, Respondents, Town of Atherton, a Municipal Corporation, Real Party in Interest. Civ. 20230.

Page 242

19 Cal.Rptr. 242

200 Cal.App.2d 69

Frank W. BRADY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN MATEO, and the Hon. Louis B. DeMatteis, as Judge thereof, Respondents Town of Atherton, a Municipal Corporation, Real Party in Interest.

Civ. 20230.

District Court of Appeal, First District, Division 1, California.

Feb. 7, 1962.

Rehearing Denied Feb. 23, 1962.

Hearing Denied April 3, 1962.

George Olshausen, Frank J. Perry, San Francisco, for petitioner.

Winston Churchill Black, San Francisco, for Town of Atherton.

TOBRINER, Justice.

We must determine here whether the trial court exceeded its jurisdiction in punishing petitioner for contempt. The court based its order on the ground that the occupancy of petitioner's home by his son and a rent-paying friend destroyed the home's status as a 'single family dwelling' under the zoning ordinance of Atherton, California. As we shall point out, we do not believe the bare and undefined reference of the ordinance to such a dwelling sustained the court's elaborate definition of it or the court's conviction of contempt.

We describe the factual background which led to the court's orders. Petitioner and his wife own a certain piece of property in Atherton. The improvements consist of the main two-story house in the center of the lot, a second house nearby, a cabana, a swimming pool, a tennis court, a smaller building with a bedroom in it, a hothouse, and a freezer house. Petitioner and his wife live in San Francisco, visiting or using the Atherton property only on weekends. When, in May 1959, the petitioner was renting the premises to eight tenants, four in the main dwelling and four in accessory dwellings, none of whom were related to the petitioner, Atherton filed a complaint for an injunction alleging that the premises were being occupied in violation of its ordinance 146, an ordinance commonly known and referred to as 'Zoning Regulations.'

Atherton claimed that the premises were being used other than as a single family dwelling, the only use permitted under the zoning regulations. The regulations provided as follows: "3-1. In one family residential districts 'A,' 'B' and 'C' no lot or parcel of land, building, structure, or improvement shall be used, and no building, structure or improvement shall be hereafter erected, constructed, structurally altered or enlarged, except for a single family dwelling and accessory buildings thereto * * *." The ordinance defined a one-family dwelling as follows: "22-5. Dwelling, One-Family: A detached building designed for or occupied exclusively by one family."

The court rendered a judgmnet permanently enjoining the petitioner from using the premises for any use other than as a single family dwelling. The findings of fact state that at the time of the commencement of the action the premises were being occupied by eight tenants: four in the main dwelling and four in the cabin structure, none of whom were related to the petitioner. The court held that such occupancy violated the designation of 'single family,' which it defined as follows: 'That the normal use and construction of the phrase 'single family' as used in the Zoning Ordinances means a unit that has a social status, a head who has a right, at least in a limited way, to direct and control those gathered into the household, a moral or legal obligation of a head to support the other members and a state of at least partial dependence by the other members for this support.' Subsequently petitioner appealed from the judgment, but due to his failure to file a timely notice of appeal, the appeal was dismissed.

The order to show cause for contempt which instigates the instant matter resulted from the fact that subsequent to such judgment the main building was occupied by two persons, Frank Brady, Jr., the son of petitioner, and Guillermo E. Quijano, Jr., a friend, both graduate students at Stanford University. The students did their own cooking on the premises. Quijano paid petitioner compensation in the amount of $20 per month for his occupancy. The son paid nothing. The occupants further paid the costs of the utilities.

The court found petitioner in contempt of court for wilful disobedience of the permanent injunction in permitting two individuals, neither members of the same single family nor related to each other in any way, jointly to use and occupy the premises. Holding the use of the premises to be other than as a single family dwelling, as the court defined the term, the court ordered that petitioner be fined $250. While the court distinguished the use of the lot by Quijano and Brady, Jr., from the original leasing of the premises to eight individual tenants, the court found the occupancy of the premises by the students not that of a single family. The court further held that Brady, Jr., alone or in conjunction with any member of the Brady family could have occupied the premises without violating the ordinance.

Our sole province is to pass upon the validity of the court's ruling that petitioner committed a contempt because he permitted the occupancy of the premises by the two students. We are not required here to review the original judgment holding that the leasing of the premises to the eight individual tenants violated the ordinance.

Our present probe of the court's jurisdiction to punish for contempt must lead inexorably to an examination of the jurisdiction of the court to apply its injunction to the occupancy of the two students. The stream cannot rise above its source; the jurisdiction to hold in contempt cannot be greater than the jurisdiction to command observance of the ordinance because of a violation. As we shall point out, we do not think the ordinance can be stretched to apply to the challenged occupancy. Whatever the meaning of 'single family dwelling,' it cannot embrace the trial court's requirement that there be a 'head' who would 'direct and control' the 'household,' who had a 'moral or legal obligation' at least partially to support the other members, so that the failure of the occupants to comply with that definition generated a contempt proceeding.

Petitioner could properly invoke certiorari to test the court's order of contempt if the court exceeded its jurisdiction. Since the order of contempt is not appealable, it may under such circumstances, be reviewed on certiorari. (Code Civ.Proc. § 1222; Tripp v. Tripp (1922) 190 Cal. 201, 202, 211 P. 225; Nutter v. Superior Court (1960) 183 Cal.App.2d 72, 73, 6 Cal.Rptr. 404; Auto Equity Sales Inc., v. Superior Court (1962) 57 A.C. 244, 246, 17 CalRptr. 369, 366 P.2d 641.) ¹

A series of California cases hold that the violation of an order which exceeds the court's jurisdiction cannot produce a judgment of contempt. Mr. Justice Wood in Oil Workers Intl. Union v. Superior Court (1951) 103 Cal.App.2d 512, 230 P.2d 71 ruled: 'If it be determined that in the rendition of said judgment the trial court acted within its jurisdiction, then the inquiry ends, and the only order the reviewing court is authorized to make is one affirming the proceedings of the trial court. On the other hand, should it appear from the record as certified to us that the court either had no jurisdiction to pronounce said judgment, or exceeded its jurisdiction in doing so, then the proceedings should be annulled.' (P. 526, 230 P.2d p. 79.) (See also: In re De Silva (1948) 33 Cal.2d 76, 80, 199 P.2d 6; Harlan v. Superior Court (1949) 94 Cal.App.2d 902, 905, 211 P.2d 942; Silvagni v. Superior Court (1958) 157 Cal.App.2d 287, 291, 321 P.2d 15; McLaughlin v. Superior Court (1954) 128 Cal.App.2d 62, 65, 274 P.2d 745.) As Witkin states: the 'view, long settled in California is that a void order is never binding, and that its violation cannot constitute contempt. A party affected by an order may, and usually will, seek some orderly judicial means of setting it aside; but he may also ignore or disobey it at his peril. If he guesses wrong, he may be punished; if he guesses right, the final judicial determination that the order was without or in excess of jurisdiction is necessarily a determination that he committed no punishable wrong in violating it.' (1 Witkin, Calif.Proc., § 155, pp. 421, 422.)

Turning then to the question of jurisdiction, we note that that concept, which originally attached only to the cause and to the parties, has in recent cases been extended. Witkin points out, 'It is now recognized that the term 'jurisdiction' does not have a single, fixed meaning, but has different meanings in different situations. The practical approach to the subject, therefore, is by classification rather than definition; i. e., the scope and meaning of the term will best be discovered by an examination of the situations in which problems of jurisdiction are involved.' (1 Witkin, Calif.Proc., § 1, p. 273.) The Supreme Court in the landmark case of Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715 amplifies this approach: 'Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of state decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.' (p. 291, 109 P.2d 948.)

Two cases, Fortenbury v. Superior Court (1940) 16 Cal.2d 405, 106 P.2d 411, and Kreling v. Superior Court (1941) 18 Cal.2d 884, 118 P.2d 470, in particular, tell us that we must examine the trial court's jurisdiction to issue the injunction which produced the violation and the consequent contempt proceedings. Thus, in Fortenbury petitioner 'was held guilty of contempt of court for violating a temporary restraining order prohibiting picketing in connection with a labor dispute.' (P. 406, 106 P.2d p. 412.)...