Morelli, In re

• Decision Date: 30 September 1970
• Docket Number: Cr. 17934
• Citation: 91 Cal.Rptr. 72,11 Cal.App.3d 819
• Court: California Court of Appeals Court of Appeals
• Parties: Application of James JESS, Petitioner, on Behalf of, Dino A. Morelli.

Page 72

91 Cal.Rptr. 72

11 Cal.App.3d 819

Application of James JESS, Petitioner, on Behalf of, Dino A. Morelli.

Cr. 17934.

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

Sept. 30, 1970.

[11 Cal.App.3d 826] James Jess, Los Angeles, for petitioner.

John D. Maharg, County Counsel, Douglas C. Miller, and Harold S. Vites, Deputy County Counsels, for respondent.

REPPY, Associate Justice.

On February 17, 1970, after a hearing in the superior court, processed under an order to show cause, Dino A. Morelli (Morelli), an intended non-party expert witness in a personal injury action, was found guilty of contempt of court for failing to appear at a deposition proceeding on October 5, 1967, to which the judge hearing the matter found he had been validly subpoenaed. Morelli was sentenced to five days in jail and to pay a fine of $500. His attorney, James Jess (petitioner), on his behalf, petitioned this court for a writ of habeas corpus. We issued an order to show cause and stayed confinement by supersedeas. The superior court (respondent) filed a return to the order to show cause and an answer to the petition. Petitioner filed a traverse. The matter was duly argued and submitted.

Much of the delay between the nonappearance of Morelli at the deposition proceeding and the final adjudication of contempt is attributable to two writ proceedings in the appellate court: Morelli v. Superior Court, 262 Cal.App.2d 262, 68 Cal.Rptr. 572, ¹ and Morelli v. Superior Court, 1 Cal.3d 328, 82 Cal.Rptr. 375, 461 P.2d 655. ²

The contentions of petitioner raised by the habeas corpus proceeding are:

1. That the papers supportive of the superior court's order to show cause, which formed the complaint charging Morelli with contempt did not give the superior court jurisdiction to act in that (a) the materials supportive of the original order to show cause were not in one document, but in several 'vague and ambiguous' ones; (b) the so-called 'nonappearance affidavit' of Mavis R. Del Vecchio, the notary and shorthand reporter of the deposition proceeding (the reporter) is not an affidavit but is a certificate and simply recites the unverified (unsworn) statement of Downey A. Grosenbaugh, one of the attorneys for plaintiffs in the underlying action (plaintiffs' attorney), concerning the nonappearance of Morelli; and (c) the papers failed to allege Morelli's residence so as to indicate that he had been subject to subpoena at the time of service (see § 1989, Code Civ.Proc.).

2. That the superior court had no jurisdiction to proceed with the contempt hearing because personal service of the superior court's order to show cause issued June 25, 1968, and its supporting papers had not been made on Morelli, service having been made by mail only on the attorney who allegedly had appeared specially for Morelli on January 19, 1968, in response to bail posted by Morelli in connection with the original order to show cause.

3. That personal service of the superior court's order to show cause in re contempt for disobedience of deposition subpoena, effected in the courtroom on February 6, 1970, was invalid because brought about by subterfuge and by an arrest of Morelli made 4. That the superior court improperly continued a motion for continuance, made by Morelli so that he could move for the trial judge's disqualification to hear the contempt matter, over to the date and time set for the contempt hearing, putting Morelli in the position of not knowing whether he would go to trial on the contempt issue or have a continuance so that his motion for disqualification for cause could be heard by another judge.

contrary to the ruling in Morelli v. Superior Court, Supra, 262 Cal.App.2d 262, 68 Cal.Rptr. 572, because the baliff did not serve all of the supporting papers.

5. That the superior court enabled itself to deny Morelli's motion for continuance by improperly striking the disqualification for cause documents on the ground that they were conclusional and sham.

6. That, in effect, Morelli did not have a fair trial because the judge was biased and prejudiced against Morelli. ³

7. That the superior court deprived Morelli of the right of having the contempt issue heard by a jury.

DISCUSSION

1. Inadequacy of Papers Forming Contempt Complaint. The most provocative point in this respect relates to the showing in the supporting papers as to the factor of residence within the subpoena jurisdiction. We will cover other objections before taking this up.

a. There is authority that support for an order to show cause in re contempt may be provided by a combination of documents. (In re Roth, 3 Cal.App.2d 226, 236, 39 P.2d 490; see also 12 Cal.Jur.2d, Contempt, § 60, p. 83.)

b. The reporter who was to officiate at the deposition proceeding executed a document which was one of the papers submitted to the superior court in the course of securing the first order to show cause in November 1967. In was denominated, 'AFFIDAVIT RE NON-APPEARANCE.' However, it actually was not an affidavit. It commenced, 'I * * * do hereby certify:'; and it concluded, 'IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal of office this 12th day of October, 1967.' There follows the signature of the reporter and the impression of her official seal as a notary public in Los Angeles County. In the body, the reporter recites that she appeared at the proper place and time for the purpose of administering the oath to and reporting the deposition of Morelli; that also present were plaintiffs' attorney and Donald E. Wood of the firm of attorneys for defendants. She does not list Morelli as being present. She then states that, 'The following proceedings were had:'. There then follows what constitutes the transcription by the reporter of the statement of plaintiffs' attorney made into the deposition record. There is no indication by the reporter that plaintiffs' attorney was sworn. The attorney, in his statement, asks that the record show that the deposition had been noticed, that a subpoena duces tecum directed to Morelli had been issued by the court and had been served on him, that Morelli had demanded fees and been paid $5, that during a suspension by him (plaintiffs' attorney) of his statement into the deposition record he had made an unsuccessful effort to reach Morelli at California Institute of Technology, that it was 15 minutes past the time set for the deposition, that it appeared that Morelli was not going to attend, and that he was asking the reporter to prepare the transcript and file it with the superior court.

Plaintiffs' attorney executed a declaration under penalty of perjury which was also submitted to the superior court in support of the order to show cause. In it he did not deal with the nonappearance of Morelli for the deposition, but set out circumstances indicative of the fact that Morelli had information relevant to the case.

Code of Civil Procedure, section 1991, states, in part, that, 'when (a) subpena * * * requires the attendance of the witness before an officer * * * out of court, it is the duty of such officer * * * to report * * * disobedience (to such subpena) * * * to the court issuing the subpena.' We are satisfied that the reporter's certification to the superior court under her official seal, which contained her own statement as to who was present, not including Morelli, and which contained a transcription of plaintiffs' attorney's statement into the deposition record that it appeared that Morelli was not going to attend, was such a report and met the requirements of section 1991.

Code of Civil Procedure, section 1211, reads in part as follows: 'When the contempt is not committed in the immediate view and presence of the court * * * an affidavit shall be presented to the court * * * of the facts constituting the contempt, or a statement of the facts by the referees * * * or other judicial officers.' We consider that the reporter, who was going to officiate at the deposition proceeding by swearing the witness and taking his testimony in shorthand, was a judicial officer; and we interpret section 1211 as authorizing the circumstances constituting the contempt to be contained in 'a statement of the facts' by such a judicial officer as an alternative to an affidavit of the facts made by someone not such a judicial officer. Thus, the portion of the supporting papers indicating that Morelli had been served with the subpoena duces tecum, demanded and received witness fees, and failed to appear at the required time and place was supplied by the certificate of the reporter. Any elements of the contempt which were derived from the declaration of plaintiffs' attorney met the requirements of section 1211, Code of Civil Procedure, because his declaration was given under penalty of perjury, which by Code of Civil Procedure, section 2015.5 is a satisfactory substitute for an affidavit. Moreover, in connection with the material in the reporter's certificate set out in the form of a transcription of plaintiffs' attorney's statement for the deposition record, it is clear that he was making such a statement as an officer of the court by reason of his status as an attorney.

c. With respect to the matter of residence, peitioner cites Hall v. Superior Court (1932) 124 Cal.App. 603, 12 P.2d 1057. However, in Hall, there is nothing to indicate that there was any reference in the affidavits supportive of the order to show cause re contempt for disobedience of subpoena to circumstances indicative of residence status putting contemnor within subpoena jurisdiction. The opinion simply says that the failure to allege that Hall was a resident of Riverside County or of a place within the then mileage limitation was fatal. The situation is different in the instant case wherein a combination of several evidential factors before the superior court makes up a prima facie showing of residence of Morelli in Los Angeles County.

What is a prima facie showing...