Morelli v. Superior Court for Los Angeles County

• Decision Date: 17 May 1968
• Citation: 262 Cal.App.2d 262,68 Cal.Rptr. 572
• Court: California Court of Appeals Court of Appeals
• Parties: Dino A. MORELLI, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Charles BERRY et al., Real Parties in Interest. Civ. 32691.

Page 572

68 Cal.Rptr. 572

262 Cal.App.2d 262

Dino A. MORELLI, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Charles BERRY et al., Real Parties in Interest.

Civ. 32691.

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

May 17, 1968.

Korman Dorsey Ellis, Los Angeles, for petitioner.

No appearance for respondent.

Meserve, Mumper & Hughes, Christopher Rolin and Thomas P. Phillips III, Los Angeles, for real parties in interest.

McCOY, Associate Justice ^*

This is a proceeding for a writ of prohibition commanding the Superior Court for Los Angeles County to desist from enforcing a bench warrant and from taking any further proceedings to adjudge petitioner guilty of contempt of court. The writ is sought on the ground that the respondent court lacks jurisdiction.

The case before us arises out of an action pending in the respondent court entitled Berry v. Mobile Vacuum Service, et al., in which plaintiffs seek damages for the wrongful death of their deceased child whose death was allegedly caused by the negligence of defendants in parking a motor vehicle and leaving it unattended. In April 1967 the defendant House of Vacuums of Long Beach, sued as Mobile Vacuum Service (referred to herein as the defendant), stated in answer to an interrogatory served on it by plaintiff that petitioner, D. A. Morelli, had been employed by it as an expert witness to render an opinion as to matters relating to the accident, and that he rendered a one-page written report dated October 8, 1966. In August 1967, in answer to further inter rogatories, defendant stated among other things that petitioner Morelli had knowledge of some of the facts on which it based its denial that the accident was caused by a mechanical failure.

On September 22, 1967, plaintiffs gave notice that the deposition of petitioner would be taken on October 5, and procured and issuance of a subpoena duces tecum requiring him to answer at that time and to produce his report dated October 8, 1966, concerning the mechanical condition of the vehicle. According to the declaration of John Skoog this subpoena was served on petitioner in Pasadena on October 2, 1967, at which time he demanded and received a witness fee of $5. Petitioner did not appear for the taking of his deposition on October 5. On November 2 the court issued an order requiring petitioner to show cause on November 21 why he 'should not be made to appear and answer questions propounded on oral deposition by Meserve, Mumper & Hughes, attorneys for plaintiffs, at a time and place set by the above Court, or why in the alternative, an order should not be made, adjudging you to be in contempt and punished therefor for your refusal to obey the Subpoena Duces Tecum re Deposition * * * served on you, commanding you to attend the taking of your deposition on October 5, 1967, * * *.' This order to show cause was served on petition by John Skoog on November 6. ^*

When petitioner failed to appear on November 21 either in person or by an attorney in response to the order to show cause the court ordered a bench warrant to issue with bail fixed at $500 to be held until November 24 to which date the proceeding was continued. Petitioner was notified of this order by certified letter, for which petitioner signed a receipt. Petitioner again failed to appear on November 24 and the court ordered the bench warrant released for service.

Petitioner was arrested pursuant to the warrant on January 9, 1968. What appears to be a copy of a report of the arresting officers in the superior court file states that upon his arrest 'Defendant was transported to and booked at the LACO Central Jail under Booking No. 644--011. Arraignment was set for January 10, 1968, and warrant was left in the Booking Office.' ¹ So far as the record shows, there were no proceedings in the matter on January 10. Further proceedings were had in court on January 12 as shown by the minute order for that day which reads: 'The non-party witness, DINO MORELLI, having been arrested pursuant to the Attachment on Defaulter heretofore ordered and issued, and then subsequently thereto posted bail in the sum of $575.00, same being in the form of Bail Bond No. 460636 MC dated Jan. 9th, 1968, and on file herein, with its order therein for said Dino Morelli to appear in this court on January 12th, 1968, at 9:30 AM, this date; and the said non-party witness fails to appear in court, the court now makes the following order: Bail is forfeited. The matter of plaintiffs' Order to Show Cause re Contempt (C.C.P. 2034(B)(1) is restored to the calender and ordered Continued to January 19th, 1968 at 10:30 AM, this department, for further proceedings. (A copy of this minute order is forwarded by U.S. Mail to the above named attorneys (Meserve, Mumper & Hughes and Chris Rolin, Michael Cullen, Ruston & Nance), together with attorney Korman D. Ellis, Suite 650, 727 W.7th St., Los Angeles 90017, this date.)'

On January 19 petitioner did not appear in person but did appear by Korman D. Ellis, Esq., his attorney, who filed a declaration executed by petitioner January 18, objecting to the jurisdiction of the court. The minute order for that day reads: 'Karman Dorsey Ellis, attorney for non-party witness Dino Morelli, appearing as attorney of record for said non-party witness, makes statements to the court. Dino Morelli having again failed to appear in court this date, the court non--makes the following order: Bench Warrant (Attachment for Defaulter) is ordered for Deno Morelli with bail set at $500.00 plus penalty assessment of $750.00, serviceable forthwith, returnable forthwith.'

By his petition filed January 24, 1968, Morelli prays for a writ of prohibition 'commanding respondent to desist from any further proceedings in the execution, or enforcement of said order re bench warrant, and from any proceedings to bring petitioner in contempt, or to adjudge him guilty of contempt for failing personally so to appear, or to punish him therefor.' In the light of the record before us the prayer of the petition is ambiguous to say the least. Although the record discloses that there were two orders 're bench warrant' it is impossible to say from the prayer which order petitioner is referring to. In order to make a complete disposition of the matter we shall assume that he challenges the jurisdiction of the respondent court to make either of those orders.

As we read his petition, Morelli appears to contend, first, that the court had no jurisdiction to order the issuance of either bench warrant because the service of the subpoena duces tecum was 'improper' and that the 'alleged Order to Show Cause is inadequate' in certain particulars. ² It is enough to say that the subpoena duces tecum served on Morelli ordering him to appear for his deposition and the order to show cause appear regular on their face. The question of whether the service of the subpoena duces tecum was proper was available to him by way of defense to the order to show cause. Again, any question as to the adequacy of the order to show cause and of the affidavit and declaration on which it was based could and should have been raised by an appropriate pleading in response to that order.

The order of November 2, 1967, required Morelli to show cause why he should not be adjudged in contempt of court for his alleged failure to obey the subpoena. Orderly procedure required him to appear and make that showing on the day fixed by that order. Instead of appearing on that day and making his showing of good cause why he should not be adjudged in contempt, he elected to disregard and ignore that order, just as he had previously failed to appear in response to the subpoena and now challenges the jurisdiction of the respondent court to hear and determine the issues raised by the order to show cause.

Petitioner's challenge to the jurisdiction of the respondent court at this time in this proceeding is premature. In Frost v. Superior Court, 41 Cal.App. 580, 183 P. 206, petitioner sought the review of an order of the superior court for the issuance of a writ of attachment for contempt against the petitioner, based on the report of the referee that he had failed to appear before the referee pursuant to an order for his examination as a judgment debtor. There, as here, petitioner sought to annul the contempt proceedings for want of jurisdiction. The court refused to consider the points raised by petitioner, holding (p. 584, 183P. p. 207) that 'no review of a proceeding had by an inferior tribunal through the writ here asked for should be allowed unless in such a proceeding there has been a final adjudication or determination of the subject-matter thereof.' (To the same effect, see Ahrens v. Evans, 42 Cal.App.2d 738, 109 P.2d 991.) Here, as in Frost, the question we are asked to review is whether or not the proceedings instituted against petitioner for contempt are legal or within the jurisdiction of the respondent court to hear and determine, although there has been no final determination or adjudication of the matter by that court. The subpoena duces tecum was an order of the court requiring petitioner to appear for his deposition and produce a certain document. (Code Civ.Proc., §§ 1985, 2016, subd. (a).) The refusal of any person to obey a subpoena issued by the court to attend a deposition may be punished by the court as a contempt. (Code Civ.Proc., § 2034, subd. (b)(1).) Since section 2034, subdivision (b)(1) expressly invested the respondent coury with jurisdiction, it follows, as the court said in Frost, that that court is to be permitted without interruption to exercise such jurisdiction until its judgment, following from the employment of the power given it by statute in that respect, has become final. Whatever error may be committed in the exercise of that power may then be considered on a review of the final judgment. 'It certainly cannot be held to be the law...