Morelli v. Superior Court

• Decision Date: 09 December 1969
• Citation: 82 Cal.Rptr. 375,1 Cal.3d 328
• Court: California Supreme Court
• Parties: , 461 P.2d 655 Dino A. MORELLI, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. L.A. 29649.

Page 375

82 Cal.Rptr. 375

1 Cal.3d 328, 461 P.2d 655

Dino A. MORELLI, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

L.A. 29649.

Supreme Court of California In Bank.

Dec. 9, 1969.

Rehearing Denied Jan. 8, 1970.

James Jess, Los Angeles, for petitioner.

John D. Maharg, County Counsel, Edward H. Gaylord, Asst. County Counsel, and Jean Louise Webster, Deputy County Counsel, for respondent.

McCOMB, Justice.

Petitioner seeks prohibition restraining further proceedings on a pending contempt citation and mandamus commanding respondent court to recall and annul certain bench warrants issued by it upon petitioner's failure to obey a subpoena duces tecum in civil proceedings formerly pending in respondent court.

Petitioner, a professor at the California Institute of Technology, was an expert witness in a civil action filed in respondent court. Upon his failure to appear for a deposition in response to a subpoena duces tecum served upon him, the plaintiffs in the civil action instituted civil contempt proceedings against him. On November 2, 1967, respondent court issued an order to show cause why petitioner should not be held in contempt for failure to obey the subpoena duces tecum.

Petitioner failed to appear at the noticed hearing, and respondent court issued a bench warrant with bail fixed at $500. Petitioner was arrested, posted bail, and was again ordered to appear on the order to show cause. He again failed to appear. His bail was then ordered forfeited, and the proceedings were continued to January 19, 1968.

On January 19, 1968, petitioner appeared only through his attorney, who challenged the jurisdiction of the court. Respondent court, although accepting the special appearance of petitioner's attorney, was of the opinion that it had the right to compel petitioner to appear in person, and therefore ordered issuance of another bench warrant with bail fixed at $5,000 plus a penalty assessment of $750, refusing to proceed with the hearing in petitioner's absence. Petitioner, in proceedings prior to those in the instant matter, sought prohibition. (Morelli v. Superior Court, 262 Cal.App.2d 262, 68 Cal.Rptr. 572.)

In such prior proceedings, the Court of Appeal, citing Ex Parte Gordan, 92 Cal. 478, 28 P. 489, held that petitioner was entitled to appear through his attorney at the January 19, 1968, hearing on the order to show cause and that the trial court did not have the power to require his appearance in person. Accordingly, the Court of Appeal ordered the issuance of its peremptory writ of prohibition commanding respondent court to refrain from enforcing its order for issuance of the second bench warrant, wherein bail was fixed at $5,000 plus $750 penalty assessment.

At the same time, the Court of Appeal, on the ground that the petition for prohibition was premature, since there had not been a final adjudication of contempt, denied the writ of prohibition 'to restrain said court from hearing and determining the proceedings based on the order * * * requiring petitioner to show cause why he should not be adjudged in contempt of court for his refusal to obey the subpoena duces tecum. * * *' In this connection, the court stated: '(W)e must emphasize the fact that the respondent court still has jurisdiction to hear and determine the charge that (petitioner) is in contempt of court for failing and refusing to obey the subpoena duces tecum, and has the duty to permit (him) to appear by his attorney without requiring him to appear personally.' (p. 270(5) of 262 Cal.App.2d, p. 578 of 68 Cal.Rptr.)

Following determination of the prior prohibition proceedings, the plaintiffs in the basic action, who had originally charged petitioner with contempt, dismissed that cause with prejudice and advised respondent court that such a dismissal had been filed. ¹ Thereafter, on June 25, 1968, respondent court, on its own motion, issued a further order to show cause in re contempt based on the original order to show cause, dated November 2, 1967, ordering petitioner to appear on August 9, 1968, either in person or through his attorney. A copy thereof was sent to the attorney who had been present on petitioner's behalf on January 19, 1968, at the time set for a hearing on the order to show cause.

On August 9, 1968, when petitioner failed to appear either personally or through his attorney, respondent court continued the matter to September 13, 1968, and ordered the issuance of another bench warrant with bail fixed at $5,000 plus penalty assessment. Petitioner did not appear at the September 13, 1968, hearing either personally or through his attorney, and the matter was continued to October 1, 1968, and subsequently to October 29, 1968. A motion by petitioner to vacate the order for his arrest, previously set for an earlier date, was likewise continued to October 29, 1968.

During the course of the proceedings, petitioner sought by motions under section 170, subdivision 5, and 170.6 of the Code of Civil Procedure to disqualify the judge who had issued the orders to show cause and was to hear the matters. Petitioner's motion under section 170, subdivision 5, for actual alleged bias or prejudice was heard by a different judge, who found the declarations in support thereof to be insufficient and denied the motion on October 28, 1968. Petitioner's motion under section 170.6 was heard on October 29, 1968, by the judge who issued the orders to show cause and was denied by him as being untimely filed. ²

On October 29, 1968, after petitioner's motion under section 170.6 of the Code of Civil Procedure was denied, petitioner's present counsel indicated that he was not prepared to go forward on the order to show cause and that he was appearing specially for petitioner but only on the motion to vacate the order for petitioner's arrest. At that time, respondent court again ordered a bench warrant to be issued with bail fixed at $5,000 plus penalty assessment, but further directed that the sheriff execute only one warrant with bail fixed at $5,000 plus penalty assessment. There has been no service on petitioner of any of the warrants with such bail and penalty assessment. Proceedings on the order to show cause and on petitioner's motion have been continued pending petitioner's application for relief in the present proceedings.

Question: Is petitioner subject to punishment for contempt even though the contempt proceedings arose out of a civil action which has been terminated?

Yes. When a witness has disobeyed a subpoena duly served upon him in a pending action, he has committed a contempt. (Code Civ.Proc. § 1209, subd. 9.) The court may then punish him for a criminal contempt by imposing upon him a fine not exceeding $500 or imprisonment not exceeding five days, or both (Code Civ.Proc. § 1218). When the contempt consists in the omission to perform an act which is still within the person's power to perform, the court may, in the alternative, punish him for a civil contempt and order him imprisoned until he has performed the act (Code Civ.Proc. § 1219). (For a discussion of criminal and civil contempts, see In re Morris, 194 Cal. 63, 66--67 (1, 2), 227 P. 914.) ³

If the action in which the person was subpoenaed as a witness is later terminated, it would no longer be possible for him to testify therein. As a result, it would not then be within his power to perform the act he was previously ordered to perform, and he could not be punished for a civil contempt. (Harris v. Texas & Pacific Ry. Co., 7 Cir., 196 F.2d 88, 89--90; Ex Parte Overend, 122 Cal. 201, 203--204, 54 P. 740; Ex Parte Rowe, 7 Cal. 175, 177.) That is the situation here.

A termination of the action, however, does not prevent the court from imposing punishment for a criminal contempt committed therein. (In re Robbins, 212 Cal. 534, 535--536, 299 P. 51; Ex Parte Acock, 84 Cal. 50, 55, 23 P. 1029; Dolley v. Ragon, 67 Cal.App. 731, 732, 228 P. 664; see also Whitlow v. Superior Court, 87 Cal.App.2d 175, 196 P.2d 590.) Thus, respondent court still has authority to punish petitioner for a criminal contempt if the proper procedural safeguards are preserved and the evidence is...