Mossman v. Superior Court

• Decision Date: 06 January 1972
• Citation: 22 Cal.App.3d 706,99 Cal.Rptr. 638
• Court: California Court of Appeals Court of Appeals
• Parties: David J. MOSSMAN, Petitioner, v. SUPERIOR COURT, COUNTY OF CONTRA COSTA, Respondent; Shirley Ann MOSSMAN, Real Party in Interest. Civ. 30476.

Page 638

99 Cal.Rptr. 638

22 Cal.App.3d 706

David J. MOSSMAN, Petitioner, v. SUPERIOR COURT, COUNTY OF CONTRA COSTA, Respondent Shirley Ann MOSSMAN, Real Party in Interest.

Civ. 30476.

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

Jan. 6, 1972.

Ward A. Smith, Concord, for petitioner.

Michael P. McCabe, Trembath & McCabe, Concord, for real party in interest.

ELKINGTON, Associate Justice.

On this petition of David J. Mossman (David) for a writ of prohibition the question presented concerns the jurisdiction of the respondent superior court to make and enforce certain contempt orders.

By a judgment, dated June 9, 1961, of the Circuit Court of Jackson County, Missouri, David was, among other things, ordered to pay to Shirley Ann Mossman (Shirley Ann) $35 and $5 each week for, respectively, support of their two minor children and her alimony and maintenance. Thereafter Shirley Ann commenced an action in the Contra Costa County Superior Court to 'establish' in this state the Missouri judgment. At the trial in Contra Costa County David did not personally appear, but he was represented by counsel retained by him. Judgment was entered, October 9, 1970, establishing the Missouri judgment, and ordering David to pay Shirley Ann $35 each week for support of the minor children and $5 each week as alimony. Notice of entry of the judgment was served by mail on David's attorney.

On August 16, 1971 the superior court issued an 'Order to Show Cause re Contempt' directing David to show cause why he should not be adjudged in contempt for wilfully disobeying the order directing payment to Shirley Ann for child support and alimony. The order was based on an affidavit of Shirley Ann reciting, as we deem relevant and material to the issue before us, that David had never paid any of the sums ordered to be paid by either the Missouri, or the Contra Costa County, judgment. Although an appearance was made by counsel at the appointed time, David personally did not appear. Thereafter a 'Further Order to Show Cause in re Contempt' based upon the earlier affidavit was issued by the court.

The hearing on the orders to show cause was held October 5, 1971, with David present in court. David's attorney objected to the jurisdiction of the court to proceed for the reason that it did not appear of record, or otherwise, (1) that David had notice of the terms of the Contra Costa County judgment of October 9, 1970, or (2) that he had the ability to make the payments required by the judgment. ¹ The order to show cause was then continued to another date for further hearing. That hearing was never held because of the intervention of the instant prohibition proceedings.

The issues now before us are the same as raised in the superior court.

It is well-known law that jurisdiction to hear and determine a constructive contempt proceeding, such as in the case before us, does not lie except upon a prima facie showing by Affidavit that the alleged contemner had knowledge of the subject order. (Phillips v. Superior Court, 22 Cal.2d 256, 257, 137 P.2d 838.) This rule is codified in Code of Civil Procedure section 1211, which, as relevant here, provides: 'When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers. . . .' Therefore, in the present posture of the instant contempt proceedings, the superior court would appear to have no power to adjudge David to be in contempt.

But it does not follow that the superior court was otherwise deprived of jurisdiction, or that the contempt proceedings were void Ab initio. Code of Civil Procedure section 1211.5 (enacted 1970) provides in part: 'At all stages of all proceedings, the affidavit or statement of facts, as the case may be, required by Section 1211 shall be construed, amended, and reviewed according to the following rules: . . . (b) The court may order or permit amendment of such affidavit or statement for any defect or insufficiency at any stage of the proceedings, and the trial of the person accused of contempt shall continue as if the affidavit or statement had been originally filed as amended, unless substantial rights of such person accused would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.' ² Shirley Ann's affidavit may accordingly be amended to allege that David did have notice of the terms of the Contra Costa County judgment.

A related question necessary to the final disposition of the contempt proceedings will undoubtedly in the future be raised in the superior court. We therefore choose to pass upon it (see Code Civ.Proc., § 43, formerly § 53; Yarrow v. State of California, 53 Cal.2d 427, 439--440, 2 Cal.Rptr. 137, 348 P.2d 687). This question relates to Proof of David's knowledge of the terms of the judgment.

While the records of the action from which these proceedings emanate, may not supply allegations of jurisdictional facts missing from Shirley Ann's affidavit (see Phillips v. Superior Court, supra, 22 Cal.2d 256, 257, 137 P.2d 838), they may nevertheless, at the hearing on the order to show cause, constitute Prima facie evidence of those facts. A court will take judicial notice ³ that an alleged contemner, although not personally present, was represented in court by his attorney who participated in the hearing at which the subject order was made. In such event a Disputable presumption arises that the alleged contemner had notice of the order. (Freeman v. Superior Court, 44 Cal.2d 533, 537--538, 282 P.2d 857; In re Ferguson, 123 Cal.App.2d 799, 802--803, 268 P.2d 71; Mattos v. Superior Court, 30 Cal.App.2d 641, 647, 86 P.2d 1056, disapproved on an unrelated point by Phillips v. Superior Court, supra, 22 Cal.2d 256, 258, 137 P.2d 838.) And where service of the order has been made on the alleged contemner's attorney, a similar Disputable presumption of notice to the client arises. (Freeman v. Superior Court, supra, 44 Cal.2d 533, 537--538, 282 P.2d 857; In re Morelli, 11 Cal.App.3d 819, 838--839, 91 Cal.Rptr. 72; In re Sigesmund, 193 Cal.App.2d 219, 223--224, 14 Cal.Rptr. 221.)

As said in Freeman v. Superior Court, supra (44 Cal.2d pp. 537--538, 282 P.2d p. 860): 'It affirmatively appears from the record that when the order for payment of counsel fees and court costs was made, petitioner was represented in court by his attorney, who was thereafter served with a copy of the order. The general rule of agency, that notice to or knowledge possessed by an agent is imputable to the principal, applies for certain purposes in the relation of attorney and client. (Citations.) The rule rests on the premise that the agent has acquired knowledge which it was his duty to communicate to his principal, and the presumption is that he has performed that duty. (Citation.) While under our law the presumption is deemed conclusive for the purposes of civil actions (citation), we do not believe that it should be given that effect for the purpose of a proceeding of a criminal nature, such as a contempt proceeding. On the other hand, There appears to be no valid objection to treating the presumption as a disputable presumption for the purpose of a contempt proceeding. . . .' (Emphasis added.)

The record of the Contra Costa County action, as we have indicated, discloses that David through his attorney participated in the trial, and that upon entry of the judgment 'Notice of Entry of Judgment' ⁴ was promptly served on the attorney in accordance with the mandate of Code of Civil Procedure section 664.5. Under the authority we have pointed out a disputable presumption would arise therefrom that David had notice of the terms of the judgment.

We turn now to...