People v. Tabb

Decision Date27 March 1991
Docket NumberNo. D012867,D012867
Citation279 Cal.Rptr. 480,228 Cal.App.3d 1300
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff, v. Mark Outler TABB, Defendant; Kirk Migdal, Appellant; The Municipal Court for the San Diego Judicial District of San Diego County, Respondent.

Francis J. Bardsley, Public Defender, and Richard P. Siref, Deputy Public Defender, for appellant.

Lloyd M. Harmon, Jr., County Counsel, and R. Mark Beesley, Deputy County Counsel, for respondent.

HUFFMAN, Acting Presiding Justice.

Kirk Migdal, a deputy public defender who was attorney of record for defendant Mark Outler Tabb in a felony matter, was sanctioned $75 by the municipal court pursuant to Code of Civil Procedure section 177.5 1 when he failed to timely appear at Tabb's scheduled preliminary hearing. In an appeal to the appellate department of the superior court, Migdal challenged the applicability of section 177.5 to any criminal proceeding and alternatively contended that, even if the section applied, he was not in violation of it because he was inadvertently, not willfully, tardy to the hearing, and in any case the order imposing sanctions failed to comply with statutory requirements. The appellate department of the superior court affirmed the order imposing sanctions and certified the matter to this court for settlement of the important question of law of the scope of applicability of section 177.5. We have examined the text and legislative history of the section and conclude it is fully applicable to criminal proceedings. Moreover, the municipal court did not abuse its discretion in imposing the sanction nor was the order inadequate in form. We affirm.


The facts giving rise to the award of sanctions are summarized in the parties' engrossed settled statement on appeal which incorporates as part of the appellate record the minute orders and reporter's transcripts of the relevant hearings. (Cal.Rules of Court, rule 64, subd. (a)(1).) 2 These documents show the public defender's office was appointed to represent Tabb at his arraignment on June 5, 1989. Bail review was set for June 8 and the preliminary hearing set for June 16, 1989, at 8:15 a.m. At the June 8, 1989 bail review hearing, attorney Migdal was present on behalf of Tabb; bail review was waived and the preliminary hearing date of June 16 was confirmed with a one and one-half hour time estimate.

Before the June 16, 1989 hearing, Migdal notified the deputy district attorney on the case that Tabb would be requesting a continuance; the district attorney's office did not oppose the continuance and had no witnesses present on June 16. On that date, Tabb was present in custody in the presiding department of the municipal court. The court called his case for assignment at approximately 8:30 a.m. and again at approximately 9 a.m., but Migdal was not present because he had mistakenly miscalendared the preliminary hearing date for June 19 rather than June 16. At approximately 9:30 a.m., Migdal showed up and obtained a continuance of the preliminary hearing without opposition. The court set an order to show cause requiring Migdal to appear (without his client) on June 21, 1989. On that date, Migdal explained to the court he had made a mistake in calendaring the hearing, stating:

"I took it from the 16th and put it on the 19th. I had seen my client earlier that week, talked to the D.A. I knew there was going to be a continuance. He had no witnesses here."

The court imposed a $75 sanction payable in one week. In its written order, the court recited Migdal had been ordered to appear in the presiding department on the June 16, 1989 hearing date, had failed to answer calendar call twice, and had failed to notify the clerk of his whereabouts or a reason for his nonappearance. When he arrived, he was advised of the order to show cause why sanctions should not be imposed and the hearing date. At that hearing, he admitted he had failed to properly calendar the matter. Based on this failure to appear in a timely fashion as ordered, the court imposed $75 sanctions pursuant to section 177.5, payable to the clerk of the court within a week of the hearing. The file shows payment was received June 30, 1989.

Migdal sought a writ of certiorari from the appellate department of the superior court, which was denied on the ground the order imposing sanctions was appealable. Migdal filed his notice of appeal of the order, and then sought a writ of mandate or prohibition from this court. We denied his petition in an unpublished order dated August 15, 1989, stating there was an adequate remedy by way of appeal. (Migdal v. Municipal Court, D010544.) The order went on to explain:

"Code of Civil Procedure section 904 precludes the appeal of orders imposing sanctions under Code of Civil Procedure section 128.5 and 2023. These sanctions were imposed upon the authority of Code of Civil Procedure section 177.5, which authorizes sanctions in criminal and civil cases 'for any violation of a lawful court order.' This authority is different from and in addition to the authority provided by sections 128.5 and 2023, and hence a review of a section 177.5 order is achieved by the regular means (appeal) rather than the special proceeding (writ petition) implied by section 904." (Italics added.) 3

Migdal sought review of this order by the Supreme Court; his petition was denied November 1, 1989. The appellate department of the superior court issued its order upholding the award of sanctions and certifying the matter to this court August 10, 1990. (Rule 63, subd. (a).) By order of the presiding justice of this court, the matter was transferred here and is now presented for decision. (Cal.Const., art. VI, § 11; § 911; rule 62, subd. (a).) Accordingly, to secure uniformity of decision or to settle important questions of law, we have power similar to that of the superior court to review the matter and make such orders and judgments as are necessary for its resolution. (Ibid.) We therefore review the record and the arguments de novo. (People v. Hallman (1989) 215 Cal.App.3d 1330, 1334, fn. 3, 264 Cal.Rptr. 215.) 4


Two issues are presented: the applicability of section 177.5 to criminal proceedings in general, and the propriety of the specific award made against Migdal if the section does apply. The text of the statute, enacted in 1982, reads as follows:

"A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the county in which the judicial officer is located, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term 'person' includes a witness, a party, a party's attorney, or both.

"Sanctions pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers; or on the court's own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order."

Migdal's arguments against a broad reading of the statutory term "judicial officer" (such as would include judges or magistrates 5 presiding over any criminal matters) are grounded in the legislative history of the section. Specifically, he points to references in the Legislative Counsel's Digest accompanying the bill which speak of "existing statutory law" (i.e., § 128.5) which authorizes orders for payment of expenses incurred by reason of frivolous or delaying action or tactics. The bill's author sought to supplement this "existing statutory law" by adding this provision for imposition of money sanctions for violation of a lawful court order by a witness, party, or party's attorney. (Legis. Counsel's Dig., Assem. Bill No. 3573 (1981-1982 Reg.Sess.).)

Migdal also relies on the third reading analysis by the Assembly Office of Research of Assembly Bill No. 3573, which again referred to the "existing law" authorizing judicial officers to enforce judicial orders, including both the contempt mechanism and the then-recent enactment of section 128.5. The third reading file stated the bill would give courts additional authority to impose monetary sanctions, and commented:

"Courts seek this authority on the basis that existing contempt authority does not give them adequate power to ensure orderly and efficient operation of the courts, including the use of innovative methods such as structured pre-trial conferences. It is also argued that existing authority to impose fines for frivolous or dilatory action is not adequate to prevent abuse caused by both parties and that such authority does not permit counties to recoup costs for inappropriate delays." (Assem. Office of Research, 3d reading analysis of Assem. Bill No. 3573 (1981-1982 Reg.Sess.).)

Based on these indications of legislative intent, and on the section's use of the term "reasonable money sanctions" (customarily used in the civil discovery context; see, e.g., § 2023), Migdal contends section 177.5 was intended solely to supplement the provisions of section 128.5. In People v. Cook (1989) 209 Cal.App.3d 404, 406, 257 Cal.Rptr. 226, it was held the Legislature did not intend that section 128.5 apply in criminal actions. Migdal argues section 177.5 must likewise be restricted in scope of applicability to civil proceedings. He contends the nature of civil proceedings, where private parties may be forced to incur unnecessary expenses of time and/or money because of abusive tactics by their opponents, is so different from criminal court matters, where public employees' duties frequently require their ongoing presence to handle long calendars of different matters, that court...

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