Vaughn v. Municipal Court of Los Angeles Judicial Dist.

• Decision Date: 06 July 1967
• Citation: 60 Cal.Rptr. 575,252 Cal.App.2d 348
• Court: California Court of Appeals Court of Appeals
• Parties: George L. VAUGHN, Jr., Petitioner and Appellant, v. The MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT, County of Los Angeles, State of California, Respondent. Civ. 31326.

Page 575

60 Cal.Rptr. 575

252 Cal.App.2d 348

George L. VAUGHN, Jr., Petitioner and Appellant, v. The MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT, County of Los Angeles, State of California, Respondent.

Civ. 31326.

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

July 6, 1967.

Hearing Denied Oct. 4, 1967.

Robert J. Hall, .los Angeles, for appellant.

Harold W. Kennedy, County Counsel, and Robert C. Lynch, Asst. County Counsel, for respondent.

LILLIE, Associate Justice.

Appellant, an attorney at law, was adjudged guilty of two counts of contempt (1) for his wilful misrepresentation to respondent Court on September 13, 1965, of the fact that he was required to appear in the Federal District Court in Chicago on September 14, 1965, for pretrial in Sibley v. Illinois Central Railroad; and (2) for his wilful failure to appear for trial of People v. Powers on September 15, 1965, in compliance with the lawful order of respondent Court. ¹ On his petition the superior court (Department 70) issued writ of certiorari; thereafter judgment was entered affirming judgment of respondent Court and discharging the writ. Appeal is taken from the superior court judgment.

In addition to the formal judgment roll, there are included in the record a number of exhibits consisting of reporter's transcripts of various proceedings in respondent Court (Exhs. M through U); Findings and Order of Contempt and Commitment (Exh. A); certified copy, Docket, United States District Court, Sibley v. Illinois Central Railroad (Exh. B) and minute orders of respondent Court (Exhs. c. through G; L). The Findings and Order of Contempt and Commitment are extensive; the facts therein are stated in such detail and with such particularity as to leave no doubt that two acts of direct contempt occurred. The following is a summary of the evidence which amply supports the findings and ajudication.

The genesis of the controversy arose out of appellant's representation of defendant Powers in criminal case No. 219 351, on trial in Division 26 of respondent Municipal Court on September 13, 1965. On that day, to obtain a continuance of the trial, appellant, in open court, represented to Judge Nebron that he was required to be in the Federal District Court, Chicago, Illinois, the next day, September 14, 1965, at 1:30 p.m., for a pretrial hearing in Sibley v. Illinois Central Railroad; he also represented that he was scheduled to leave on the 6:30 a.m. plane and 'fly out of (Chicago) at 5:30 and be back here at 9:00 o'clock tomorrow night (September 14, 1965).' Relying upon appellant's representation, the judge adjourned Powers to Wednesday, September 15, 1965, at 8 a.m., and in open court instructed all persons to appear at that time. Appellant was present and heard and understood the order; in fact, upon being asked by the judge about adjourning to September 15, 1965, he answered, 'Well, that (date) would be all right with me'; and the judge set the hour of appearance on that day for 8 a.m. specifically to accommodate appellant who also represented that he had other appearances on that day at 9 a.m.

The following day, September 14, 1965, around 3:30 p.m., appellant's secretary telephoned the clerk, Division 26, 'saying that Mr. Vaughn wanted a continuance' of Powers trial from September 15, 1965, to some future date; upon direct instructions of Judge Nebron the clerk told her that he 'said no, that Mr. Vaughn would have to make the appearance'; she replied, 'Oh, dear, I think he's already gone' (to Washington), 'Could someone else come and make the appearance for him?'; the clerk said, 'Anyone can come into this courtroom'; at no time did the clerk advise appellant's secretary that appellant was excused from appearing on September 15, 1965, or that any other lawyer could appear for him. Appellant's secretary testified that she did not report this conversation to anyone; thus, appellant could have known nothing of this discussion.

The next day, September 15, 1965, at 8:05 a.m., respondent Court convened for further trial of Powers; all persons except appellant were present, as ordered, and ready to proceed. Attorney Odis Jackson appeared and told Judge Nebron that he was there for the purpose of continuing the matter on behalf of appellant; had not discussed the case with appellant, only with his secretary; did not know Powers was on trial but thought it was a motion; had never seen Powers, did not represent him, had not consented to represent any of appellant's clients and was not prepared to try the case; had been told about the appearance for the first time by appellant's secretary between 3:30 and 4 p.m. on the day before (September 14); thought appellant's wife was having a baby and knew nothing about appellant going to Washington, D.C. Then the clerk, upon instructions of the judge, called appellant's secretary who told her that appellant 'was called to Washington, D.C. * * * regarding a national bank' and 'he left about 10 o'clock yesterday (September 14, 1965) and would be back on Friday (September 17, 1965).' Thus, Powers was left without representation in the middle of a criminal trial; he had not been advised by appellant that he would not appear and his trial was continued to September 30, 1965.

On September 29, 1965, appellant called the clerk by telephone requesting another continuance of Powers; upon specific instruction of Judge Nebron, the clerk refused his request, told him he must appear and advised him that the court 'was reserving jurisdiction in this matter to issue a possible contempt citation' against him.

The next morning (September 30) appellant appeared; respondent Court advised him that it was reserving jurisdiction for contempt proceedings; the Powers trial was concluded; and the contempt hearing was set for October 13, 1965.

Two hearings (October 13, 1965, and December 22, 1965) were held. In connection with Court I, appellant's first explanation (October 13) for having represented to the court that he was required to be in Chicago on September 14, 1965, was that on September 13, 1965, he believed that the pretrial of Sibley v. Illinois Central Railroad was set in the United States District Court for September 14, 1965. He testified that after 5 p.m. on September 13 he called Mr. Cerne, attorney for the railroad in Chicago in Sibley but was told he had gone home; two hours later, Cerne called him and discussed settlement; Cerne told him he would have to submit the offer to his company and that He (Cerne) would call the court and have the pretrial go over. Appellant admitted he had never made any reservation for transportation to Chicago on September 14, 1965, to attend the pretrial of Sibley v. Illinois Central Railroad.

On the second hearing (December 22, 1965), certified copy of Docket, No. 64--C 1190, United States District Court, Northern District of Illinois, Sibley v. Illinois Central Railroad, was received in evidence; it showed that there had been no hearing scheduled in that case on September 14, 1965, but that it was scheduled for September 22, 1965. Given further opportunity to explain, appellant then told a second, new and different version, conflicting with that given by him on October 13, 1965. He testified that on September 10, 1965, he had been advised by Eskridge, co-respondent counsel in Chicago in Sibley, that the pretrial would be held September 14, 1965, at 1:30 p.m. but thought there was a good chance of settlement; on September 13, 1965, between 7:30 and 9 p.m., he called Eskridge in Chicago who told him the pretrial would not be held on September 14, 1965, but on September 22, 1965. However, at a later point in his testimony, appellant stated that in his conversation with Eskridge on September 13, 1965, Eskridge advised him that the matter was being negotiated and He (Eskridge) would call the attorney for the railroad and have the pretrial go over. In appellant's personal day book and office calendar the Sibley pretrial was shown as set for both September 14, 1965, and September 22, 1965; he did not explain the conflict in dates and was unable to identify the handwriting on the conflicting entries.

Finding that in the course of a criminal trial 'in the immediate view and presence of the Court,' and for the purpose of obtaining a continuance, appellant represented to the court that he was required to be in the Federal District Court in Chicago on September 14, 1965, at 1:30 p.m., for a pretrial of Sibley v. Illinois Central Railroad; based upon this representation, the court continued the trial of Powers to September 15, 1965, at 8 a.m., instructing appellant to appear then for further trial of Powers, the hour of appearance having been set to accommodate appellant; at no time was any pretrial hearing in Sibley ever set by the Federal District Court for September 14, 1965, but was in fact set for September 22, 1965; appellant's representation to the court that he was required to be in the Federal District Court in Chicago on September 14, 1965, was wilfully false; the misrepresentation was wilfully made by him to the court and appellant's explanations for his misrepresentation were wholly in conflict with each other, in part inherently improbable, not worthy of belief, and did not constitute sufficient explanation, reason, or excuse for his conduct in making the misrepresentation, respondent Court adjueged appellant respondent Court adjudged appellant

In connection with Count II, appellant's explanation for failing to appear for Powers' trial on September 15, 1965, as ordered, was that he went to Washington, D.C., on September 14, 1965, in connection with an application for a bank charter on behalf of a group of Negro clergymen and others called the Committee To Organize The National Bank of Commerce which he represented as attorney. He testified that this group had threatened to initiate picket lines in front of and distribute literature urging a boycott of two banks in the...