BERMUDEZ v. MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT

Reset A A Font size: Print

Court of Appeal, Second District, Division 2, California.

Gustavo BERMUDEZ, Appellant, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, Respondent.

No. B 049071.

Decided: April 09, 1991

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Albert J. Menaster, Deputy Public Defenders, for appellant. Gustavo Bermudez, Deputy Public Defender, pro se. Marion Douglas, Sr. Deputy County Counsel, Chase, Rotchford, Drukker & Bogust, John A. Daly, Richard S. Kemalyan, Maile P. China, Los Angeles, for respondent.

Gustavo Bermudez “appeals from the judgment of the superior court entered against him.”   We conclude that the judgment appealed from is nonappealable and dismiss the appeal.

The controlling facts are not in dispute.   Bermudez, a deputy public defender for the Los Angeles County Public Defender's Office, was trial counsel in the case of People v. Giovani Recinos in Division 15 of the Municipal Court of the Los Angeles Judicial District.   On March 27, 1989, the jury in the Recinos case was deliberating.   On that day, Bermudez began trial in a second case, People v. Arthur Decatur, in Division 74 of the Municipal Court of the Los Angeles Judicial District, Judge Victoria Chavez presiding.   At about 4:30 p.m. on March 27, 1989, the Decatur case was recessed until 9 a.m., March 28, 1989 for hearing on Decatur's motion to suppress pursuant to Penal Code section 1538.5.   Judge Chavez instructed Bermudez “to be [in court] promptly at that time so we can begin and be finished by noon.”   Bermudez advised Judge Chavez that though he had another appearance in Division 15, he would take the necessary steps to have that appearance covered by another attorney.1  On March 28, 1989, at approximately 8:45 a.m., Bermudez called Judge Chavez's court and left a message with the bailiff that he was unable to find a stand-in attorney for his other appearance.   There was no other direct communication from Bermudez until he arrived in Division 74 at approximately 10:30 a.m.   Judge Chavez instituted contempt proceedings.   Bermudez explained that he was unable to find coverage for his other appearance and due to the fact that he was ordered to be in Division 15, he chose to make that appearance.   Judge Chavez concluded there was no legal excuse for Bermudez's tardiness and found him in contempt of court.   Bermudez was ordered to pay a fine of $100 on or before April 4, 1989.

Bermudez filed a petition for a writ of certiorari in the superior court, praying for an annulment of the contempt order.   The court issued a stay of payment of the fine and set the matter for hearing.   Following the hearing, the superior court entered judgment affirming the order of contempt and dissolving the stay order.2

In this purported appeal, Bermudez contends (1) he did nothing wrong;  (2) the contempt is void because Judge Chavez's written contempt order failed to recite that the contempt occurred in the immediate view and presence of the court;  and (3) Judge Chavez violated due process by refusing him a hearing on whether he was in contempt.   Because we conclude the judgment here is nonappealable, we do not reach the merits of these contentions.

Bermudez maintains the superior court's judgment denying his petition for a writ of certiorari is appealable.   His argument goes like this:  The writ of certiorari,3 and the writs of mandate and prohibition, are “civil” writs which exist in California.   They are denominated “special proceedings of a civil nature” over which the superior court has original jurisdiction.  (Cal. Const., art. VI, § 10.)   Appeals from judgments in such special proceedings are governed by the rules applicable to civil proceedings in general.  (Code Civ.Proc., § 1110.) 4  Thus, an appeal from a judgment in a petition for a writ of certiorari is governed by section 904.1.5  In Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 140 Cal.Rptr. 897 and Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 111 Cal.Rptr. 539, it was perceived that there existed a “loophole in our appellate system” which permitted full appellate review of rulings made by municipal courts through the device of filing a petition for a writ of mandate or prohibition in the superior court.   An order, which was not appealable in the municipal court was thereby transformed into an appealable judgment in the superior court.   To close the loophole, the Legislature, in 1982, amended section 904.1 to provide that judgments granting or denying petitions for writs of mandate or prohibition directed to a municipal court are not appealable.   In this amendment, the Legislature failed to also make nonappealable judgments granting or denying petitions for writs of certiorari;  therefore, while superior court judgments in mandate and prohibition actions are now not appealable, judgments granting or denying petitions for writs of certiorari remain appealable.   The “loophole” still exists insofar as petitions for writs of certiorari are concerned.

The foregoing argument might have merit had the order on which he sought review by his petition for certiorari not involved contempt.   Section 1222 makes “judgment[s] and orders of the court or judge, ․ in cases of contempt, ․ final and conclusive.”   They are not appealable.  (§ 904.1, subd. (a)(2);  Moffat v. Moffat (1980) 27 Cal.3d 645, 656, 165 Cal.Rptr. 877, 612 P.2d 967.)

Bermudez recognizes that the original contempt order was itself not reviewable by appeal.   He contends, however, that his appeal is not from a contempt order, but is instead an appeal from a judgment denying a certiorari petition and, thus, is appealable as a matter of right.   This contention is without merit.   There can be no question that it is the contempt order that is being appealed.   Characterizing the judgment as a denial of a petition for a writ of certiorari does not change that fact.   The effect and substance of the judgment should determine its appealability.  (See Peninsula Prop. Co. v. County Santa Cruz (1951) 106 Cal.App.2d 669, 678, 235 P.2d 635.)

We do not ordinarily review orders of the municipal court, even those that are appealable to the superior court.   The order here is not appealable to the superior court.   It does not make any sense to make it appealable to this court merely by the device of filing of a petition for a writ of certiorari.  (See Webb v. Municipal Court (1981) 118 Cal.App.3d 881, 885, 173 Cal.Rptr. 636.)   The specific policy of section 1222 making contempt orders final and conclusive controls the general appealability provisions of section 904.1.   (Gale v. Tuolumne County Waters Co. (1914) 169 Cal. 46, 51, 145 P. 532.)   We conclude that a judgment of the superior court denying a petition for a writ of certiorari directed to a municipal court or judge thereof is not appealable under the general provisions of section 904.1, when the petition is directed to an order of contempt.

There have been a number of instances where courts of appeal have entertained appeals of superior court judgments on writs of certiorari in contempt cases.   The question of appealability was not discussed in any of those cases and we do not consider them as authority on this issue.  (See McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 270 Cal.Rptr. 640;  Bobb v. Municipal Court (1983) 143 Cal.App.3d 860, 192 Cal.Rptr. 270;  Crosswhite v. Municipal Court (1968) 260 Cal.App.2d 428, 67 Cal.Rptr. 216;  Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 60 Cal.Rptr. 575;  Thorne v. Municipal Court (1965) 237 Cal.App.2d 249, 46 Cal.Rptr. 749;  Blake v. Municipal Court (1956) 144 Cal.App.2d 131, 300 P.2d 755;  Turkington v. Municipal Court (1948) 85 Cal.App.2d 631, 193 P.2d 795;  Ingold v. Municipal Court (1948) 85 Cal.App.2d 651, 193 P.2d 808;  Gillen v. Municipal Court, etc. (1940) 37 Cal.App.2d 428, 99 P.2d 555.)

This is the fourth attempt by Bermudez to have reviewed a $100 nonappealable municipal court contempt order.   He received a full review by the superior court on his petition for a writ of certiorari.   He next filed a petition for a writ of mandate with the Court of Appeal, followed by a petition for review in the Supreme Court of the Court of Appeal's summary denial of the petition for a writ of mandate.   We believe that it is time to put this matter to rest.   Although we could treat this attempted appeal as yet another writ proceeding (Olson v. Cory (1983) 35 Cal.3d 390, 401, 197 Cal.Rptr. 843, 673 P.2d 720), we decline to do so.

The appeal is dismissed.

FOOTNOTES

1.   Sometime during that afternoon, Bermudez was telephonically informed the jury in the Recinos matter had arrived at a verdict, and that he should be in Division 15 at 9:30 a.m., March 28, 1989.

2.   In its notice of ruling, the court stated:  “The order of contempt is affirmed.   Notwithstanding an explicit order on March 27, 1989, from Judge Chavez to appear in her courtroom at 9:00 AM the following morning, petitioner took it upon himself not to appear, and instead to be in another court where a jury was expected to return a verdict at or soon after 9:30 AM.  [¶] The record discloses that at about 4:30 PM on March 27, petitioner knew that he had been directed to appear in the other court and that he so informed Judge Chavez.   Judge Chavez understood from petitioner that he would see that the other court was covered.   Petitioner asserts he attempted to have another attorney in his office appear in the other court when the verdict was returned, but, importantly, the record is silent as to what efforts he made.   Also, the record does not disclose that petitioner made any effort to communicate with the other court in an attempt to resolve the scheduling situation.  [¶] Petitioner finally appeared in Judge Chavez' court at 10:30 AM;  the court, deputy city attorney and police officer witness had been waiting since 9:00 AM.  [¶] Thus, petitioner made a unilateral decision not to appear in Judge Chavez' court at 9:00 AM and, instead, to be in the other court at 9:30 AM.   Judge Chavez' findings and conclusions are well-supported by the record.  [¶] The several technical issues raised by petitioner are without factual or legal support.   The trial court did not commit error nor did it abuse its discretion.”

3.   Code of Civil Procedure section 1067 provides that “[t]he writ of certiorari may be denominated the writ of review.”

4.   All further statutory references are to the Code of Civil Procedure.

5.   Section 904.1 reads, in relevant part:  “An appeal may be taken from a superior court in the following cases:  [¶] (a) From a judgment, except (1) an interlocutory judgment, other than as provided in subdivisions (h) and (i), (2) a judgment of contempt which is made final and conclusive by Section 1222, (3) a judgment on appeal from a municipal court or a justice court or a small claims court, or (4) a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court.   However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition, or a judgment or order for the payment of monetary sanctions, upon petition for an extraordinary writ.”

FUKUTO, Associate Justice.

GATES, Acting P.J., and NOTT, J., concur.