William CLARK, Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.
This is an original proceeding in which we granted an alternative writ of mandate. The petition for peremptory writ is denied and the alternative writ is discharged.
This petition for writ of mandate was transferred by the Supreme Court for issuance of the alternative writ after a grant of review challenging imposition of a money sanction ($150.00) upon Deputy Public Defender William Clark (“Clark”) for violation of a court order “without good cause or substantial justification” pursuant to California Code of Civil Procedure section 1 177.5.2 Clark's petition was summarily denied by this court on August 30, 1991, with the deadline for payment of the sanction set for Tuesday, September 3, 1991.
Petitioner Clark was counsel for defendant Terry Curd (“Curd”) on August 20, the last day for trial, in the Compton courthouse (Judge Lois Anderson Smaltz). The case was on the 8:30 a.m. calendar, but neither Curd nor Clark appeared. Later that morning Clark appeared and requested the matter be placed on second call to enable him to contact his client. Clark and Curd appeared at second call, but no courtrooms were available for trial. The court believed a courtroom might become available by 1:30 p.m., and Clark agreed to waive time so the case could be tried in Compton and not assigned to another courthouse. The reporter's transcript reads:
“The Court: People versus Terry Dawayne Curd, TA008313. Mr. Curd is present with Mr. Clark. For the People, Mr. Wallace.
“This is a last day case for trial. What is the People's status?
“Mr. Wallace: Ready.
“Mr. Clark: Defense is ready.
“The Court: You will waive time to stay in the building; is that correct?
“Mr. Clark: Yes, your Honor.
“The Court: Have a seat, and I will notify that we need a court for you.
“(Other matters were heard by the court.)
“The Court: Mr. Curd, you are ordered to return here at 1:30 this afternoon, sir.
“(Lunch recess taken.)”
Attorney Clark failed to appear at 1:30 p.m. (Defendant Curd and the prosecutor did appear.) Just before 2:00 p.m. Clark called the court, was told the judge wanted to see him, and proceeded to the courtroom. The judge was handling other matters, so Clark went to another courtroom to take care of another case. While there he was called by the clerk, who told him Judge Smaltz wanted him. He returned to the court at about 3:00 p.m.
When he arrived, the judge stated she had “ordered this case back” at 1:30 p.m., and asked Clark why he had failed to appear. Clark's response was that although the judge had ordered defendant Curd to return at 1:30 p.m., Clark himself had not been ordered to appear: Moreover, Clark had provided the clerk with information as to where he could be located, and the “practice” in the Compton branch is that counsel need not appear until a courtroom becomes available, at which time he is summoned by the clerk. Hence he was in his office at 1:30, expecting a call from the clerk when a courtroom became available.
At this point the court announced its intention to impose a money sanction on Clark pursuant to section 177.5:
“The Court: All right. It is my intention to impose sanctions on you under 177.5 of the CCP, Mr. Clark.
“If you would like to be heard any further, I would be glad to give you more time to do that; but it is my belief that I set this matter over at 1:30. I ordered your client to be here, and I instructed you to be here so that I could find another court; and I would notify you at 1:30 to let you know whether the case could be sent out.
“I did have another court. I made arrangements over the lunch hour to find a court in which this case could be tried. We could not reach you at 1:30. My clerk has spent approximately—in an hour, must have called 20 times to different courts in different places.
“At one point, after 2:00 o'clock, you did come in while I was involved in choosing the jury. [The clerk] said you didn't talk to him. You apparently told your client that you were going somewhere and left again. I did not have an opportunity to talk with you or for my clerk to deliver a message to you.
“[The prosecutor] was here most of the time. He left for part of the time, but for most of the hour he was sitting here in court as well.
“The point is, I have not been able to send this case out to trial. There has been a court sitting vacant waiting for you, and I haven't been able to locate you to tell you that it was here. The only time we were able to find you at all, according to my clerk's telling me, was when he found that you were in Division II. You were before the court handling some matters there.”
The reporter's transcript also contains the following colloquies:
“The Court: The point we are making, Mr. Clark, is the numbers that you left are ineffective if we call those numbers and cannot locate you and cannot get a message to you and you do not get the message; and that is why, when I order a case for a particular time, it cannot be incumbent upon me or upon my clerk to notify you that you have to come here. The way this court operates is, when things are set at a particular time, it is going to have to be your responsibility on a last day case to be here in this court.
“Mr. Clark: Your Honor, the best I can—
“The Court: I find I did give you notice that you did have to come.
“Mr. Clark: That is incorrect. The court did not instruct me to be here at 1:30.
“The Court: I maybe ordered that the matter was trailed until 1:30 this afternoon. Your client was ordered to be here. Your failure to appear at the scheduled time is, in my opinion, not a valid excuse; and it is punishable by a contempt because I feel I have no other way to respond to an attorney simply ignoring the order that the matter is trailed.
“Mr. Clark: That is incorrect, that I simply ignored the order, your Honor. The court indicated—
“The Court: I gave you an opportunity to be heard. If there is anything you would like to add—
“Mr. Clark: I am not sure what the court is asking me. The court asked me why wasn't I here at 1:30. My understanding was the court was going to call the case at 1:30, if, in fact, we had a court available. At the time I was here, there were no courts available. I requested at that time that this case be continued. The court was unwilling to continue the case and suggested the matter go over to 1:30. So the matter was put over to 1:30.
“The Court: I didn't suggest it. I ordered it.”
“The Court: If you had been here, we could have dealt with it. The point is, we didn't even start searching all over the courthouse because I expected you to be here at 1:30. I don't think that expectation was unreasonable. What I said at that time and place when I continued the case until 1:30 is a matter of record, Mr. Clark.
“Mr. Clark: My point being, once again, I was not ordered to be here at 1:30, your Honor.
“The Court: I don't think I have to order you specifically to be here. I think when I continue the case to a particular time and I order your client to be here and you don't say that you do not—or cannot be here, that is sufficient for purposes of you being expected to be here.
“Accordingly, under 177.5, I am ordering sanctions of $150. Probably should be a lot more than that when I consider the time that has been lost in the other court where the trial should be taking place.
“That is payable within two weeks to the clerk of the court.”
On the same date (August 20) the court prepared a written order reciting the facts in detail and imposing a $150 sanction.
(1) Attorney Clark did not violate any court order, as only defendant Curd was ordered to appear at 1:30 p.m. Clark acted reasonably in expecting he would be called by the clerk when a courtroom became available, especially in view of the prevailing practice in the Compton courthouse (which this particular department has decided not to follow) to proceed in such manner.
(2) Insufficient notice and opportunity to be heard was provided to Clark prior to the imposition of the sanction. (Section 177.5 provides for imposition of sanction “on the court's own motion, after notice and opportunity to be heard.”) Clark claims a noticed hearing should have been conducted as “mentioning sanctions during the middle of the hearing, and imposing them at the end of the hearing, cannot satisfy the notice requirement.”
(3) Section 177.5 sanctions cannot be applied in a criminal case.
In March of this year, Division One of the Fourth District decided People v. Tabb (1991) 228 Cal.App.3d 1300, 279 Cal.Rptr. 480. There, the municipal court sanctioned a deputy public defender $75 under section 177.5 for failing to timely appear at his client's preliminary hearing. The appellate department affirmed the sanctions order but certified the case to the Court of Appeal, which also affirmed. Apparently no petition for review was filed.
In Tabb, the Court of Appeal held (1) section 177.5 was fully applicable to criminal proceedings, and (2) “No separate order commanding an attorney to be present to appear for his or her client on such a routine matter [viz., a scheduled court hearing] should be or was required.” (Id., at pp. 1310–1311, 279 Cal.Rptr. 480.) Hence where counsel has a clear duty as an officer of the court to act in a certain way, non-performance of that duty may constitute a violation of a court order for purposes of section 177.5.
In the instant petition, Clark takes issue with both holdings in Tabb, and urges the decision is “clearly erroneous,” “quite wrong,” and “astonishing.”
We note that Division Five of this court in July 1991 decided Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 283 Cal.Rptr. 857 which cited with approval the Fourth District Court of Appeal decision in Tabb on the question of the applicability of section 177.5 to criminal as well as civil proceedings. (Id., at p. 1080, fn. 3, 283 Cal.Rptr. 857.) We go further than Seykora and cite with approval the entire decision. Petitioners' attack on the Tabb decision we find to be unmeritorious.
To grant the requested writ in this case would be to clearly elevate form over substance without due regard to the circumstances of this case. Attorney Clark was an experienced deputy public defender regularly assigned to the courtroom of Judge Smaltz who inferentially was hearing only criminal matters. We judicially notice the fact that the criminal caseload in the Compton Courthouse (South Central branch) is one of the most burdensome in the entire state with criminal cases being assigned or placed for trial on the last day before the case is subject to a mandatory dismissal for statutory untimeliness in bringing the case to trial. The record clearly reflects that the posture of defendant Curd's criminal case was typical in that it had to be assigned for trial as a “last day case.”
Under the exigent circumstances, fully appreciated by deputy public defender Clark, we find it to be a strained argument that an order for his client to return to court at 1:30 was not also effective as an order that attorney Clark return, particularly as neither attorney Clark nor his client had appeared when the court had called the regularly set matter at 8:30 a.m. on the same day. It cannot be seriously questioned that Judge Smaltz was apprehensive about getting the case out for trial on the last available day.
We hold that under the exigent circumstances of this case, attorney Clark, and any other reasonable attorney, would clearly interpret the court's order for Curd to appear as an order that his attorney also appear at the stated time. There is no merit to Clark's contention that the predicate order was not given as a condition precedent to imposition of sanctions.
Similarly, Clark's remaining contentions have no merit. In agreement with Tabb and Seykora, we conclude that section 177.5 is fully applicable to criminal proceedings. Clark is correct in contending that section 177.5 requires notice and opportunity to be heard to satisfy both the requirements of the statute and constitutional due process. However, his argument that he was denied due process in this instance is unmeritorious. Section 177.5 does not afford Clark the right to call witnesses to testify and to present evidence. We do not deem section 177.5 to be the counterpart of a contempt proceeding which would trigger the right to the protection of the panoply of constitutional provisions afforded the accused in a criminal case. Nor do we consider the requirements of section 177.5 to be as stringent as those contained in section 128.5 which provides for sanctions to the opposition vice the county.
For instance, in certain portions of section 128.5, a “subjective” finding of lack of good faith is required before a predicate is laid for imposition of sanctions. Under section 177.5 only a violation of an order “without good cause or substantial justification” is required. We conclude that this requirement is an “objective” one only and not the more burdensome requirement of subjective intent. Finally, there is no stated monetary limit in the sanctions or penalties under section 128.5 whereas section 177.5 limits the amount of monetary sanctions to $1,500.
In conclusion, the court made an order which under the circumstances could only be reasonably interpreted as directed inclusively to attorney Clark, there was a violation by his failure to appear at the stated time without justification in these exigent circumstances, notice and opportunity to be heard was extended to him consonant with the less stringent requirements of section 177.5 (as compared with contempt or the requirements of section 128.5), and the order entered by the court immediately following the hearing setting forth in a detailed fashion the action taken was sufficient.
The petition for a peremptory writ of mandate is denied. The alternative writ issued by this court on the 10th day of October, 1991 is discharged.
I respectfully dissent.
This petition is being heard by this court on remand from the California Supreme Court. When the petition was originally considered by this division, I joined with my colleagues in summarily denying the petition. However, upon more closely reviewing the case—and particularly the transcript of the hearing in the trial court—I fully understand why our State's high court returned it to us for reconsideration.
I would grant the petition for two, interrelated reasons. First, the proceedings in the trial court deprived the petitioner of due process of law by furnishing inadequate notice. Secondly, the trial court denied due process by deciding to impose sanctions before affording petitioner a fair opportunity to offer a defense.
The majority opinion implies that since Code of Civil Procedure section 177.5 1 only allows monetary sanctions up to $1500 instead of the jail sentence that may accompany a finding of contempt, we can dispense with most of the usual due process protections. The notice can be given in the same breath as the order imposing sanctions instead of being given sufficiently in advance that the alleged offender can have enough time to prepare a defense. The trial court can make up its mind before the alleged offender has an opportunity to present a defense. And the alleged offender need not be given an opportunity to present evidence to support his defense.
In Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal.App.3d 1380, 278 Cal.Rptr. 583, Division 1 reversed a section 177.5 sanction order specifically because the trial court failed to accord due process in a hearing which closely resembles the hearing in the case before this court. In that case, the court established some minimal due process requirements for section 177.5 hearings. First, it held there must be adequate notice. Furthermore, it required the trial court to avoid deciding to impose sanctions until it had fully heard, with an open mind, the alleged offender's defense. “Although we are not prepared to say that a formal order to show cause is required, we do say with certainty that the notice must be given before findings are made and at a time preceding the trial judge's decision whether, in fact, to impose sanctions. (Citation omitted.)” (227 Cal.App.3d at p. 1387, 278 Cal.Rptr. 583, italics in original.)
The Bergman court then held an appellate court should reverse a sanctions order where its review of the transcript of the proceedings below reveals the trial court gave insufficient notice or had made up its mind to impose sanctions before hearing the alleged offender's defense. As the court characterized what happened in that case: “[The trial judge's] findings preceded his review of Mr. Gross's explanation and, ․ the judge had made up his mind before he heard [the trial attorney's] evidence․ Fairness requires a different approach.” (Ibid.)
The transcript of the hearing in Deputy Public Defender Clark's case reveals a proceeding that fails on both counts identified as critical to due process in the Bergman opinion. Indeed the transcript in this case provides a good illustration of how not to conduct a section 177.5 hearing. The relevant portion of the transcript reads as follows:
“THE COURT: I had ordered this case back at 1:30 this afternoon. Mr. Curd [the defendant] appeared at 1:30. The District Attorney's Representative, Mr. Gale, was here—I think it was about a quarter till [sic ], and Mr. Clark did not appear. [¶] Would you like to be heard with respect to why you were not here, sir?
“MR. CLARK: To begin with, Your Honor, it was not my understanding that I was ordered back here at 1:30.
“THE COURT: What was your understanding?
“MR. CLARK: That the case had been put over until 1:30.
“THE COURT: When did you think you were supposed to be here?
“MR. CLARK: Well, your Honor, when I appeared here this morning, I informed the court as well as the clerk that I had several prelims. I gave the clerk the division numbers of each of those preliminary hearing courts. It was my assumption that, if the court needed me, that they would call me in one of those courts, and I would get the message; and then I would appear here.”
[The conversation between the trial judge and Deputy Public Defender Clark continues in this vein for another two pages of transcript. Then the trial court for the first time makes an announcement converting this to a hearing on sanctions.]
“THE COURT: All right. It is my intention to impose sanctions on you under 177.5 of the CCP, Mr. Clark. [¶] If you would like to be heard any further, I would be glad to give you more time to do that; but it is my belief that I set this matter over at 1:30. I ordered your client to be here, and I instructed you to be here so that I could find another court; and I would notify you at 1:30 to let you know whether the case could be sent out․”
[The trial judge continues for another transcript page announcing her findings and justifying her decision to impose sanctions, followed by four pages of argument between the judge and Deputy Public Defender Clark, culminating in the following pronouncement.]
“THE COURT: Accordingly, under 177.5, I am ordering sanctions of $150. Probably should be a lot more than that when I consider the time that has been lost in the other court where the trial should be taking place.”
As this transcript reveals, the trial court did not afford Deputy Public Defender Clark notice it was imposing sanctions until after there had been discussion of what had happened that the judge then immediately announced as the sole grounds for those sanctions. So the notice which due process requires precedes consideration of whether grounds for sanctions exist actually came after the judge determined what happened justified imposition of a monetary penalty on Clark. Returning to what the Bergman court held, “notice must be given before findings are made and at a time preceding the trial judge's decision whether, in fact to impose sanctions.” (Bergman v. Rifkind & Sterling, supra, 227 Cal.App.3d at p. 1387, 278 Cal.Rptr. 583, italics in original). Here the trial court gave notice and announced its findings simultaneously.
Furthermore, as in Bergman, the transcript provides ample evidence “the judge had made up his mind before he heard [the trial attorney's] evidence.” (227 Cal.App.3d at p. 1387, 278 Cal.Rptr. 583.) While the trial court followed its belated “notice” with an offer to Clark that he could be heard “further,” the judge immediately pointed out her own “belief” Clark had disobeyed her order and launched into a full exposition of her findings and justification for her decision to impose sanctions. Eventually, Clark was forced to interrupt the trial judge's recitation of her findings just to have a chance to quarrel with the court's interpretation of the facts. That is as close as Clark came to having an opportunity to offer the promised “further explanation.” In any event, once the court began justifying its decision and announcing its findings, the trial court's offer to hear further from Clark had little meaning. As any trial lawyer knows, an opportunity to argue a judge out of a decision he or she has already reached or of findings he or she already has made is not much of an opportunity at all. Yet that is all Deputy Public Defender Clark was given. Due process requires more.
While either of these two due process violations would be enough by itself to justify reversal of this sanction, there is a further constitutional defect in the proceedings. Clark alleges in his writ petition facts which, if true, would have constituted a defense to his alleged failure to abide by the trial court's order. The section 177.5 sanction was expressly grounded on the court's finding an order requiring a defendant to appear at a time certain also constitutes an order requiring the defense counsel to appear at that time. Clark alleges he could produce evidence that at the time of this hearing there was an established practice accepted by judges in the Compton courthouse for public defenders not to come to the courtroom at the time their clients were ordered to appear in court. Instead, under this established practice, the defense lawyers remained on call so they could attend to their responsibilities either in other courtrooms or in their offices working on the other cases in their caseload. Accordingly, Clark claims he was merely complying with this practice and not flaunting the court's order when he did not accompany his client to court at 1:30 P.M. the afternoon of August 20, 1991.
If Deputy Public Defender Clark had been given the advance notice due process requires, it might be reasonable to say this defense comes too late. But the courts cannot on the one hand deny a person the notice necessary to prepare a defense and the opportunity to put on evidence to prove its existence and then, with the other hand, refuse to consider this defense on grounds it comes too late when he finally has the time required to put the defense together. To take that position is to compound the initial deprivation of due process.
In any event, the majority opinion does not rely on a claim this defense comes too late. Instead that opinion holds the due process requirement of an “opportunity to be heard” does not embrace the opportunity to call witnesses or present evidence in one's defense. (Maj. opn. at p. 777.) This is an extraordinary proposition which transforms the guarantee of an “opportunity to be heard” into a meaningless phrase devoid of content. Indeed it is inconsistent with the essence of the constitutional right. “The right to a hearing includes the right to produce evidence and to cross-examine adverse witnesses.” (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 503.) Moreover, the majority's expressed view on this issue flies in the face of the Legislature's insistence section 177.5 contain express language guaranteeing not only notice but an “opportunity to be heard” rather than relying on the implicit constitutional protections enjoyed by any person subject to judicial proceedings of any sort.2
It may be true that in some cases the alleged offender would be unable to tender any testimony or other evidence as to any fact which would be relevant to a finding of whether sanctions were warranted. In such cases, the failure to allow or hear evidence would be harmless. But where testimony or other evidence would be relevant to the question of whether a court order indeed was disobeyed, due process requires an opportunity to present it.
In this case, there are factual questions which cannot be resolved fairly without hearing evidence. The trial court based its sanction on grounds Clark disobeyed an order requiring the defendant he was representing to appear at a certain time. The judge construed the language of the order directed at the defendant as an order also directed at the deputy public defender requiring his attendance with his client at that time. Clark alleges the facts were different, at least up to that time in the history of the Compton Courthouse. He claims to be in a position to produce evidence there was a generally accepted practice which meant an order to a defendant to appear at a certain time did not require the public defender to appear at that time. In order to allow public defenders to manage their overwhelming caseloads, they were allowed to remain on call attending to other, often pressing matters like representing other clients in hearings in other courtrooms or preparing still other cases for future hearings.3 If true, this was an absolute defense to the court's section 177.5 sanction which was expressly imposed for failing to appear with the defendant at 1:30 P.M. on the afternoon of May 20. Under Clark's version, the order to the defendant did not require Clark's attendance in that courtroom at 1:30 and thus he did not disobey the order by failing to appear at that time. The only way to establish the existence of this purported practice was to allow testimony or other evidence from one or more witnesses who were familiar with it—whether that be other judges, the deputy public defender in charge, any written memorandum on the topic, etc.
For all these reasons, I am convinced the trial court denied Deputy Public Defender Clark the due process guaranteed by statute in section 177.5 itself and by the United States and California Constitutions. Were I in the majority, I would remand this case to the trial court for a properly noticed hearing where Clark had the time and opportunity to present testimony or other evidence in defense of the charge his failure to appear at 1:30 P.M. constituted disobedience to the trial court's order advising his client to appear at that time.
FN1. All statutory references are to the Code of Civil Procedure.. FN1. All statutory references are to the Code of Civil Procedure.
2. Section 177.5 provides: “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.”
1. Unless otherwise indicated all future references are to the Code of Civil Procedure.
2. The majority opinion somehow concludes section 177.5 hearings require less “due process” than hearings considering section 128.5 sanctions or contempt citations. In doing so, the majority appears to overlook the Legislature's obvious intent. It is section 177.5 not section 128.5 which contains an express statutory guarantee that the sanction cannot be imposed unless and until the alleged offender has been given a full measure of due process—adequate notice and a meaningful opportunity to be heard. (§ 177.5 also differs from § 128.5 in providing the sanction is to be paid to the People not the opposing party.)Section 177.5 provided a new and arguably less stringent grounds for imposing sanctions. It did not, however, relax the procedures for determining whether those grounds have been established in a given case. To the contrary, the California Legislature saw fit to emphasize the traditional due process protections are in full force and effect in all section 177.5 hearings.
3. The majority opinion continually stresses the heavy judicial caseloads in the Compton Courthouse as “exigent circumstances” justifying the cursory nature of the proceedings in this case. (See maj. opn. at pp. 776, 777.) Ironically, it is this very heavy caseload—especially the heavy burden imposed on the public defenders in that courthouse—which Clark contends is the reason behind the accepted practice of allowing deputy public defenders to work on other hearings and other cases rather than automatically appearing at the time and in the courtroom to which a given defendant has been ordered to appear. Otherwise, deputy public defenders would be wasting time waiting around with defendants in courtrooms when that time could be better spent representing other defendants in other hearings or preparing for still other cases. Thus, this purported practice advances the best interests of the Compton courthouse by maximizing the time of a limited force of public defenders.The majority opinion also points out the specific case involved here was a “last day” prosecution as a reason for overlooking the procedural niceties in imposing sanctions. (See maj. opn. at p. 776.) Ironically, once again, according to Clark's statement to the judge he was with another “last day” defendant, this one charged with murder, preparing for that defendant's preliminary hearing when the clerk finally located him and transmitted the court's request he come to the courtroom immediately. Without evidence, we have no reason to assume the fact the instant prosecution was a “last day case” made it so unusual as to suspend a general practice of allowing deputy public defenders, like Clark, automatically to remain “on call” when their clients were ordered to appear in a given courtroom at a given time.
FRED WOODS, Associate Justice.
LILLIE, P.J., concurs.