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


Civ. 18180.

Decided: December 07, 1950

Jeanette G. Donovan and John F. Donovan, in pro per. Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents.

Petitioners, John F. Donovan and Jeanette G. Donovan, were adjudged guilty of contempt on July 17, 1950, and were fined $2,000 and $4,500, respectively. On August 29, 1950, a writ of execution issued out of respondent court together with instructions to respondent marshal to levy upon the property of petitioner Jeanette G. Donovan. The levy was made and sale was set for October 2, 1950, but was continued to October 16th.

By the instant proceeding, petitioners seek to restrain such sale.

The contempt proceeding arose out of alleged violations of a permanent injunction issued upon a judgment entered on November 26, 1945, in favor of defendants on their cross-complaint in Donovan v. City of Santa Monica. Upon appeal, that judgment was affirmed by this court on November 10, 1948. 88 Cal.App.2d 386, 199 P.2d 51. The injunction therein restrained petitioners from using, occupying or maintaining the real property at 136 Georgina Avenue, Santa Monica, California, for any purpose other than a single-family dwelling. It also required the removal of several units and the reconversion of the main building into a one-family residence.

It is here urged that the Superior Court was without jurisdiction to render the judgment of November 26, 1945, because the matters adjudicated thereby were res judicata. This for the reason that these issues had been previously settled by a stipulation entered into during the trial of certain criminal cases in the Police Court of Santa Monica, dated April 25, 1940.

A copy of said stipulation is attached to the instant petition in prohibition. It is to the effect that the City of Santa Monica did not issue regularly denominated permits or licenses upon applications for construction work. But that the said city through its building department had ‘seen fit to construe through said application ‘receipt’ and inspection card as referred to above in this stipulation, to be a ‘permit’ or permissive right to proceed with the work.'

The main case in which the judgment of November 26, 1945 was rendered was for declaratory relief. The city filed a cross-complaint therein for injunctive relief, i.e., to prevent the use of the property in violation of various zoning ordinances. Donovan v. City of Santa Monica, supra, 88 Cal.App.2d 386, 199 P.2d 51.

Moreover, as stated in Balestreiri v. Arques, 49 Cal.App.2d 664, 669, 122 P.2d 277, 280: ‘* * * we know of no rule of law which would have prevented plaintiff from again raising, in a subsequent civil action between himself and defendant, any issues previously presented and passed upon in the criminal proceeding and having the court, in the subsequent civil action, render its independent judgment upon such issue. The issues previously determined in the criminal proceeding were not res judicata because the parties to the civil action were different from the parties to the criminal proceeding (15 Cal.Jur. 114, sec. 178; 30 Am.Jur. 1002, sec. 290) and no question of collateral attack was involved.’

As a further ground for issuance of the writ, petitioners assert that criminal proceedings against the officials of the City of Santa Monica are pending in the Federal Courts of this district, as well as in the Superior Court of Los Angeles County. That ground too, is insufficient to establish lack of jurisdiction in the court which rendered the judgment of November 26, 1945.

The sole province of the writ of prohibition is to arrest proceedings of a tribunal or persons exercising judicial functions, when without or in excess of jurisdiction.

The judgment hereinabove referred to has long since become final, and is conclusive as to the rights of the parties thereto.

The petition for writ of prohibition is denied.

I dissent,—but only for the reason that I believe the fines were excessive in the first instance. So much so that they were unusual and therefore void within the meaning and application of the Eighth Amendment to the Constitution of the United States, and section 6 of Article I of the Constitution of the State of California, which provide specifically that ‘excessive fines' shall not be imposed, nor ‘unusual punishments' inflicted. In effect, these fines are confiscatory.

DRAPEAU, Justice.

WHITE, P. J., concurs.

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