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


Civ. 20212.

Decided: April 22, 1954

Lowell Lyons, Los Angeles, A. Brigham Rose, Los Angeles, of counsel, for petitioner. Harold W. Kennedy, county counsel, John B. Anson, David D. Mix, deputies county counsel, Los Angeles, for respondent.

This is a proceeding in certiorari to review an order of the respondent court adjudging petitioner guilty of contempt of court.

Petitioner, an attorney at law, was representing a defendant in a case entitled People of the State of California v. Frank Pardini, which was on trial before the respondent court on February 24, 1954. After the noon recess he did not appear at two o'clock when the court reconvened, and thereafter the following commitment for contempt was signed by the trial judge:

‘Be it remembered, that on February 24, 1954, there was pending and on trial before the court and jury in Department 43 of this court a criminal prosecution and trial entitled People v. Frank Pardini, No. 160665, in which said Lowell Lyons, a member of the State Bar, was sole counsel for the defendant.

‘That at the hour of 12 noon of said date the court ordered a recess of said trial until 2 p. m. of the same day, said order being made orally, the hour being twice repeated in a tone sufficiently loud to be heard in every person in the court room and that at the time said Lowell Lyons was at the counsel table within 20 feet of the bench and that 2 p. m. is the regular established hour for the resumption of trials after noonday recesses.

‘That at the hour of 2 p. m. on said day the Court resumed the bench and the jury was in the jury box and the prosecuting attorney and witnesses were present in the court room but said Lowell Lyons failed to appear although said counsel had the ability to do so and that said counsel did not appear in said court room until the hour of 2:45 p. m., whereupon the Court, the jury having retired to the jury room, inquired of said Lowell Lyons whether there was any cause why he should not be punished for contempt, to which said Lowell Lyons responded that he had been asleep. That said statement was not supported by any evidence or testimony and which statement the Court declined to believe. That on not less than ten prior occasions the said Lowell Lyons has either been substantially late or wholly failed to attend said Court in Department 43 at times when cases in which he was counsel of record were set for trial or other proceedings when his presence was necessary and that on October 28, 1953, said Lowell Lyons was adjudged guilty of contempt of court for failing to appear in said Court, in a trial in which he was counsel of record and which was set for trial at 9:30 a. m. until the hour of 9:55 a. m. and for which contempt said Lowell Lyons was sentenced to serve twenty-four hours in the County Jail of said County, which sentence was suspended, with an admonition against a repetition of such conduct.

‘Therefore, it is ordered and adjudged that said Lowell Lyons is guilty of contempt of Court and sentenced to serve five days of twenty-four hours each in the County Jail of this County.

‘Dated: February 24, 1954,

‘Charles W. Fricke, Judge of the Superior Court.’

Questions: First: Is the foregoing order a valid order of commitment for contempt committed in the presence of the court?

Yes. A valid order for contempt of court occurring in the presence of the court must recite facts which show the actual occurrence of contempt and state that they happened in the immediate view and presence of the court or judge. It must state facts and not mere conclusions. (Overend v. Superior Court, 131 Cal. 280, 284 et seq., 63 P. 372; In re Wells, 29 Cal.2d 200, 202[3], 173 P.2d 811; In re Mackay, 140 Cal.App. 400, 402 [3], 35 P.2d 385; Cf. Otis v. Superior Court, 148 Cal. 129, 130, 82 P. 853.

In the present case the applicable rule pertaining to an order punishing an attorney for contempt of court for failure to appear at the time of trial is succinctly stated by this court in In re Mackay, supra, 140 Cal.App. at page 402, 35 P.2d at page 387, as follows: ‘In the instant proceeding it should have been recited, not merely that the attorney was not present at the hour for court to convene or for some time thereafter, and that he failed to give any sufficient excuse therefor, but also what excuse he did give, if any, and, if none, what was said and done showing affirmatively that he had opportunity to present an excuse.’

Here the commitment conforms to the requirements of the rule above stated. It is recited that petitioner was present in court, ordered to return to the court at 2:00 p. m., did not return, was interrogated as to the reasons for his not returning to which he replied that he was asleep; no reason or excuse was given for his being asleep, and the trial court declined to believe petitioner's statement in view of the fact that on ten prior occasions petitioner had either been substantially late or wholly failed to attend court at times when he was attorney of record in cases and his presence was necessary, and that in fact on one previous occasion he had been guilty of contempt of court in a case in which he was attorney of record.

Clearly these facts all set forth in the commitment constituted a contempt of court, and the order is valid.

Second: Did defendant's contemptuous conduct constitute a direct contempt committed in the presence of the court?

This question need not be answered for the reason that petitioner waived any technical objection there might be to the court's jurisdiction by requesting the court to hear him upon the matter of contempt and by presenting to the court his purported excuse for having been late. Therefore it is immaterial whether the contempt was a direct contempt or an indirect contempt, and petitioner has waived any right to urge error in not having the facts pertaining to the contempt set forth in affidavits and an order to show cause issued.

A petitioner is presumed to have waived any technical objections upon a hearing for contempt where he voluntarily appears and presents evidence and argues the matter to the court without calling to the court's attention any objections which he may have to having the matter heard. (In re McHugh, 152 Mich. 505, 116 N.W. 459, 461.)

In the cited case in 116 N.W. at page 461, the court accurately states the rule thus: ‘If the respondents had refused to appear in court, as was the case in Re Wood, 82 Mich. 75, 45 N.W. 1113, or if they had been arrested upon the capias and had denied the jurisdiction of the court for the reason that no affidavit or petition was presented to the court setting forth the facts, the respondents would have been in position to raise this question, but their conduct waived it. They voluntarily placed themselves in precisely the same position as they would have been if the proceeding had been such as they now contend was necessary.’ (Cf. Roe v. Superior Court of City and County of San Francisco, 60 Cal. 93, et seq.)

For the foregoing reasons the writ heretofore issued is discharged.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.

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