MORELLI v. BERRY

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Court of Appeal, Second District, Division 5, California.

Dino A. MORELLI, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Charles BERRY et al., Real Parties in Interest.

Civ. 33925.

Decided: March 17, 1969

James Jess, Los Angeles, for petitioner. John D. Maharg, County Counsel, and Jean Louise Webster, Deputy County Counsel, for respondent. Meserve, Mumper & Hughes, and John Deacon, Los Angeles, for real parties in interest.

This matter was previously before this court in Morelli v. Superior Court of Los Angeles County (1968) 262 Cal.App.2d 262, 68 Cal.Rptr. 572. Reference is made only to those facts related therein which are necessary for our analysis. That decision was rendered on May 17, 1968. This order to show cause in re contempt proceeding stems from a civil action, Berry et al. v. Mobile Vacuum Co. et al., Los Angeles Superior Court, No. SO C–14164, and petitioner was a non-party witness. After the rendition of the previous decision on May 17, 1968, but before June 25, 1968, the real parties in interest (plaintiffs in the civil action) who had initiated the contempt proceeding dismissed their action with prejudice and advised the trial court that such a dismissal had been filed.

Nonetheless on June 25, 1968, the court below upon its own motion issued an order to show cause in re contempt,1 based on the original order to show cause dated November 2, 1967, and its supportive affidavit, which ordered the petitioner Morelli to show cause on August 9, 1968, why he should not be held in contempt for failure to obey the subpoena duces tecum involved. Morelli did not appear, either in person or by attorney, on August 9, 1968. The court, thereupon, ordered inter alia that a bench warrant serviceable forthwith be issued for Morelli's arrest. It fixed bail on the warrant in the sum of $5,000.00, plus penalty assessment.

Further follow-up proceedings took place on September 13, September 30, and October 29, 1968. On September 13, 1968, the court ordered, ‘The bench warrant heretofore issued will be ordered again executed, it being now in the hands of the Sheriff, and bail remains as heretofore fixed.’ When Morelli again failed to appear on October 29, 1968, the date to which the proceeding had been continued, the court ordered another bench warrant to be issued, with bail thereon fixed at $5,000.00, plus penalty assessment; but further ordered that the sheriff need execute but one warrant with bail fixed at $5,000.00, plus penalty assessment. Certain other proceedings attempting to disqualify the trial judge under sections 170.6 and 170, subdivision 5, of the Code of Civil Procedure were had, but are not of moment in the light of the conclusion which we ultimately reach herein. No actual service of either ‘$5,000 warrant’ had been effected. Petitioner's present counsel attempted to limit his appearance to that of a special appearance, as did a former counsel for petitioner. In short, the contempt proceeding was continued, and the petitioner applied to this court for relief.

The county counsel is correct in urging that we may not at this stage go behind the previous decision of a different division of this court rendered in Morelli v. Superior Court of Los Angeles County, supra. The court there stated at 262 Cal.App.2d 270, 68 Cal.Rptr. 578: ‘[W]e must emphasize the fact that the respondent court still has jurisdiction to hear and determine the charge that Morelli is in contempt of court for failing and refusing to obey the subpoena duces tecum, and has the duty to permit Morelli to appear by his attorney without requiring him to appear personally.’

The determinative fact in the instant hearing is the supervening dismissal with prejudice of the main civil action, Berry et al. v. Mobile Vacuum Co. et al., Los Angeles Superior Court No. SO C–14164. As previously related, this dismissal was not filed until after the rendition of the previous decision on May 17, 1968. The previous opinion denotes that the contempt proceeding was considered to be of that type known as a ‘civil contempt.’2 A ‘civil contempt’ is one in which the primary objective is the enforcement or protection of private rights of the litigants, whereas a ‘criminal contempt’ is one directed primarily to the maintenance of the dignity and authority of the court. (See: In re Morris (1924) 194 Cal. 63, 66, 227 P. 914; 2 Witkin, Calif.Proc. (1954), pp. 1729–1730; 12 Cal.Jur.2d, Contempt, § 5, p. 9; Black's Law Dictionary (4th ed., 1957) p. 390.)

It is established that when the primary action, out of which the ancillary contempt proceeding stems, is abated or terminated, the jurisdiction of the court to punish for a ‘civil contempt’ terminates. In Harris v. Texas & Pacific Ry. Co. (7 CA, 1952) 196 F.2d 88, 90, the court of appeals ordered the lower court to vacate its order adjudging a non-party witness in contempt for disobeying a subpoena duces tecum to produce certain medical reports and to quash the subpoena duces tecum, because the main case had been terminated by judgment and satisfaction. No California case presenting a factual situation analogous to the instant case has been found, but the jurisdictional principles applied in the Harris case have been recognized by decisions of this state. (Cf. Schultz v. Superior Court in and for Los Angeles County (1945) 69 Cal.App.2d 530, 532–533, 159 P.2d 417; Ex parte Overend (1898) 122 Cal. 201, 204, 54 P. 740; Ex parte Rowe (1857) 7 Cal. 175.)

Since the main action, Berry et al. v. Mobile Vacuum Co. et al., had been dismissed with prejudice and notice of this fact had been given to the trial court prior to issuance of the June 25, 1968, order upon its own motion,3 it acted beyond its jurisdiction. That order of June 25, 1968, was therefore void and all bench warrants predicated thereon are likewise ineffectual.

The apparent affront to the superior court gives understanding to the trial judge's concern in the enforcement of proper orders. It was not too much to expect that Morelli, a learned professor of the California Institute of Technology, who has appeared as an expert witness on numerous occasions in the trial courts, would extend more cooperation than he did to the courts and entertain a more conciliatory attitude toward the courts than is reflected by the record before us. We note, however, that from his viewpoint, he did not escape unscathed. The bail of $500.00, plus $75.00 penalty assessment, which he posted on January 9, 1968, when he was taken into custody by the sheriff on the first bench warrant, was ordered forfeited on January 11 or 12, 1968. (Morelli v. Superior Court of Los Angeles County (1968) supra, 262 Cal.App.2d 268, 68 Cal.Rptr. 572.) The record is devoid of any motion by the petitioner to set aside that forfeiture within the 180-day jurisdictional period specified by section 1305 of the Penal Code. A nonappealable summary judgment was entered on August 1, 1968, in the Municipal Court of the Los Angeles Judicial District (case No. SJ–655), which was a proper court even though the bond was to assure the petitioner's appearance in the superior court. (People v. Walling (1961) 195 Cal.App.2d 640, 650, 16 Cal.Rptr. 70.) Failure to comply with the provisions of section 1305 of the Penal Code within the time limit therein set forth precludes any relief as to that particular forfeiture in this proceeding. (See, e. g., People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380, 31 Cal.Rptr. 208.)

Petitioner and his counsel may well take heed that procedures for ‘civil contempt’ when properly executed, by counsel initiating the contempt proceedings and by the court called upon to adjudicate the issue, can result in punishment prescribed in section 1218 of the Code of Civil Procedure. (Code of Civ.Proc., §§ 1212, 1213, 1214.) Once the contemnor is brought into court in person, the court can make orders directly to him, thereby laying the basis for prosecuting him for a ‘direct contempt’ of a ‘criminal contempt’ type, in addition to the ‘civil contempt.’ A ‘criminal contempt’ does not die automatically with the conclusion of the case out of which it grew. (Dolley v. Ragon (1924) 67 Cal.App. 731, 732, 228 P. 664.)

Since the issue here is solely one of jurisdiction, the peremptory writs of prohibition and mandamus must be granted within the limits heretofore set forth.

Let writs of prohibition ordering the trial court to cease and desist from further prosecution of the pending contempt proceeding and of mandamus commanding it to recall and annul all bench warrants issued on the basis of the void order of June 25, 1968, and to quash the subpoena duces tecum, issue. Petition to reinstate the bail ordered forfeited is denied. The alternative writ heretofore issued is discharged.

FOOTNOTES

1.  There is some dispute whether effective service of this order was made on Morelli; resolution of this dispute is unnecessary, because of the disposition we make of this proceeding.

2.  The court stated at 262 Cal.App.2d 269, ——, 68 Cal.Rptr. 577: ‘The proceedings on January 19, 1968, were obviously a part of the proceedings based on the order to show cause. It has long since been settled that in a proceeding arising out of a civil action charging a person with contempt for failure to obey an order made in that proceeding, in this case the subpoena duces tecum, the court has no power to command the alleged contemnor to appear in person.’

3.  The real parties in interest did not request the court to re-institute the contempt proceeding.

AISO, Associate Justice.

STEPHENS, Acting P. J., and REPPY, J., concur.

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