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Court of Appeal, Second District, Division 3, California.

Carl HELWIG, Plaintiff and Appellant, v. William E. RUSSELL, Defendant and Respondent.

Civ. B005977.

Decided: April 23, 1985

Oscar Toscano, Glendale, for plaintiff and appellant. Stephen Fluharty, Glendale, and Lawson M. Brown, Studio City, for defendant and respondent.


Plaintiff and appellant, Carl Helwig (appellant) purports to appeal from (1) a superior court judgment which held him in civil contempt for violating an injunction prohibiting him from harassing defendant and respondent William E. Russell (respondent) and (2) from that portion of a court order which directed him to pay respondent's attorney's fees.   We dismiss the appeal from the contempt judgment, deem the purported appeal from the order regarding attorney's fees to be a petition for writ of certiorari and, after review, direct the superior court to vacate its award of attorney's fees to respondent.


Appellant sought an injunction from the superior court prohibiting respondent from harassing him.   On June 28, 1983, the court issued mutual restraining orders, effective that date, prohibiting appellant and respondent from harassing each other.   Thereafter, the court signed a court form entitled “Order After Hearing on Petition for Injunction Prohibiting Harassment” which had printed thereon:  “VIOLATION OF THIS ORDER IS A MISDEMEANOR.”  (See Code Civ.Proc., § 527.6.) 1  On August 5, 1983, respondent filed an application with the court for an order directing appellant to show cause why he should not be held in contempt for violating the mutual restraining order.   On that date, the court issued its order for appellant to show cause why he should not be held in contempt, fined $500 and/or imprisoned for five days, as well as pay respondent's court costs and attorney's fees.

The hearing on the order to show cause re contempt was held on August 16, 1983.   According to the evidence presented at trial, on July 23, 1983, appellant approached respondent's car and said, “ ‘I'm going to get you, and don't forget it․  The next time you put your key in the ignition, you better check under the hood because I was a demolition expert in the war, and I'm going to get you.’ ”

Marian Samuels, an employee of the answering service of respondent's attorney, testified, over appellant's objection, that on July 23, 1983, she took a message for respondent from a male who identified himself only as “C.H.”   The message was, “After Bill, you are next.   Don't you forget it.”

Appellant testified on his own behalf and denied making either threat.

After hearing all the evidence, the court adjudged appellant to be in contempt of court and sentenced him to serve five days in county jail.   Appellant served but two days of his sentence.   On August 17, 1983, the court ordered the three remaining days of the sentence suspended, on condition that appellant enroll in a counseling program.   On August 23, 1983, the court ordered appellant to pay respondent's attorney's fees in the sum of $3,500 plus $118 in costs.


Appellant contends:

1. The evidence is insufficient to support the verdict.

2. The testimony of Marian Samuels was inadmissible hearsay.

3. Since he was adjudged guilty of criminal contempt, he was entitled to a jury trial.

4. The court was biased and prejudiced against him.

5. The court should have disqualified itself from hearing the attorney's fees question because it was biased and prejudiced.

6. The attorney's fees awarded respondent were unreasonable.


The contempt judgment.

Penal Code section 166 provides:  “Every person guilty of any contempt of Court, of either of the following kinds, is guilty of a misdemeanor:  ․ [¶] 4. Willful disobedience of any process or order lawfully issued by any Court.”

 Under this section, the prohibited act is both a contempt and a misdemeanor.   The mere fact that the Legislature has seen fit to declare such a contempt also a misdemeanor does not deprive the court of the power to punish such an act as a constructive contempt 2 in a summary proceeding.  (In re San Francisco Chronicle (1934) 1 Cal.2d 630, 636, 36 P.2d 369;  In re Morris (1924) 194 Cal. 63, 227 P. 914.)

Here, the court chose to treat the matter as a constructive contempt rather than as a misdemeanor offense over which it would have had no jurisdiction.   (See In re McKinney (1968) 70 Cal.2d 8, 13, 14, 73 Cal.Rptr. 580, 447 P.2d 972;  People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 982, 168 P.2d 497.)

The court proceeded under Code of Civil Procedure section 1209 which provides:  “(a) The following acts or omissions ․ are contempts of the authority of the court:  ․ [¶] 5. Disobedience of any lawful judgment, order, or process of the court.”

 Although it has been said that, if the primary object of a contempt proceeding is to protect the rights of litigants it is regarded as civil in character and if the object of the proceeding is to vindicate the dignity or authority of the court it is regarded as criminal in character (Morelli v. Superior Court (1969) 1 Cal.3d 328, 333, 82 Cal.Rptr. 375, 461 P.2d 655), that characterization is misleading because both types are civil contempt proceedings arising under Code of Civil Procedure section 1209.   (California Judges' Benchbook—Civil Trials (1981) § 11.9.) 3

 While an appeal may be taken from a conviction of criminal contempt under the Penal Code (In re Buckley (1973) 10 Cal.3d 237, 259, 110 Cal.Rptr. 121, 514 P.2d 1201, cert. den. 418 U.S. 910, [94 S.Ct. 3202, 41 L.Ed.2d 1156];  14 Cal.Jur.3d, Contempt, § 76, pp. 135–137), no appeal may be taken from a final and conclusive judgment of civil contempt (Code Civ.Proc., §§ 904.1, 1222).   Thus, appellant's purported appeal from the contempt judgment must be dismissed.

The order imposing attorney's fees.

 Appellant purports to appeal from that part of the trial court's separate order of August 23, 1983, which directed him to pay respondent's attorney's fees in the amount of $3,500.4  That order, which awarded respondent both attorney's fees and costs is likewise nonappealable.   (Code Civ.Proc., § 904.1.)   However, we deem the purported appeal to be a petition for writ of certiorari (see Code Civ.Proc., § 1074;  5 Witkin, Cal. Procedure (1971) Extraordinary Writs, § 25, p. 3799;  6 Witkin, Cal. Procedure (1971) Appeal, § 35, p. 4049), so that we may review the order, inasmuch as the trial court exceeded its authority in making an award of attorney's fees to respondent.   For purpose of review, the entire relevant superior court file is made of record before this Court.  (See In re Blaze (1969) 271 Cal.App.2d 210, 211, 76 Cal.Rptr. 551.)

 It is well settled that “ ‘[a]ttorney's fees are not recoverable from the opposing party in the absence of an express statutory provision or a contractual agreement that they be paid.’  [Citations.]”  (City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 190 Cal.Rptr. 918, 661 P.2d 1072, adopting opinion at (1982) 31 Cal.3d 527, 537, 183 Cal.Rptr. 86, 645 P.2d 137;  Code Civ.Proc., § 1021.)   Here, no statute nor agreement between the parties authorized the court to make an award of attorney's fees to respondent and none of the judicially recognized exceptions to the general rule precluding such an award of fees (see Gray v. Don Miller & Associates (1984) 35 Cal.3d 498, 505, 198 Cal.Rptr. 551, 674 P.2d 253) apply to this situation.5  The creation of another judicial exception in this case would pose serious due process problems.  (Cf. Bauguess v. Paine (1978) 22 Cal.3d 626, 637–639, 150 Cal.Rptr. 461, 586 P.2d 942;  California Judges' Benchbook—Civil Trials, supra, § 11.66.)   For these reasons, we hold that the award of attorney's fees to respondent following the contempt judgment exceeded the limits of the trial court's power.


Appellant's appeal from the August 16, 1983, contempt judgment is dismissed.   The superior court is directed to vacate that part of its August 23, 1983, order which requires appellant to pay respondent's attorney's fees.   Each party to bear his own costs on review.


1.   Prior to 1981, subdivision (i) of Code of Civil Procedure section 527.6 provided:  “Any willful disobedience of any temporary restraining order or injunction granted under this section shall be a misdemeanor pursuant to Section 166 of the Penal Code.”   The 1981 amendment (Stats.1981, ch. 182, p. 1101, § 2) inserted “Section 273.6 of the Penal Code” for “Section 166 of the Penal Code.”   In this case, the printed form prohibiting harassment which the court signed did not reflect this change.   In fact, the form was not revised by the Judicial Council until January 1, 1985.  (See 15A Wests' Ann.Code Civ.Proc., § 527.6 (1984 pocket supp.) pp. 150–151.)

2.   The difference between direct and indirect contempt is that direct contempt is committed in the presence of a court while indirect, or constructive, contempt is committed outside the presence of the court.   (In re McKinney (1968) 70 Cal.2d 8, 10, fn. 2, 73 Cal.Rptr. 580, 447 P.2d 972;  see Code Civ.Proc., § 1211.)

3.   However, civil contempt proceedings, whether punitive (Code Civ.Proc., § 1218) or coercive (Code Civ.Proc., § 1219), are criminal in nature, because of the penalties that may be imposed, and constitutional requirements of due process must be observed.  (See California Judges' Benchbook—Civil Trials, supra, §§ 11.9, 11.40, 11.62.)

4.   Appellant contends only that the award of $3,500 in attorney's fees to respondent was unreasonable;  he does not challenge the very power of the court to order him to pay any of respondent's attorney's fees.

5.   Code of Civil Procedure section 527.6, subdivision (h), on which respondent relies, provides the prevailing party in an action brought under section 527.6 may be awarded court costs and attorney's fees.   That provision, however, refers only to the prevailing party in an action brought to impose a temporary restraining order and an injunction prohibiting harassment under the section.  Section 527.6 contains no provision for an award of attorney's fees to the party prevailing in a contempt proceeding should the order be violated.   The only portion of section 527.6 which pertains to willful disobedience of a temporary restraining order or injunction granted under section 527.6 is subdivision (i) (see footnote 1) which makes no provision for an award of such fees.

ARABIAN, Associate Justice.

LUI, Acting P.J., and DANIELSON, J., concur.

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