GUE v. DENNIS (1946)

District Court of Appeal, Fourth District, California.

GUE v. DENNIS.

Civ. 3604.

Decided: February 14, 1946

Wright, Thomas, Dorman & Fox, of San Diego, for appellant. Thomas Whelan, Dist. Atty., and Carroll H. Smith, Deputy Dist. Atty., both of San Diego, and Pauline Nightingale and William Kaplan, both of Los Angeles, for respondent Labor Commissioner.

The respondent has moved to dismiss the appeal on the ground that it was taken from an order which was not appealable.

The respondent labor commissioner first filed in the superior court an affidavit concluding with a petition for an order requiring the appellant to appear and show cause why he should not be punished for contempt of the labor commissioner and certain subpoenas issued by him. The affidavit alleged that Dennis was a contractor on certain public works contracts with the United States Government, and also on certain public works contracts with the State Division of Highways; that under these contracts and certain statutes he was required to pay not less than the prevailing rate of wages applicable to the work performed, in accordance with schedules as set forth; that various statutes required him to keep records of wages paid in connection with these contracts and provided certain forfeitures as penalties; that he also had agreements with certain unions fixing the minimum wages to be paid to various classifications of labor; that the labor commissioner's office had received information, reports and complaints from several union organizations that Dennis was not paying the wage rates he was required to pay; that on receipt of said reports, complaints, and information the affiant, in his official capacity, had issued subpoenas requiring Dennis to appear at affiant's office in San Diego to testify in an investigation of said complaints, and to bring with him for examination and investigation certain payroll sheets and records; that these subpoenas had been served upon Dennis but that he had wilfully refused to obey them; and that the testimony of Dennis and the examination of these records are essential for the proper performance of the duties imposed upon the labor commissioner by law.

The court issued an order requiring Dennis to appear and show cause why he should not be adjudged in contempt of court and punished for his failure to obey the subpoenas thus issued. A demurrer was filed and argued, and was sustained, apparently on the ground that it was not contempt of court to refuse to obey a subpoena which had not been issued under authority of the court. See, People v. Latimer, 160 Cal. 716, 117 P. 1051. In its order, the court sustained the demurrer to the affidavit in so far as its use as a basis for the order to show cause theretofore issued was concerned, and expressly found and determined that Dennis ‘has not hitherto been guilty of contempt of this court.’ The court's order further stated that by stipulation of the parties the affidavit theretofore filed might be used, without the necessity of refiling, as the basis for a new order directing Dennis to appear on a certain date and to show cause why he should not be required to obey the subpoenas referred to in the affidavit. The next day the court issued such a new order. Affidavits were filed by both parties and after a hearing the court entered its order requiring Dennis to obey the subpoenas duces tecum theretofore issued by the labor commissioner (with an exception not material here) not later than a certain date, ‘or be adjudged in contempt’. This appeal was taken from that order.

In support of his motion the respondent argues that judgments and orders in contempt proceedings are not appealable, since section 1222 of the Code of Civil Procedure makes them final and conclusive. His brief cites cases which support that proposition but no argument is presented to the effect that this was a contempt proceeding. On oral argument, however, it was contended that this proceeding might later become the basis for a contempt proceeding and that section 1222 of the Code of Civil Procedure is, therefore, applicable.

It seems clear that this special proceeding was not a contempt proceeding. While it was first attempted to make it such, a demurrer was sustained which effectively ended it as such a proceeding. By stipulation of the parties, the same affidavit was permitted to be used without refiling but for a different purpose, and a different order to show cause was issued. This presented a new and different proceeding as the only one before the trial court. The hearing was had on the sole issue as to whether Dennis should be required to obey these subpoenas. While acting on that single matter, in making the order here appealed from, the court went beyond a decision on the issue presented and added the additional clause ‘or be adjudged in contempt.’ This was not only surplusage but it involved a matter which might never occur or be raised and which, if subsequently raised, would require a new and different proceeding based upon an entirely different showing. It can hardly be held that a court may shut off a right of appeal in all cases where a party is ordered to do something, by merely adding to its order the further statement that he will be adjudged in contempt if he fails to comply. There was no contempt proceeding here and no judgment or order was entered to which section 1222, Code of Civil Procedure, is applicable.

The respondent next contends that, assuming section 1222, C.C.P., to be inapplicable the order here in question is not such a final order as is appealable under the provisions of section 963, C.C.P., and that it is not one of the orders specially enumerated in subdivision 2 of that section. In support of this contention Union Oil Co. v. Reconstruction Oil Co., 4 Cal.2d 541, 51 P.2d 81, and Frost v. Superior Court, 41 Cal.App. 580, 183 P. 206, are cited. In the Union Oil Co. case, it was held that orders for an inspection and subsurvey of an oil well were not final because they were essential to the main issue in the case, which was with respect to a trespass by the defendant, and that these orders were but a necessary step in connection with the main issue. The questions involved in the orders were directly connected with the general subject of the litigation. In the Frost case, it was held that one of the steps in enforcing a judgment, an order requiring a judgment-debtor to appear before a referee and answer concerning his property, was not final and could not be reviewed on certiorari. This was merely a step in enforcing a judgment already obtained and there is nothing to suggest that the judgment thus sought to be enforced was not final or appealable. Other cases are cited where it has been held that orders to appear and testify and orders to produce evidence of various kinds, when made as a part of and incidental to a cause then pending, are merely interlocutory and are not appealable. A different situation here appears as the order in question was the only thing sought in the proceeding in which it was made, and it was not merely a step in connection with other pending issues. The distinction is pointed out in Ellis v. Interstate Commerce Commission, 237 U.S. 434, 35 S.Ct. 645, 646, 59 L.Ed. 1036, involving an order made on the application of the Interstate Commerce Commission. It was there said: ‘The order directs the appellant to answer certain questions propounded and to produce certain documents called for by the appellee. There is no doubt that this appeal lies. The order is not like one made to a witness before an examiner or on the stand in the course of a proceeding inter alios in court. * * * It is the end of a proceeding begun against the witness.’

In the early case of Adams v. Woods, 18 Cal. 30, the court, on application, had ordered the books of the defendant turned over to a third party for use in another suit and then to be returned. In reversing this order on appeal it was held that this was an appealable order, the court saying: ‘We do not regard it, however, as an interlocutory order. It certainly partakes of an independent proceeding on the part of Pease, the plaintiff in the notice, as much as if he claimed the book as his property, and the court ordered it to be given up to him. Such an intervention, involving new and distinct rights, and being limited and spent by the final order, can scarcely be considered as merely interlocutory, and appurtenant to the main litigation.’ In Fish v. Fish, 216 Cal. 14, 13 P.2d 375, involving an order to sell certain property to pay the cost of a receivership, it was contended that the order was interlocutory and not final. In holding the order final, the court said: ‘Decisions recognizing the right of appeal from an order, where that right does not rest upon the express provisions of section 963 of the Code of Civil Procedure, are numerous and proceed upon the theory that the order is in effect a final judgment against a party in a collateral proceeding growing out of the action; that is to say, is so far independent of the suit itself as to be substantially a final decree for the purpose of an appeal, although there has been no final decree in the action. Anglo Californian Bank v. Superior Court, 153 Cal. 753, 96 P. 803. Orders requiring the payment of money by the party complaining, or the doing of an act by or against him, are usually regarded as final as against such party and may be appealed from by him.’

In Title Ins. & Trust Co. v. California, etc., Co., 159 Cal. 484, 114 P. 838, 841, the court, after reviewing the decisions, stated the general rule as follows: ‘Where the order requires the payment of money by the party complaining (citing cases), or the doing of an act by or against him, the order is in effect final as against such party and may be appealed from by him.’ Nor will the fact that subsequent steps may be taken by way of enforcing the order or judgment prevent the same from being final. Zappettini v. Buckles, 167 Cal. 27, 138 P. 696.

The rule is thus stated in Bakewell v. Bakewell, 21 Cal.2d 224, 130 P.2d 975, 978: ‘The general test for determining whether the judgment is final is ‘that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’ Lyon v. Goss, 19 Cal.2d 659, 123 P.2d 11.' In Pignaz v. Burnett, 119 Cal. 157, 51 P. 48, 50, the court said: ‘As to every order finally disposing of the rights of the parties as to any matter involved in the litigation,—orders, final in the sense that the question cannot be again considered in the case,—the parties affected have a right to be heard.’ The question as to whether or not an order or judgment is appealable is to be determined not by its form but by its effect. Howe v. Key System Transit Co., 198 Cal. 525, 246 P. 39.

It seems clear that the order here in question was a final determination in the trial court with respect to the rights of the parties in connection with the only matter then pending, and that it ordered the appellant to do a certain act. No question was left for future consideration except possibly the fact of whether or not the order would be obeyed. There was no further judicial action for the court to take, and any further possible action would not only be in carrying the judgment into effect but, if it be assumed that contempt proceedings might follow, this would require an entirely new proceeding based on new and different allegations. There was here no main proceeding of which this was merely one of the steps, and there was no matter pending except the one which was covered by the order. This issue, whether or not he was required to obey the subpoenas issued by an agency other than the court, was fully and finally settled in so far as the trial court is concerned. Had the court decided this issue the other way, holding that this appellant was not required to obey the subpoenas, it would seem clear that this respondent would have had a right of appeal. Such a right can not be dependent upon which party happens to prevail. On reason and on authority, we conclude that this was an appealable order.

The motion to dismiss is denied.

BARNARD, Presiding Justice

MARKS and GRIFFIN, JJ., concur.