Mulvany v. Superior Court
PHYLLIS A. MULVANY, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DAVID J. MULVANY, Real Party in Interest
- Proceeding
- appeal
- Trial court
- Superior Court of San Diego County
- Trial judge
- Patricia D. Benke
- Outcome
- other — D004825. Fourth Dist., Div. One.
- Area
- family
- Panel
- Robert O. Staniforth (author)
Analysis
The trial court dismissed a civil contempt action to enforce attorney's fees, ruling that taking the matter off calendar without notice constituted a dismissal that barred reprosecution under double jeopardy and Penal Code section 1387. The Court of Appeal issued a peremptory writ of mandate, holding that an off-calendar order is not a dismissal and that no jeopardy attached because no witnesses were sworn, thereby ordering the trial court to vacate the dismissal and allow the contempt charges to proceed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal of civil contempt charges for attorney's fees based on the argument that taking the matter off calendar constituted a dismissal barring reprosecution under double jeopardy and Penal Code section 1387.“No legal authority supports the trial court’s ruling. No case that we are aware of, or that has been cited to us, equates the removal of a matter from calendar with such termination of an action as would invoke the provisions of either Penal Code section 1387 or jeopardy principles.” | de novo | error | agree with court The appellate court correctly identified that the trial court misapplied criminal procedural protections to a civil contempt proceeding. By citing *Guardianship of Walters* and *People v. Upshaw*, the court accurately established that an off-calendar order is not a dismissal and that jeopardy had not attached because no witnesses were sworn. The court further correctly noted that civil contempt proceedings are governed by the Code of Civil Procedure, which allows for dismissal and refiling before the trial commences (swearing of the first witness). The trial court's reliance on Penal Code section 1387 and double jeopardy was legally unsound in this context. |
Authorities
- relied: Guardianship of Walters (1951) 37 Cal.2d 239 — An off-calendar order is not equivalent to a dismissal and does not divest the court of jurisdiction.
- relied: People v. Upshaw (1974) 13 Cal.3d 29 — Jeopardy normally attaches when the jury is sworn or, in a court trial, when the first witness is sworn.
- relied: Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503 — Trials of civil contempt enforcement matters are subject to the provisions of the Code of Civil Procedure insofar as they do not conflict with due process rights.
- relied: Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 Cal.App.2d 370 — Civil contempt proceedings are governed by civil procedure rules regarding dismissal and trial commencement.
- relied: Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768 — Code of Civil Procedure section 581, subdivision (a) permits dismissal of an action at any time before actual commencement of the trial.
- relied: United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 — A peremptory writ of mandate is proper when the lower court's order is clearly erroneous and no further hearing is needed.
- relied: Goodenough v. Superior Court (1971) 18 Cal.App.3d 692 — A peremptory writ of mandate is appropriate to correct a clear error of law by the trial court.
The appellate opinion: sound — The opinion is sound because it correctly distinguishes between civil and criminal contempt procedures, applying the appropriate Code of Civil Procedure standards for dismissal and trial commencement. It accurately cites binding authority to refute the trial court's erroneous application of double jeopardy and Penal Code section 1387 to a civil matter where no witnesses were sworn.
The family law court dismissed Phyllis Mulvany's contempt count to enforce a $10,000 attorneys' fee order, reasoning that her taking the earlier contempt hearing off calendar without notice operated as a dismissal that barred refiling under Penal Code section 1387 and double jeopardy principles. The Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate the dismissal and let the contempt charges proceed, holding that an off-calendar order is not a dismissal, jeopardy never attached because no witness was sworn or exhibit admitted, and dismissal was not an appropriate sanction.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's ruling that removing the contempt matter from calendar constituted a dismissal/termination of the action invoking Penal Code section 1387 and barring refiling“No legal authority supports the trial court’s ruling. No case that we are aware of, or that has been cited to us, equates the removal of a matter from calendar with such termination of an action as would invoke the provisions of either Penal Code section 1387 or jeopardy principles.” | de novo | error (law misapplied) | agree with court Section 1387 applies only after an order terminating an action under the relevant chapter; no such order existed. Guardianship of Walters squarely holds an off-calendar order is not equivalent to a dismissal and does not divest the court of jurisdiction, so the trial court's premise fails as a matter of law. |
Trial court's conclusion that double jeopardy principles barred the renewed contempt count because the citee could otherwise face multiple actions“Here, no witnesses were sworn nor testimony offered at the only hearing which took place, on April 14.” | de novo | error (law misapplied) | agree with court Jeopardy attaches in a court trial when the first witness is sworn (People v. Upshaw); the April 14 hearing produced no sworn testimony or admitted evidence and the April 21 date produced no hearing at all. Even treating contempt as quasi-criminal, jeopardy never attached, and Code of Civil Procedure section 581(a) would in any event have allowed voluntary dismissal and refiling before trial commenced. |
Dismissal of the attorneys' fee contempt count as a response to petitioner's taking the matter off calendar without notice to the citee“In any case, dismissal of the action to enforce payment of $10,000 in attorneys’ fees was not an appropriate sanction.” | mixed | error (discretion) | agree with court The court noted the record contained no facts about any inconvenience suffered and did not support the finding that David appeared on April 21, and concluded that even if some sanction might be available under local rules, outright dismissal of a $10,000 enforcement action was disproportionate. The reasoning is brief but the result follows from the absence of record support and the legal errors underlying the dismissal. |
Authorities
- relied: Guardianship of Walters (1951) 37 Cal.2d 239 — An off-calendar order is not equivalent to a dismissal and does not divest the court of jurisdiction it has acquired.
- relied: Guardianship of Lyle (1946) 77 Cal.App.2d 153 — Taking a matter off calendar does not terminate the proceeding or deprive the court of jurisdiction.
- relied: People v. Upshaw (1974) 13 Cal.3d 29 — Jeopardy attaches when the jury is sworn or, in a court trial, when the first witness is sworn; double jeopardy bars retrial only after a termination without legal cause following attachment.
- relied: Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503 — Although contempt is quasi-criminal and criminal-law safeguards apply, civil contempt enforcement proceedings are governed by the Code of Civil Procedure insofar as consistent with the citee's due process rights.
- relied: Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 Cal.App.2d 370 — Contempt proceedings are subject to Code of Civil Procedure rules where they do not conflict with the citee's due process protections.
- relied: Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768 — Code of Civil Procedure section 581, subdivision (a) permits a plaintiff to dismiss an action at any time before actual commencement of trial.
- relied: United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 — A peremptory writ may issue in the first instance where an alternative writ would add nothing to the presentation.
- relied: Goodenough v. Superior Court (1971) 18 Cal.App.3d 692 — Issuance of a peremptory writ without an alternative writ is proper under Code of Civil Procedure section 1088 when the issues are clear.
- missed: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — A peremptory writ in the first instance may issue only after the parties have received notice that the court is considering that course and an opportunity to oppose; the opinion issues a peremptory writ without reciting compliance with this requirement.
The appellate opinion: sound with gaps — The opinion correctly rejects the trial court's novel equation of an off-calendar order with a dismissal, citing controlling Supreme Court authority on both the off-calendar point and the attachment of jeopardy, and sensibly treats Code of Civil Procedure rules as governing contempt enforcement absent a due process conflict. It issues a peremptory writ in the first instance, however, without mentioning Palma v. U.S. Industrial Fasteners and its notice requirement, and leaves the sanctions question largely unaddressed beyond noting the record gap.
Opinion — Staniforth
Opinion
STANIFORTH, J.Phyllis A. Mulvany (Phyllis), petitioner, seeks a writ of mandate to compel the trial court to reinstate against real party David J. Mulvany (David) dismissed contempt charges to enforce payment of attorneys’ fees in the underlying dissolution action.
The family law court ordered David, among other things, to pay Phyllis’s attorneys the sum of $10,000. Phyllis noticed an order to show cause to enforce payment by contempt sanctions. The matter first came on for hearing on April 14, 1986, at which time Phyllis attempted to introduce certain declarations in evidence, David objected, the parties’ counsel held a chambers conference and the matter was then continued without objection to April 21. No evidence was actually introduced on April 14.
*908 On April 21, Phyllis’s counsel called the court and had the matter taken off calendar. They gave no notice to David or his counsel. There were no appearances and no hearing took place.
Later, on May 5, Phyllis filed a new order to show cause seeking the same attorneys’ fees as in the earlier proceeding, as well as additional sums for unpaid spousal support and child support. At the hearing on the augmented order to show cause, the trial judge dismissed the count regarding attorneys’ fees. The judge stated these reasons for the ruling: where a contempt matter is set for hearing, the citee and counsel appear at the hearing prepared to go forward, 1 but the matter is taken off calendar by the moving party, who does not appear at the hearing, that removal of the action from calendar is a dismissal of the contempt matter, because “to conclude otherwise in a quasi-criminal action could subject a citee to multiple actions.”
In support of this ruling, David argues dismissal of the contempt citation was required both by Penal Code section 1387 and the doctrine of double jeopardy.
No legal authority supports the trial court’s ruling. No case that we are aware of, or that has been cited to us, equates the removal of a matter from calendar with such termination of an action as would invoke the provisions of either Penal Code section 1387 or jeopardy principles. Penal Code section 1387 prevents reprosecution of a criminal action under certain stated circumstances following “an order terminating an action pursuant to this chapter.” Here, there is no such order. “An off-calendar order is not equivalent to a dismissal and does not divest the court of the jurisdiction which it has acquired.” (Guardianship of Walters (1951) 37 Cal.2d 239, 244 [231 P.2d 473] and cases there cited; Guardianship of Lyle (1946) 77 Cal.App.2d 153, 155-156 [174 P.2d 906].)
Double jeopardy principles prevent retrial of a criminal matter which has been terminated without legal cause after jeopardy has attached, which event normally occurs when the jury is sworn, or, in a court trial, when the first witness is sworn. (E.g., People v. Upshaw (1974) 13 Cal.3d 29, 32 [117 Cal.Rptr. 668, 528 P.2d 756].) Here, no witnesses were sworn nor testimony offered at the only hearing which took place, on April 14.
Further, although a contempt procedure is said to be “quasi-criminal” in nature, in that criminal sanctions may be imposed, and many safeguards of the criminal law process therefore apply to such procedures, nevertheless the trials of civil contempt enforcement matters are subject to *909 the provisions of the Code of Civil Procedure insofar as such rules do not conflict with the citee’s due process rights. (See, e.g., Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 526 [154 Cal.Rptr. 874]; Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 Cal.App.2d 370, 371-372 [72 Cal.Rptr. 177].) Code of Civil Procedure section 581, subdivision (a) permits dismissal of an action at any time before actual commencement of the trial. (See Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768, 771 [193 Cal.Rptr. 676].) A trial commences with the swearing of the first witness or the admission in evidence of the first exhibit. (Evid. Code, § 12, subd. (b)(1).) Accordingly, by analogy, the contempt citation here could have been dismissed and refiled after the aborted April 14 hearing, It follows the action could likewise have been taken off calendar and then replaced.
We express no opinion as to whether the removal of the matter from calendar without notice to David and his counsel warranted imposition of some sanctions under local rules or otherwise. The record does not contain any facts regarding the nature of the inconvenience suffered, nor does it support the trial judge’s finding that the citee (David) “appeared” on April 21. In any case, dismissal of the action to enforce payment of $10,000 in attorneys’ fees was not an appropriate sanction.
An alternative writ or order to show cause would add nothing to the presentation. A peremptory writ is proper. (Code Civ. Proc., § 1088; United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359 [169 Cal.Rptr. 827]; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697 [96 Cal.Rptr. 165].)
Let a writ of mandate issue ordering the trial court to vacate its order dismissing contempt charges against real party and to permit petitioner to proceed against real party on those charges.
Kremer, P. J., and Wiener, J., concurred.
The record does not reflect any appearances on April 21.
Cites, in this corpus
- Datner v. Mann Theatres Corp. Civ. 67013 · 1983-08-08
- United Nuclear Corp. v. Superior Court Civ. 24286 · 1980-12-16
- Clark Equipment Co. v. Wheat Civ. 41692 · 1979-05-01
- People v. Upshaw Crim. 17682 · 1974-12-05
- Goodenough v. Superior Court Civ. 11068 · 1971-07-12
- Pacific Telephone & Telegraph Co. v. Superior Court Civ. 33427 · 1968-08-29
- Guardianship of Walters L. A. 21052 · 1951-05-16
- Guardianship of Lyle Civ. No. 13131 · 1946-12-05