Harnessing the Court's Contempt Power
To Punish Disobedience of Court Orders
Geoffrey L. Bryan
Akre, Bryan & Chang
Every business litigator knows that disobedience of a court order -- whether it be a subpoena, a temporary restraining order, a preliminary injunction, or the like -- is punishable as a contempt of court. Specifically, Section 1209(5) of the Code of Civil Procedure makes punishable "disobedience of any lawful judgment, order, or process of the court."
Most of us never have to learn how this contempt power operates in practice, because clients, lawyers, and third parties generally obey court orders. When a violation must be brought to the court's attention, however, a lawyer whose only background is in civil law-and-motion practice runs a high risk of getting it all wrong.
Why? This type of contempt proceeding, even though it arises from a civil lawsuit, is essentially criminal in nature. Virtually all of the rules applicable to a criminal trial apply with equal force in such a contempt setting. Failure to observe these rules makes any contempt finding ripe for annulment by an appellate court.
Types of Contempt. Violation of court orders usually falls in the category of "indirect" (also known as "constructive") contempt, referring to acts or omissions that occur outside the immediate view and presence of the court. C.C.P. § 1211. By contrast, "direct" contempt -- an act or omission occurring in the court's immediate view and presence -- can be punished summarily by the judge, without need for the elaborate process described in this article. Indirect contempt poses a much greater challenge, because the accused contemnor is entitled both to fair advance notice of the charges and to a trial with almost every protection afforded a criminal defendant (the principal exception being the right to jury trial).
Setting the Stage. Preparation for a potential contempt charge begins at the drafting stage of the original court order. Lawyers working against tight deadlines often neglect to give their proposed orders adequate attention. Careless, vague, or ambiguous language will not support a later contempt finding.
"To hold a person guilty of contempt for violating an injunction, the acts constituting the contempt must be clearly and specifically prohibited by the terms of the injunction. The party bound by an injunction must be able to determine from its terms what he may and may not do; he cannot be held guilty of contempt for violating an injunction that is uncertain or ambiguous, just as he may not be held guilty of violating a criminal statute that fails to give him adequate notice of the prohibited act." Brunton v. Superior Court (1942) 20 Cal. 2d 202, 205 (citations omitted).
Ambiguity in an order creates frequent problems, especially in an injunction containing both prohibitory ("defendant shall not...") and mandatory ("defendant shall take all steps reasonably necessary to...") elements that conflict with each other. Ambiguity in the order will be resolved in favor of the accused. Little v. Superior Court (1968) 260 Cal. App. 2d 311, 318. "The precise court orders as written are what may be enforced, not any amplification of those orders by the history of the litigation or documents incorporated by reference." Board of Supervisors v. Superior Court (1995) 33 Cal. App. 4th 1724, 1737.
Commencing Contempt Proceedings. Under C.C.P. § 1211, an indirect contempt proceeding is commenced by presenting to the court "an affidavit . . . of the facts constituting the contempt." This is typically submitted by the aggrieved party as part of an application for an order to show cause why a finding of contempt should not be made by the court.
Early case law, sensitive to the criminal law requirement of fair notice to the accused, held that a Section 1211 affidavit lacking all essential allegations was jurisdictionally defective, rendering the contempt proceeding void ab initio. E.g., Phillips v. Superior Court (1943) 22 Cal. 2d 256, 257-58. New C.C.P. § 1211.5, added in 1970, sets out a variety of mechanisms for curing deficient affidavits, and establishes a "substantial right/miscarriage of justice" standard for appellate review of affidavit deficiencies. However, some kind of affidavit is still required as a jurisdictional matter, In re Cowan (1991) 230 Cal. App. 3d 1281, 1286-89, and the better practice is to include all required prima facie elements in the charging affidavit.
The affidavit (which may include statements on information and belief) on which the proceeding is based serves as the complaint, and the responsive affidavit of an alleged contemnor serves as the answer or plea, framing the issues to be tried. Freeman v. Superior Court (1955) 44 Cal. 2d 533, 536-37.
Required Elements. The elements generally needed to establish indirect contempt are (1) the making of a valid court order, (2) knowledge of the order by respondent, (3) ability of the respondent to render compliance, and (4) willful disobedience of the order. Warner v. Superior Court (1954) 126 Cal. App. 2d 821, 824.
Each of these elements must be proved beyond a reasonable doubt through competent evidence at trial. In re Coleman (1974) 12 Cal. 3d 568, 572; Hotaling v. Superior Court (1923) 191 Cal. 501, 505; see In re Winship (1970) 397 U.S. 358, 364 (Due Process Clause protects accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime charged).
Timing can be critical. One cannot be held in contempt for violation of a court order unless there was a valid and enforceable order in force at the time the alleged contempt was committed. In re Blaze (1969) 271 Cal. App. 2d 210, 212. An order does not become effective until it is either in a writing filed with the clerk or entered in the court's minutes. Ketscher v. Superior Court (1970) 9 Cal. App. 3d 601, 604.
The alleged contemnor can collaterally attack the order in question. "No one can be punished for disobedience of a void order." Mitchell v. Superior Court (1972) 28 Cal. App. 3d 759, 764, citing Fortenbury v. Superior Court (1940) 16 Cal. 2d 405, 408-09; see In re Berry (1968) 68 Cal. 2d 137, 147 (order in excess of jurisdiction).
There must be proof that the order upon which the contempt proceeding is based has been served upon the accused, or that he was present when the order was made, or that he had knowledge of it. In re Felthoven (1946) 75 Cal. App. 2d 465, 468-69.
A judgment for contempt must include a finding that the ordered act was within the power of the accused to perform. Crittenden v. Superior Court (1964) 225 Cal. App. 2d 101, 107. Moreover, because the state may not impose on an accused the burden of negating an essential element of the crime charged, Mullaney v. Wilbur (1975) 421 U.S. 684, 704; see People v. Hyde (1985) 166 Cal. App. 3d 463, 474, there is some doubt whether the burden can be shifted to the alleged contemnor to demonstrate inability to comply as a defense. See In re Cassil (1995) 37 Cal. App. 4th 1081, 1087-88 (accusing party must prove ability to comply as part of case).
Procedural Rights of the Accused. As noted earlier, the alleged contemnor is entitled to most of the same protections available in any criminal prosecution. As the U.S. Supreme Court observed in In re Oliver (1947) 333 U.S. 257, 273-75, "A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense -- a right to his day in court -- are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel. . . . [O]ne charged with contempt of court [is entitled to] be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation."
The alleged contemnor is entitled to the presumption of innocence, and must be proven guilty beyond a reasonable doubt. Bridges v. Superior Court (1939) 14 Cal. 2d 464, 485, rev'd on other grounds, 314 U.S. 252. The burden is on the party seeking a finding of contempt to establish such charges by competent evidence. Ransom v. Superior Court (1968) 262 Cal. App. 2d 271, 275-76.
The accused cannot be compelled to be sworn as a witness, Brophy v. Industrial Accident Commission (1941) 46 Cal. App. 2d 278, 283, but has an absolute right to refuse to appear as a witness in the proceedings. In re Witherspoon (1984) 162 Cal. App. 3d 1000, 1002, citing Ex parte Gould (1893) 99 Cal. 360.
Accordingly, even though the contempt proceeding may be styled as an "Order to Show Cause," the procedural reality is that the accused contemnor, like any criminal defendant, is not required to do (or "show") anything. Just as in a criminal prosecution, it is up to the charging party to adduce sufficient competent evidence, through percipient witnesses and other permissible sources, to establish each element of proof beyond a reasonable doubt.
Because this is a full-fledged trial, declarations will normally not be admissible. This tends to surprise civil litigators, who may be tempted to look upon contempt proceedings as resembling other law-and-motion matters (such as the initial proceedings that led to the issuance of the order now claimed to have been violated). Indeed, a surprising number of trial judges appear to be unaware of the procedural rules applicable to indirect contempt proceedings.
Penalties for Contempt. Under C.C.P. § 1218(a), a person found guilty of contempt may be fined up to $1,000, or imprisoned for up to five days, or both. In addition, a recent amendment allows the court to award reasonable attorneys' fees and costs for the contempt proceedings to the charging party if the convicted contemnor is a party or agent of a party.
Appellate Review. Contempt convictions are expressly made non-appealable, C.C.P. §§ 904.1(a)(1), 1222, and appellate review may normally be had only by discretionary writ (typically a writ of review or certiorari under C.C.P. §§ 1067-1077).
While a full discussion of appellate review is beyond the scope of this article, it is important to understand that a strict standard is applied: "In the review of a contempt proceeding 'the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused, and no intendments or presumptions can be indulged in aid of their sufficiency. If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively on its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.'" Mitchell v. Superior Court (1989) 49 Cal. 3d 1230, 1256, quoting Hotaling v. Superior Court, supra, 191 Cal. at 506 (citations omitted).
Conclusion. Is the cost and inconvenience of establishing indirect contempt beyond a reasonable doubt worthwhile? Each case is different, of course, and strategic considerations (as well as the possible award of attorneys' fees) may justify the substantial investment. On the other hand, appellate courts have shown a great propensity to overturn contempt judgments because of procedural problems, so the only real punishment for the alleged contemnor may be the cost of litigating the matter.
This article originally appeared in the California Law Business supplement to the Los Angeles Daily Journal.
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