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In re Koehler

February 5, 2010


(San Mateo County Super. Ct. No. 071764). Trial Judge: Hon. Susan I. Etezadi.

The opinion of the court was delivered by: Richman, J.


Petitioner Henry James Koehler became the attorney for wife in the midst of an acrimonious and bitterly contested divorce proceeding. Confidential documents that were the property of some third parties had been provided to wife, and she and petitioner refused to return them, even after a court order to do so. Third parties obtained an order awarding $10,000 in discovery sanctions, which were not paid, and third parties initiated proceedings for indirect contempt. Petitioner resisted, represented by a court-appointed attorney, but without success, and was held in contempt and ordered to serve five days in jail, which he did. But he did not pay the $10,000.

Seven months later, apparently acting on its own and with no initiating affidavit, the superior court issued an order to show cause regarding contempt. Petitioner, again represented by court-appointed counsel, asserted jurisdictional, procedural, and substantive arguments in opposition. The superior court rejected the arguments, and ordered petitioner to serve another five days in jail, which he did. Less than two months later, again acting on its own and with no initiating affidavit, the superior court issued yet another order to show cause. Following a brief hearing at which petitioner appeared in propria persona, the court again held petitioner in contempt and ordered him to serve another five days in jail. This writ proceeding followed.

The leading expert on California judicial conduct has observed that "[t]he procedures for punishing direct, hybrid, and indirect contempt are different. Significant additional due process rights are involved in an indirect contempt that do not come into play in direct and hybrid contempt. For this reason, it is mandatory that judges be familiar with the procedures governing direct contempt. To invoke the power of contempt without knowing or learning the law is misconduct [citation]." (Rothman, Cal. Judicial Conduct Handbook (3d ed. 2007) § 4.01, p. 154.) What happened here did not measure up to that law, not by a long shot. Treating the petition as one for prohibition, we grant it, and thus annul the contempt order, bringing an end to a most unfortunate chapter in this family law saga.


Husband and wife were embroiled in a vigorously contested divorce case in the San Mateo County Superior Court, which began in August 2002. (See In re Marriage of Papazian (Apr. 22, 2009, A114961/A116750/A117270) [nonpub. opn.].) Petitioner became wife's attorney in July 2005. According to petitioner, he became wife's attorney late in the proceedings, after wife's prior attorney "caved in" to husband's "fraud" in covering up his assets, and petitioner attempted to set aside various earlier-entered orders. Once petitioner entered the fray, numerous charges and countercharges flew between the sides, which included scathing correspondence between petitioner and husband (who at times was representing himself). The details of all that occurred are not before us, but suffice to say that what we know was particularly unpleasant.

During the course of discovery, documents containing certain confidential information belonging to Lucky Strike Farms, Inc., Papazian Properties Company, and Gilbert and Margaret Papazian (collectively, third parties)*fn1 had been provided to wife. On April 25, 2006, third parties filed for a protective order requiring, inter alia, the return of these documents; and on August 8, 2006, they obtained an order to that effect, ordering return of the documents by no later than August 18. The documents were not returned.

On October 17, 2006, third parties moved for an award of discovery sanctions under Code of Civil Procedure sections 2017.020, subdivision (b), and 2023.030, subdivision (a), and for mandatory injunctive relief. They also sought an award of $17,270 from wife and petitioner, allegedly the attorney fees incurred in pursuing the protective order and in attempting to obtain the return of the documents.

A hearing on this motion was held on November 27, 2006, before the Honorable Clifford Cretan. After considering the arguments presented by both sides, Judge Cretan ordered both petitioner and wife to pay third parties sanctions in the amount of $10,000. With petitioner acting as her attorney, wife filed an appeal from that order. Petitioner did not file an appeal on his own behalf. On April 22, 2009, we affirmed both that order and other orders entered by the trial court. (In re Marriage of Papazian, supra, A114961/A116750/A117270).)

Petitioner never paid the $10,000 sanctions, and on May 30, 2007, third parties initiated contempt proceedings against him. Before turning to a discussion of what thereafter ensued, we set forth some fundamental principles regarding contempt, particularly indirect contempt.

Some Fundamental Principles

We quoted above from Judge David Rothman, a recognized expert in the field of judicial conduct. Early in his lengthy chapter on contempt-a chapter replete with warnings and reminders about the necessity of judges being especially vigilant in conducting contempt proceedings-Judge Rothman advises judges about "useful resources," including this: "For a useful and up-to-date reference on contempt and sanctions, see the Courtroom Control: Contempt and Sanctions, California Judges Benchguide (Revised 2006), produced by the Center for Judicial Education and Research of the Administrative Office of the Courts [(Benchguide)]. . . ." (Rothman, supra, § 4.04, p. 157.)

The Benchguide is hardly the only readily available judicial resource regarding exercise of the contempt power. Another is the California Judges Benchbook: Civil Proceedings Before Trial (2d ed. 2008) (Benchbook), which "focuses on the judge's role," and provides "practical working tools to enable a judge to conduct proceedings fairly, correctly, and efficiently. [It is] written from the judge's point of view, giving the judge concrete advice on what to look for and how to respond." (Benchbook, Preface, p. v. ) Chapter 17 of the Benchbook deals with sanctions and contempt.

Both the Benchguide and the Benchbook set forth in detail both the substantive law of contempt and the procedures to be followed; they also provide much practical advice. Illustrative is this from the Benchguide: "Civil contempt proceedings under CCP §§1209-1222, whether punitive or coercive, may arise out of either civil or criminal litigation. Furthermore, even though they are denominated civil, these proceedings are criminal in nature because of the penalties that a judge may impose. People v. Gonzalez (1996) 12 Cal.4th 804, 816. The constitutional rights of the accused must be observed. See Hicks v. Feiock (1988) 485 U.S 624, 632 (guilt in criminal contempt proceeding must be proved beyond reasonable doubt); Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256 (when there are punitive sanctions, guilt must be established beyond reasonable doubt). [Citations.]" (Benchguide, § 3.25, p. 3-29.) The Benchbook is similar. (Benchbook, § 17.77, pp. 439-440.)

Both books discuss the three types of contempt, direct, hybrid, and indirect, the last of which was invoked here against petitioner. "The facts supporting indirect contempt arise outside the judge's presence, requiring a more elaborate procedure to notify the person charged and to afford an opportunity to be heard. See CCP §§ 1211-1217; Arthur v Superior Court (1965) 62 Cal.2d 404, 408. A common example is a party's disobedience of a judge's order." (Benchbook, § 17.78, p. 440.)

Both books also provide informative discussions of the difference between punitive and coercive forms of punishment. The Benchguide makes clear, for example, that "[i]n punitive proceedings, commonly referred to as `civil-punitive,' the court may impose a fine not to exceed $1000 and/or a term of imprisonment not to exceed five days to punish a party for each separate act of contempt. See CCP § 1218(a); Fine v. Superior Court (2002) 97 Cal.App.4th 651, 674 (five-day sentence was appropriate punishment for attorney adjudged in contempt for filing false statement of disqualification under CCP § 170.1). See also CCP § 1218(b)-(c) (punishment for failure to comply with family court order). On what constitutes a separate act of contempt, see Donovan v. Superior Court (1952) 39 Cal.2d 848, 855 (four distinguishable violations of injunction warranted multiple fines); Conn v. Superior Court (1987) 196 Cal.App.3d 774, 786 (contemner's repeated failures to turn over documents as ordered constituted single act of contempt). The test is whether there were separate insults to the court's authority, several of which may occur on the same day. Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 621 . . . (multiple fines for separate violations of injunction occurring on different days.)" (Benchguide, § 3.28, p. 3-30.)

"In coercive proceedings, the court uses imprisonment to compel performance of some act or duty required of a person that the person has the ability, but refuses, to perform, e.g., to answer a question as a witness. CCP § 1219(a). . . . The court must specify the act to be performed in the warrant of commitment. See CCP §1219(a); Morelli v Superior Court (1969) 1 Cal.3d, 332; H. J. Heinz Co. v Superior Court (1954) 42 Cal.2d 164, 174. [¶] JUDICIAL TIP: In selecting the appropriate punishment, the court should weigh the effect of any mitigating circumstances. [Citations.]" (Benchguide, § 3.29, p. 3-31.)

Other available practice guides explain not only the general rules and procedures, but precisely what must be proven at an indirect contempt proceeding. For example, one leading practical treatise distills it this way, in bullet point fashion: "In indirect contempt proceedings based on disobedience of a prior court order, a valid judgment must meet `strict requirements.' Each of the following must be established:

* Facts establishing court's jurisdiction (e.g., personal service or subpoena, validity of court order allegedly violated, etc.);

* Defendant's knowledge of the order disobeyed;

* Defendant's ability to comply; and

* Defendant's willful disobedience of the order."

(Wegner, Fairbank, Epstein, Cal. Practice Guide (The Rutter Group 2009) § 12:432, p. 12-88.)

The other leading practical treatise lists the same four issues. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009), § 9:712, p. 9(ll)-48.3.) And later elaborating on the third issue, it says this: "Ability to comply is sometimes obvious, particularly where the violation is of a strictly prohibitory injunction. But in any case, it must be proved by competent evidence." (Weil & Brown, supra, § 9:724, p. 9(ll)-48.8.) "The burden of proof is on the moving party to ...

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