Raiden v. Superior Court

California Supreme Court Jun 17, 1949 No. L. A. 20920Published

Before: Shenk

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Holding. The court held that an attorney's statement expressing the opinion that a court order defeated the ends of justice, when made respectfully and in good faith, does not constitute contempt of court.

Issues

Whether the facts recited in a contempt order are sufficient to support an adjudication of contempt against an attorney.

Disposition. annulled

Quotations verified verbatim against the opinion

“The recited fact shows that the petitioner expressed to the court no more than his opinion that the former order appointing the guardian ad litem defeated the ends of justice.”

“An attorney is entitled to advocate respectfully and in good faith his contentions on behalf of his client even though asserted inadequacies in the action taken by the court are pointed out.”

“The facts stated in the order are therefore insufficient to support an adjudication in contempt.”

SHENK, J.

In this proceeding the petitioner, an attorney, seeks by certiorari to review and annul an order holding him in contempt of the respondent superior court and imposing a fine of $50 which was paid under protest.

The petition shows that the alleged contempt was committed in the course of the petitioner’s argument of a motion for a new trial on behalf of the defendant in an action for divorce between Richard Edward Reeves and Annabelle Reeves in the Superior Court in Los Angeles County.

The wife in that action was a minor 19 years of age. She resided with their two children in Nevada where she had filed an action for divorce against her husband. Substituted service of summons was had on her in the California action. By an amendment in 1947 to section 413 of the Code of Civil Procedure a shorter time than the period prescribed by the order of publication was provided for completion of service of sum

[85]

mons when personal service was effected outside of the State. It is alleged that due to this change the petitioner, employed as attorney for the wife, miscalculated the time for appearance by the wife and her default was taken. The respondent court held a hearing on the default, granted a divorce to the husband and awarded to him the community property and the custody of the children. Thereupon the petitioner moved to set aside the default and requested that the wife be permitted to appear and defend. The motion was denied. The petitioner then served a notice of intention to move for a new trial. The motion came on for hearing before the respondent judge who had heard the default proceeding and the motion to set aside the default. The motion for a new trial was also denied.

A transcript of the proceedings taken on the default hearing has been filed as an exhibit to the petition for the writ. It shows that the following took place on the default hearing:

At the close of the testimony the judge suggested the appointment of a guardian

ad litem

for the defendant, stating that although the wife was over 18 and married she should be represented by a guardian

Raiden v. Superior Court

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SHENK, J.

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