In Re Donovan

SHINN, P. J.

A writ of habeas corpus was issued on the petition of John F. Donovan who was at the time confined in the county jail under commitment following his conviction of contempt of court. His alleged offense consisted of disobedience of an injunction theretofore issued by which he was required to remodel a dwelling in the city of Santa Monica by the removal of 13 living units and the conversion of the main structure on the premises into a single family dwelling; also, to remodel a garage structure, remove a cottage, etc. He was enjoined from using, occupying or maintaining the premises except as a single family dwelling. The basis of the injunction was that the buildings in question had been converted from a single family residence into multiple units in violation of certain ordinances of the city of Santa Monica. Petitioner had instituted an action against the city for declaratory relief by which he sought to avoid compliance with the terms of the ordinances. The injunction in question was issued on a judgment in favor of the city, cross-complainant in that action. Petitioner appealed from the judgment. The decision, which upheld the validity of the ordinances, is reported in 88 Cal.App.2d 386 [199 P.2d 51]. A remittitur was filed with the superior court January 12, 1949. On January 14th an order to show cause was issued requiring petitioner to show cause why he should not be adjudged guilty of contempt of court for wilfully disobeying the injunction. On February 8, 1949, petitioner was adjudged in contempt in that continuously since the date of the judgment, November 26, 1945, he had used, occupied and maintained said premises for purposes other than a single family dwelling and had not remodeled the same. He was sentenced to five days in jail and fined $500, the unpaid portion of which was to be liquidated by confine

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ment at the rate of $2.00 per day. Sentence was suspended conditionally. The trial court called it placing petitioner on probation. Generally stated, the terms were that petitioner was to comply with the injunction. It appears that he took certain unsuccessful means to eject his tenants, a necessary step in the course of compliance with the judgment, that these were unsatisfactory to the court, that “probation” was eventually revoked and petitioner committed to jail under the terms of the original order.

The recital as to the acts and omissions of petitioner found in the commitment relate exclusively to the alleged failure to comply with the terms of probation. We deem it unnecessary to determine whether probation was properly revoked. There is presented to us the question of the validity of the adjudication of contempt.