Mulvany v. Superior Court

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.

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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,

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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.”