Farace v. Superior Court

Opinion

WALLIN, J.

This case involves a contempt hearing at which neither the contemner nor his attorney was present.

[917]

Facts

Real party in interest Hale filed an affidavit in superior court charging petitioner Farace with contempt for failure to pay child support as ordered. The superior court issued an order to show cause why Farace should not be held in contempt. The facts regarding service of the order to show cause are in dispute. Hale claims Farace was properly served by a private service using a recent photograph to identify him. Farace claims he was not at home and the papers were mistakenly served on his brother. There is no dispute the brother’s attorney informed Hale’s attorney the wrong person had been served. Farace claims to have had no actual knowledge of the contempt proceeding.

At the hearing on the order to show cause neither Farace nor his attorney was present. Hale’s attorney alleged Farace had been evading service but had finally been properly served. However, Hale’s attorney also informed the court he had been notified the wrong person had been served. The court made no finding regarding the validity of service. At the close of the hearing the court found Farace in contempt and issued a bench warrant for his arrest. At the sentencing hearing Farace made a motion to quash the order to show cause and set aside the contempt order on the grounds of improper service. The court stated it had no jurisdiction to set aside the contempt order and proceeded to sentence Farace.

Discussion

The issue is whether a contempt hearing can be held in the absence of the contemner and his attorney when there is no finding the contemner wilfully absented himself. We conclude a contempt hearing cannot be held under those circumstances.

Civil contempt proceedings are quasi-criminal because of the penalties which may be imposed.

(In re Martin

(1977) 71 Cal.App.3d 472 [139 Cal.Rptr. 451].) Certain procedural safeguards extended to criminal defendants must therefore be extended to the contemner. For example, Farace is entitled to a formal hearing as a matter of right where he may call and cross-examine witnesses and introduce evidence in defense of the charge. (Code Civ. Proc., § 1217;