In Re Stanley

[590]

Opinion

PARAS, J.

In this original proceeding petitioner asks us to invalidate a judgment of contempt issued by the municipal court in Sacramento.

The facts are not in dispute. Petitioner is attorney of record for a defendant in a criminal case. Trial was originally scheduled for June 4, 1980. On May 28 petitioner prepared a motion to continue which was filed on May 29, to be heard on June 2. Because he was scheduled to appear in federal court that day, an associate appeared to argue the motion; it was granted. The trial was rescheduled for June 23. Petitioner’s associate noted the new trial date on the file he carried to court but did not record it elsewhere for office calendaring and did not inform petitioner of it. Petitioner never asked his associate or anyone else about the new trial date.

When the case was called for trial on June 23, the People were ready to proceed and the defendant was present. Neither petitioner nor his associate (whom he had asked to handle his court appearances that day while he was out of town) appeared for the trial. The court issued an order to show cause for contempt and scheduled a hearing thereon for June 25. Petitioner appeared at the hearing with counsel. He and his associate both testified the failure to appear was caused by a breakdown in their office procedures regarding the scheduling of court appearances. Petitioner testified he assumed he was told the outcome of the motion hearing, but never inquired of anyone as to the date to which the trial was continued and was never aware of the new date.

The court found petitioner’s failure to appear on the new trial date a willful violation of Code of Civil Procedure section 1209, subdivisions 3 and 5

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in that petitioner had a duty to make a followup inquiry on a case in which he had a continuance motion pending. Petitioner was adjudged in contempt of court and ordered to pay a fine of $500 and spend three days in county jail.

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[591]