Bone v. Superior Court

California Court of Appeal Oct 28, 1966 No. Civ. 30938Published

Before: McCoy

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Holding. The court annulled the contempt order because the trial court failed to receive evidence in support of the charges, denied the petitioner the right to cross-examine witnesses, and failed to make sufficient findings of fact to support the adjudication.

Issues

Whether a contempt order is valid when no evidence is offered or received at the hearing.
Whether a contempt order is valid in the absence of specific findings of fact regarding the alleged violation.

Disposition. annulled

Quotations verified verbatim against the opinion

“The failure to offer the Dahlstrum declaration or to call Dahlstrum as a witness deprived petitioner of a trial of the issues tendered by that declaration.”

“No facts were found which would constitute wilful violation of [the preliminary injunction]. A finding that one accused of contempt is in violation of an order of court states only a conclusion of law.”

McCOY, J. pro tem.

This is a proceeding to review an order of the Superior Court for Los Angeles County adjudging petitioner guilty of contempt of court.

On May 19, 1966, the respondent court issued a preliminary injunction in Bliss, et al. v. Sherman’s Shapers, a partnership, et al., action number NC-C 1997 G, requiring defendants Sherman’s Shapers and Sherman L. Bone to do certain things with respect to the advertising of their business. Defendants did not appeal from the preliminary injunction.

On June 14, 1966, the respondent court issued its order requiring “Sherman’s Shapers and Sherman L. Bone” to show cause on July 8 why they should not be adjudged guilty of contempt for willfully disobeying the order of May 19, “which order and your disobedience of which are more fully described in the declaration of Jack A. Dahlstrum” for the order to show cause. The matter was continued from July 8 to July 12, at which time the respondent court made the order here under review.

Review of the order finding petitioner in contempt was sought on the ground that the court acted in excess of its jurisdiction in making that order since it initially acted in excess of its jurisdiction in granting the preliminary injunction. In a proper case we would thus be required to determine whether the preliminary injunction was void for lack of jurisdiction. (3 Witkin, Cal. Procedure (1954) Enforcement of Judgment, § 59, p. 2022.) We do not reach that question because of our conclusion that the order under review must be annulled for reasons other than those urged by petitioner.

In a proceeding such as this to have petitioner adjudged guilty of an indirect contempt because of an alleged violation of an order of the court, he could not be deprived of his property or liberty “without evidence having been offered against him in accordance with the established rules, and an opportunity to cross-examine those whose evidence is given against him, and the opportunity to present evidence in his own behalf.”

(Collins

Superior Court,

145 Cal.App.2d 588, 594 [302 P.2d 805].) “All elements of charged eon-

[974]

Bone v. Superior Court

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