In re Donovan

SHINN, P. J. John P. Donovan and Jeanette G. Donovan were accused of violating a prohibitory and mandatory injunction, were found guilty, and John P. Donovan was sentenced to imprisonment for a period of five days and to pay a fine of $500, the unpaid portion of which was to be satisfied by imprisonment at the rate of $2.00 per day. He filed a petition for a writ of habeas corpus alleging '‘ That the order of Court for the violation of which the petitioner was adjudged in contempt required said petitioner to remove certain household dwelling units which had been erected upon a lot in the City of Santa Monica, which said units had all been erected prior to 1938. That at all times from the original order of said Court down to and including the present time, said units had been and are now occupied by tenants. That your petitioner is not the owner and has no interest in or control over said premises.” He also alleged that he had applied to the housing expediter under the United States Rent Control Act [56 Stats. 23, 50 U.S.C.A.App. § 901 et seq.] for a certificate of eviction which would allow him to evict tenants who were occupying the rental units; that his petition was denied by the housing expediter; that he had filed actions of unlawful detainer against said tenants but had been advised that he could not prosecute said actions to successful conclusion without a certificate of eviction. The petition also alleged “That petitioner is not held by virtue of any complaint, indictment, presentment, warrant, or quarantine law, rule, regulation, arrest or order except as above specifically set out.” A writ of habeas corpus was issued on the petition. The sheriff has [695]filed a return and petitioner has filed a traverse to the return. The only questions of fact raised by the petition and traverse relate to the claim of petitioner that he does not own or control the property and that neither he nor Jeanette G. Donovan, the owner, has the ability to comply with the judgment by the tearing down of the structures or converting them into a single family dwelling; also that the tenants cannot be evicted without the issuance of a certificate of eviction by the housing expediter.

It appears from the sheriff's return that petitioner is held under a commitment and amended commitment based upon an adjudication of contempt rendered by the superior court. Filed with the return are copies of the order to show cause, the affidavit upon which it was issued, the order adjudging petitioner guilty and imposing sentence, the commitment and the amended commitment.

The affidavit of Leslie S. Storrs for an order to show cause in re contempt avers that a judgment was rendered in an action brought by Jeanette Gr. Donovan and John F. Donovan against the city of Santa Monica in which the city of Santa Monica filed a cross-complaint, which judgment was entered November 26, 1945, and was affirmed on appeal, as evidenced by remittitur filed January 12, 1949; that the judgment permanently enjoined and restrained Jeanette G. Donovan and John F. Donovan as follows: “A. From using, occupying or maintaining the premises described in the complaint and cross-complaint herein, viz.: ‘Lot 2 of Block I, the Palisades Tract, together with all improvements thereon and appurtenances thereunto belonging in The City of Santa Monica as per map recorded in Book 8 at Page 32 thereof of Maps of the official records in the Office of the County Recorder of said County and State, ’ for any purpose other than a single-family dwelling as defined by Ordinance No. 656 (Commissioners’ Series) viz.: ‘ a building containing only one kitchen, designed for or used to house not more than one family, including all necessary employees of such family, ’ together with use of the garage building for the sole purpose of providing shelter or storage of vehicles owned or operated by the plaintiffs or members of their family or their employees, and the use of the tool shed on said premises for the purpose of storing tools, equipment and other materials. ’ ’ The judgment also restrained the Donovans from using, occupying or maintaining said premises for any purpose not enumerated in the preceding subparagraph A and from violating any provisions of any