Chula v. Superior Court , 57 Cal. 2d 199 ( 1962 )

GIBSON, C. J.

I concur.

In the usual case of direct contempt all the relevant events occur in the immediate view and presence of the court, whereas indirect contempt ordinarily consists of acts out of the presence of the court. In the present ease we have what might be termed a hybrid situation; the charge of contempt arose from events occurring in the presence of the court which it is claimed should be excused by matters taking place outside the courtroom.

It is obvious that the disruption of judicial proceedings caused by the absence of an attorney occurs in the immediate view and presence of the court. The burden of excusing the obstruction must, of course, be placed upon the attorney. (Lyons v. Superior Court, 43 Cal.2d 755 [278 P.2d 681].) Where the attorney, although notified by the court to appear at a specific time, fails to do so and does not offer an excuse, all matters relevant to the determination of contempt happen in court. In those cases where the attorney seeks to excuse his conduct, the excuse ordinarily will be based on matters occurring out of court. However, the contingency that an attorney who is absent may later offer an excuse should not compel a judge, when instituting proceedings, to treat the conduct as indirect rather than direct contempt.

Much of the procedure required by statute with respect to a charge of indirect contempt (see Code Civ. Proc., §§ 1211, 1212, 1217) would be pointless in a situation like the one before us and is unnecessary for the protection of the rights of attorneys or for the orderly administration of justice. When it is considered that the failure of an attorney to appear at the announced time for resumption of judicial proceedings occurs in the presence of the court and is shown by its records, there is no reason to require the judge to file an affidavit or statement of facts setting forth the basis of the charge of contempt or to require him to give or obtain testimony establishing the facts. The rights of the attorney will be fully protected by an order to show cause apprising him of the charge against him followed by an opportunity to be heard. If the attorney claims that his conduct is excusable, he is entitled to a hearing where he may offer evidence.

Petitioner was apprised of the charge against him by the order to show cause, and he was given a full opportunity to present evidence in support of his claim that his conduct was excusable. Under all the circumstances, the court was justified in concluding that petitioner did not show a satisfactory excuse for his failure to appear as directed.