Stanley Mosk Courthouse
Scott J. Nord
Judge
Los Angeles County Superior Court
Family Law
Whittier Law School, 1996
Discovery is routine in most civil and criminal cases. In civil contempt proceedings, however, one fundamental question remains unanswered: Should discovery follow the rules governing civil litigation or those governing criminal prosecutions?
California law provides no definitive answer. There is a lot of conjecture and people have their opinions (including in a well-known treatise on contempt), but there is not a specific case or statute that specifically holds how to conduct discovery in a civil contempt proceeding. But let me explain the competing sides.
Consider this hypothetical. X has a child support order against Y that requires Y to pay X the sum of $350 per month on the first of each month. Two years after the Order was originally made, X filed for contempt against Y for failure to pay five months over the past two years. Y was properly served with the contempt paperwork, and a date was set for Y to appear in court.
These appear to be pretty simple facts and the case should be simple. But, as is the case, looks can often be deceiving.
A. Understanding the basics
So let's start with the basic principles of contempt. Contempt can be brought under two different statutes. PC (PC) Section 166(a) allows for contempt in nine (9) different scenarios. In our hypothetical, Section 166(a)(4), "Willful disobedience of the terms, as written, of a process or court order or out-of-state order, lawfully issued by a court, including orders pending trial," or Section 166(a)(5), "Resistance willfully offered by a person to the lawful order or court process," could theoretically apply to the above situation. Section 166(a) provides that being found in contempt is a misdemeanor. Similar to PC, Section 166, California Code of Civil Procedure (CCP) Section 1209(a) sets out 11 scenarios for which a person can be held in contempt of court. For our purposes, Section 1209(a)(5), "Disobedience of any lawful judgment, order, or process of the court," could apply. As we know, only a prosecutor (district attorney or city attorney) can bring charges under the PC.
B. But is it civil or is it criminal?
Let's break down the issue and look at it piece by piece. Family law is Judicial Council Form-driven, and most forms are mandatory (as I teach my students, if you are not sure if it is mandatory or optional, look in the lower left side of the document and it will tell you). In our case, Form FL-410 is a mandatory form for an "Order to Show Cause and Affidavit for Contempt." ("OSC Re: Contempt," Family Code, Section 292). In civil practice, this would be a document created on pleading paper, as there is no equivalent in the Civil Judicial Council Forms. (See CCP, Sections 1211.5-1214.) The following apply whether the matter is filed using the PC or the CCP.
Arraignment
As stated above, when an OSC Re: Contempt is filed, the clerk's office sets a date, and this is regularly considered the arraignment date. The CCP does not speak of what occurs between the filing of the contempt (or OSC Re: Contempt) and Trial (CCP, Section 1217), but PC, Section 988 provides the procedure for what is to occur at the arraignment. This process is followed both criminally and civilly.
Right to counsel
Since this is "criminal in nature," reading further down the FL-410, the next sentence reads, "You are entitled to the services of an attorney, who should be consulted promptly in order to assist you. If you cannot afford an attorney, the court may appoint an attorney to represent you." PC, Section 987, provides for the appointment of counsel in criminal proceedings. In fact, Section 987(a) places the burden on the court to ensure a party is aware they have a right to counsel and, if they cannot afford counsel, to offer the accused, if they desire, the services of counsel at no charge to defend them. A party has the right to counsel before they are arraigned.
Speedy trial
Assuming the party pleads not guilty, the Speedy Trial Rights (PC, Section 1382) commence and have strict guidelines for the matter to proceed. Since most parties in contempt are out of custody, the trial must start within 45 days, unless the citee waives time.
Right against self-incrimination
The Fifth Amendment to the U.S. Constitution protects individuals from being forced to provide testimony or evidence that could subject them to criminal prosecution. In our context, the citee cannot be compelled to testify or provide evidence which would support the finding of guilt against them. This becomes problematic when they may be the only person who has the necessary financial information to prove contempt.
Right to a jury trial
Whereas in any misdemeanor or felony criminal proceeding, regardless of the length of time a party may serve in jail or prison, in contempt proceedings a party is only entitled to a jury trial if the total jail sentence for each act of contempt combined totals more than 180 days. Previously in a proceeding on contempt, the contemner had no right to a jury trial. (See Bridges v. Superior Court of Los Angeles, 14 Cal.3rd 464 (1939)) However, as stated in Mitchell v. Superior Court, 49 Cal.3d 1230, 1241-1242 (1989), "A term of imprisonment, in and of itself, will render such an offense ' serious'--and hence trigger a right to jury trial--if the authorized term of imprisonment is greater than six months." If a party could face imprisonment of more than six months, then the party must be advised of their right to a jury trial and must waive that right if they wish to proceed by bench trial. If less than 180 days, a party is not entitled to a jury trial by right and cannot ask for one.
Confront and cross-examine witnesses, subpoena witnesses and present evidence
The Sixth Amendment to the U.S. Constitution provides that a party may face their accusers in court. Further, the citee has the opportunity to cross-examine their accuser, and any witnesses offered against them, and challenge the evidence presented. Further, the citee can use the power of the court to subpoena witnesses (commonly referred to as the Compulsory Process Clause) and present evidence on their own behalf.
Punishment
In a box approximately one-third of the way down the page, the form instructs the reader that "A contempt proceeding is criminal in nature. If the court finds Y in contempt, the possible penalties include jail sentence, community service, and a fine." Notice, one of the remedies not offered is the one most sought, payment by the citee of unpaid outstanding support obligations. PC, Section 15, states the following: "A crime or public offense is an act committed or omitted in violation of law forbidding or commanding it, and to which is annexed, upon conviction either of the following punishments: 1. Death; 2. Imprisonment; 3. Fine.; 4. Removal from office; or, 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State."
Standard of proof
Whether brought in a civil or criminal context, the standard of proof is beyond a reasonable doubt. The standard of proof in most civil contexts is preponderance of the evidence. In certain types of cases, such as fraud, certain wills and trusts matters, and punitive damage claims, the standard of proof is clear and convincing evidence.
Elkins
In family law, it is generally accepted that bench officers are to be active participants (i.e., ask questions) in the proceedings to obtain the information necessary to make informed decisions. (See Elkins Commission Report). As one of my colleagues likes to say, "We are not just potted plants sitting up here." But that does not apply to contempt proceedings. In contempt matters, the court is a potted plant waiting to decide on guilt. It does not usually ask questions or assist the parties in providing evidence for their case.
C. Discovery
With this in mind, let's turn to the issue of discovery. Because we are dealing with two different codes, they provide for very different methods for conducting discovery. Discovery under the PC is laid out in Section 1054, et seq. Specifically, 1054.1 provides as follows:
Discovery processes
"The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. (b) Statements of all defendants. (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. (e) Any exculpatory evidence. (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."
Discovery in civil proceedings is covered by the Discovery Act (CCP, Section 2016.010, et seq.) Under the Discovery Act, a party can conduct discovery in numerous ways: Section 2019.010 provides as follows: "Any party may obtain discovery by one or more of the following methods: (a) Oral and written depositions. (b) Interrogatories to a party (c) Inspections of documents, things, and places. (d) Physical and mental examinations. (e) Requests for admissions. (f) Simultaneous exchanges of expert trial witness information." (In order: Sections 2020.010, et seq.; 2028.010, et seq.; 2031.010, et seq.; 2032.010, et seq.; 2033.010, et seq.; and 2034.010, et seq.)
Responding to discovery
Under the PC, Section 1054.5(a) provides that "No order requiring discovery shall be made in criminal cases except as provided in this chapter." Section 1054.5(b) provides that "Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure."
Under the CCP, the period for responding to written discovery (Interrogatories, Request for Admissions and Request for Production of Documents) is 30 days (plus additional time for service (between two to five days, depending on mail or email). (CCP, Sections 2030.210, 2031.210, 2033.210). Other discovery tools have different time periods, depositions being set 10 days after notice (CCP, Section 2025.270) and additional time if documents are being requested (CCP, Section 2020.410) and distance limitations (CCP, 2025.250). Further, discovery requests can be subject to motions for protective orders, and incomplete or unanswered discovery could require a meet and confer and a noticed motion to compel responses or appearances at depositions. (CCP, Sections 2025.450, 2025.480, 2030.300, 2031.310, 2033.290).
D. Real life application and why it matters
So back to our hypothetical: Y has been arraigned and does not waive time. This means Y's trial must begin within 45 days. Let's look at Y's options under both the PC and CCP.
Under the CCP
Other than setting X's deposition, any written discovery would need to be sent out immediately and, if properly responded to, would not be returned until approximately 10 to 13 days before trial if sent on the same day as the arraignment. Assume X does not respond. Y has two choices. Y can either file a Motion to Compel, which will not be heard before the time for trial, or waive time for trial. Most motions are not heard until at least 60-90 days after they are filed. Thus, in essence, this forces a citee to waive their right to a speedy trial or proceed without the desired discovery. It should be noted in civil contempt that, absent discovery being sent to the party bringing contempt, the party bringing contempt is under no obligation to turn over any documents or evidence supporting the contempt allegations to the citee.
Under PC
Under the PC, Section 1054.1, the prosecuting party has a duty to turn over all evidence informally, without a discovery demand. A defending party may also seek discovery informally under Section 1054.5 for the "desired materials and information." If the information is not provided within 15 days of the informal demand, the court, upon showing that the party seeking discovery complied with informal demand requirements, may issue any order necessary to enforce the provisions of 1054.1, including evidence or witness preclusion sanctions or any other lawful order. Because this matter can be brought without the time limitations of a Motion to Compel in the civil context, Y would not necessarily be required to waive Y's Speedy Trial Rights and could still obtain the discovery materials needed to defend against the allegations.
Brady Rule
One other thing that must be mentioned is Brady. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court established what has commonly come to be known as the "Brady rule." In Brady, the Court stated, "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Id. at 87) Generally speaking, the Brady Rule requires prosecutors to disclose all material exculpatory and impeachment evidence to the defense.
So now back to Y for a moment. Let's assume that X responds to the discovery within the timeframe and X provides all the proofs of payment but is missing the five alleged payments, which is the basis for the contempt. X has posited that the payments were not made by check but by money orders. Y does not provide those money orders as part of the discovery response, only copies of checks. Copies of the money orders were found by X days before the hearing but after the initial discovery responses were sent. Under the CCP, there is no obligation, unless asked by additional discovery, to supplement your discovery responses. So X is under no legal obligation to turn over those found missing payments. Under Brady, X is required to turn over those documents to Y. However, since no one asked for additional discovery nor was there time to do so, and without proof, Y changes Y's plea from not guilty and pleads guilty to the contempt.
E. Conclusion
Some will say the PC is for penal offenses and the CCP is for civil matters. An argument can be made that contempt is "a special proceeding of a civil nature," which means that civil discovery should apply. (See People v. Superior Court (Cheek), 94 Cal.App. 4th 980, 989 (2001). The PC talks in terms of misdemeanors, felonies, and infractions, and the CCP makes no mention of those words. (See also PC 690, which says "shall apply to all criminal actions and proceedings in all courts." But, as pointed out above, penal offenses bring almost the same punishment, in the case of contempt, as civil contempt. The Rights afforded are identical (minus Brady). The person bringing the contempt is offered compared to the "prosecutor," and they must prove their case by the same standard (beyond a reasonable doubt) as a case brought under the penal code.
As stated in Yohner v. California Dept. of Justice, 237 Cal.App.4th 1, 8 (2015), "the words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context. If the statutory language is unambiguous, 'we presume the Legislature meant what it said, and the plain meaning of the statute governs.'" "If... the statutory language is ambiguous or reasonably susceptible to more than one interpretation, we will 'examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes,' and we can 'look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.'"
So should civil contempt be treated the same as criminal contempt? Should or could a court use both the Penal Code or Code of Civil Procedure for contempt discovery? It depends...