How Many Contempts?

Moore v. Superior Court, No. G058609 (D4d3 Nov. 11, 2020)

A trustee’s Attorney in a probate case got hit with a civil contempt judgment for misconduct during a settlement conference. Allegedly, he was rude and abusive to the other parties and the settlement officer, he accused opposing counsel of lying without affording any explanation. He refused to discuss settlement. And when the officer threatened to go to the judge, Attorney objected on the grounds that the settlement proceedings were confidential. The trial court found him guilty on these four counts and fined him $900 per violation. It also ordered him to pay the opposing party’s fees for the contempt litigation under Code of Civil Procedure § 1218(a).

An interesting side point—a contempt judgment is both final and nonappealable. See Code Civ. Proc. §§ 904.1(a)(1); 1222. So the judgment gets reviewed though a writ of review, which is not much used in other contexts. 

Attorney raises a number of grounds, but only one gets traction—the unit of prosecution. Attorney says all four alleged contempts arise from a single course of conduct during a fifteen minute settlement conference. Relying on Penal Code § 654, Attorney argues that fining him four times punishes him multiple times for the same act. The Court of Appeal agrees. Although the unit of offense rules are pretty fuzzy, contempt cases seem to limit multiple charges of contempt to separate, discreet acts. When, like here, there’s only one core incident, there’s only one punishable offense. So the Court of Appeal knocks the four counts down to one.

It also strikes the attorneys’ fees. Section 1218(a) permits a fee award for contempts where the contempt consists of violating a court order. That’s not the issue here. Attorney might have earned the contempt by being rude and disrespectful, but he didn’t violate any court order. So a fee award under § 1218(a) was not authorized.

Reversed in part.