Written by attorney Judith Michael Fouladi

You've Been Cited for Contempt of Court for Violating a Court Order - Now What?

If you're a party to an action, either criminal or civil, and are cited by a judge for contempt of court, the following is important to know:

1.) Is the contempt direct or indirect? Examples of direct contempt is where the alleged citee engages in objectionable conduct or behavior within the court's immediate presence. The citee may say something disrespectful (i.e., "I'll never get a fair trial before this @*!!"), or do something patently offensive in the judge's presence. Indirect contempt, however, occurs outside the judge's presence. Usually, it will involve the violation of a court order, such as an order to make child support payments. In cases of indirect contempt, the court must follow strict procedural due process requirements. Failure to do so renders the court's action void. This legal guide deals will this type of contempt action. The seminal case is Koehler v. Superior Court (2010) 181 Cal. App. 4th 1153, which admonishes judges in unequivocal language when imposing a fine or sentencing a citee to jail without strictly observing applicable procedural requirements specified in the Code of Civil Procedure. The Koehler case makes it clear that any judge who invokes the power of contempt without knowing or learning proper procedure is guilty of misconduct -- amazingly stong language.

A.) Indirect contempt proceedings are initiated by presenting to the court or judge an affidavit (or declaration) of the facts constituting contempt, or a statement of facts by a commissioner, referee, arbitrator, or other judicial officer (CCP section 1211 (a)). If this requirement is satisfied, the Court may issue a signed Order to Show Cause (OSC) in re Contempt.

B.) The failure to issue a written, signed OSC and affidavit for contempt will render any contempt order void and subject to a writ of prohibition. See In re Cowan (1991) 230 CAl. App. 3d 1281. In re Cowan holds that "[t]he complete absence of a charging document...causes an order of contempt to be procedurally invalid." Since an order to show cause "acts as a summons to appear in court on a certain day" and its supporting affidavit, declaration of statement of facts "is like a complaint in a criminal case in that it frames the issues and must charge facts that show a contempt has been committed", these requirements must be strictly observed by trial courts. This affidavit or declaration must specify: (1) a valid order was entered into the record and served upon the citee (or "contemner") on a certain date; (2) that the contemner willfully and contemptuously failed to perform the order or direction by failing to do certain things, or by actively engaging in certain, specified behavior; (3) that the contemner was cited for contempt on a specified date; (4) that the contemner had the power to perform the order or direction at the time it was given, and the contemner continues to have the power to perform the order or direction; (5) that because of the willful and contemptous act described in the accompanying affidavit or declaration, the contemner should be adjudged guilty of contempt and sentenced appropriately under the provisions of sections 1211-1222 of the Code of Civil Procedure.

C.) This written OSC must be personally served on the contemner/citee. Failure to do so will render the citation void. Service by mail is invalid service. If this is the case, all subsequent orders the court may issue are void. (see Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal. App. 4th 1281.)

The proper vehicle to address any improperly issued OSC in re contempt is by way of a motion to quash.

Where a judge has properly dotted all of the 't's' and crossed all of the 'i's' in issuing an OSC in re contempt, the judge may sentence the citee to 5 days in jail, a $1,000 fine and require the citee pay reasonable attorney's fees in instances where a third party has to hire an attorney to bring a contempt action for the violation of a court order (see CCP section 1218).

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