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C.A. Says 1958 Decision Has Been ‘Eroded,’ But Underlying S.C. Opinions Ignored
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Div. Two of the First District Court of Appeal has questioned the continued viability of a 1958 decision proclaiming that a superior court may not order that a litigant, represented by counsel, be personally present in court—but two California Supreme Court cases upon which the 66-year-old decision relied are not addressed, and neither has been overruled on the relevant point by the state’s high court.
Briefly examined in an unpublished opinion that was filed Tuesday is the Jan. 30, 1958 opinion by Div. Two of this district’s Court of Appeal in Silvagni v. Superior Court. There, it was observed that “it has uniformly been held that an appearance in response to an order to show cause need not be in person but may be by attorney even though the order to show cause expressly directs an appearance in person, and that an order to appear in person is in excess of the court’s power.”
The case was cited by appellant Annemarie Schilders who was contesting a terminating sanction imposed based on post-trial misconduct on her part in a divorce case, focused primarily on her refusal to appear in court in defiance of orders to be present. The order by San Mateo Superior Court Judge Sean Dabel ends the litigation, which began in 2010, except for a retention of jurisdiction for the purposes of enforcement of prior orders and matters that might arise relating to the parties’ minor child.
Miller’s Opinion
In Tuesday’s opinion, Justice Douglas P. Miller said of Silvagni:
“That case has not been directly overruled, but its holding has been eroded over time.”
He made note of Wisniewski v. Clary, decided in 1975 by Div. Three of this district’s Court of Appeal. That opinion, Miller recited, “holds that a court may compel a litigant to attend a mandatory settlement conference.”
In Wisniewski, Justice James Cobey wrote:
“A civil trial may proceed expeditiously without the presence of a party, but…the presence of all parties personally at settlement negotiations enhances their chances of success. For this reason we regard the inconsistent language found in Silvagni…as being overly broad.”
Supreme Court Decisions
One of two 19th Century California Supreme Court decisions cited in Silvagni, which Miller did not undertake to discuss, was the 1898 opinion in Foley v. Foley in which it was held that it did not matter than an alleged contemnor had not been personally served with an order to show cause re contempt where his attorneys represented him at a hearing in response to the order. The opinion declares:
“It was not necessary that he be personally present, nor could he have been required to be so.”
The court in Silvagni also points to the state high court’s 1891 decision in Ex parte Gordan in which it was said that “[i]n civil proceedings…, a party may appear in person or by counsel” and “[t]hat part” of an “order which commanded” a party “to appear in person the court had no power to make.” Although subsequent decisions by courts of appeal have held that those opinions do not control in criminal cases, Miller pointed to no California Supreme Court decision that undermines its decisions in Foley and Gordan as they pertain to a litigant’s right to appear by counsel. (Foley was disapproved by the California Supreme Court in 1957 with respect to an unrelated proposition.)
Court Rule Cited
However, Miller did cite rule 5.9(c) of the California Rules of Court which he said has, since 2013, “authorized the family court to require the personal appearance of a party.”
It provides, in part:
“At its discretion, the court may require a party to appear in person at a hearing, conference, or proceeding if the court determines that a personal appearance would materially assist in the determination of the proceedings or in the effective management or resolution of the particular case.”
Miller noted:
“Annemarie cites several rules of court in her appellate brief, but she says nothing about rule 5.9. We conclude that the family court acted within its authority in ordering Annemarie to appear by telephone or videoconference at hearings in this matter, which it did on numerous occasions, though to no avail.”
No Personal Service
The justice rejected Miller’s contention that the order imposing terminating sanctions was invalid because her ex-husband’s request for that order was not personally served on her. Miller said:
“[O]ver the course of several months, Annemarie, through her attorney of record—who was not acting in limited scope, and who refused to provide an address at which Annemarie could be personally served—was given notice multiple times that terminating sanctions were being considered.”
Expressing exasperation over the conduct of Schilders and her attorney, Ester Adut, Miller said:
“The tortuous history of this matter in the family court is reflected in the 182-page register of actions, the eight hearing transcripts included in the record on this appeal alone, the 16-page description of the relevant procedural history in Annemarie’s appellate brief, and the 17 separate arguments Annemarie purports to raise on appeal. Although the proceedings described in this opinion arose from our straightforward remand of Annemarie’s need-based attorney fee request and our direction to the family court simply to address the relative circumstances of the parties…, Annemarie and her counsel raised obstacle after obstacle to the family court’s consideration of the merits on remand.”
He said in a footnote that Schilders “and/or” Adut “have initiated 24 appeals, beginning with an appeal from the entry of stipulated judgment…, and filed seven writ petitions.”
The case is Stupp v. Schilders, A163971.
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