In re Ringgold

Opinion

I. INTRODUCTION

Petitioner, Nina Ringgold, an attorney, seeks a writ of habeas corpus directing the respondent court to annul a June 2, 2006, order adjudging her in direct contempt of court. Ms. Ringgold, the former trustee of a trust, was held

The trust matter was called for a status conference on May 19, 2006. The following occurred: “Ms. Apanius: Good Morning, Your Honor. [¶] Mary-Felicia Apanius, appearing on behalf of [a trust beneficiary]. [¶] Ms. Raheb: Good morning, Your Honor. Dory Raheb .... I’m appearing on behalf of the attorney, Nina Ringgold. [¶] . . . [¶] Ms. Apanius: . . . [T]here is one matter that we would like to raise, and I’ve discussed this with the trustee. Mr. San[k]ary is unable to appear here today. He’s had a medical problem and asked me to ask this, make this request of the court. In December, Miss Ringgold was ordered to turn over keys and sign off on a storage unit that she rented as trustee of the trust. Judge [Richard G.] Kolostian ordered her to make that transfer within 48 hours of his order, and she never cooperated and signed off on that. The trust is incurring expenses of approximately $300 a month to store what we believe is just miscellaneous personal property owned by decedent Robert Aubry. Miss Ringgold accounted for that property and valued it at $1200. [¶] This is turning into a complete waste of money as far as the trust is concerned, and we’d like to discontinue that storage unit and have Miss Ringgold sign off and get that property distributed to whomever it’s entitled to. [My client] is the beneficiary of Robert Aubry’s will, and she was the person to whom the property was bequeathed. She’s now deceased. She was never able to take possession of that property because of Miss Ringgold’s lack of cooperation on this. And what we’d like to do is just get the property or the storage unit turned over to the trustee. The trustee would like to inspect it, and then we’d like to offer the beneficiaries an opportunity to select whatever items they would like to have, and then any remaining property sold for the benefit of the trust or given to charity. And I have the document here. Miss Ringgold evidently isn’t here to be able to sign off, you know, to transfer the storage unit, but if there’s any possibility you could make some sort of order to get her to sign that, that would really be beneficial to the trust. [¶] The Court: Do you know anything about this? [¶] Ms. Raheb: Of course I don’t, Your Honor. [¶] [Diana] Williams [(a trust beneficiary)]: I do. I just want to add, because it is, it’s

On May 19, 2006, the trial court issued an order to show cause regarding contempt and sanctions stating: “To Nina Ringgold: [¶] Good cause having been shown, you are ordered to appear in this Court ... on June 2, 2006, 9:00 a.m., to show cause why you should not be held in contempt for violating this Court’s order of December 16, 2005, compelling you to cooperate and turnQover to Myer J. Sankary, Trustee of the Aubry Family Trust, all documents and keys necessary to transfer possession of the personal property of decedents Robert Aubry and Mary Aubry located in a storage unit at Public Storage. The proceedings shall determine whether you may be punished under Code of Civil Procedure § 1218, including petitioners’ attorney fees and costs incurred in connection with this contempt hearing.”

Ms. Ringgold appeared at the June 2, 2006 contempt hearing. No effort was made to proceed on the order to show cause. Rather, the following transpired: “Ms. Apanius: Well, Your Honor, you ordered the [order to show cause] and that had to do with the storage unit, and that’s really the only issue [before the court]. [¶] The Court: Okay. Refresh my recollection. [¶] Ms. Apanius: There is property in storage that’s been in storage for some time. Miss Ringgold accounted for it at a value of $1200. What we’re trying to do is just get the storage unit turned over to the current trustee so that he can . . . distribute the property and discontinue that expense. [¶] The Court: Okay. . . . Why didn’t that happen? [¶] Ms. Apanius: The storage unit will not authorize the tum[]over unless Ms. Ringgold signs a document .... We asked her to sign it, and/or the successor trustee has asked her, and she’s not done that. [¶] The Court: Miss Ringgold, why can’t that happen? [¶] Ms. Ringgold: Your Honor, I’m here procedurally and in a procedurallyafifected [order to show cause] that is not based on an affidavit, and since this is — I’ve been brought to court which under the assumption that I was here on a contempt charge, which doesn’t involve an affidavit. I really don’t feel comfortable responding to that because I’m being asked to respond, and I object to the procedure of being compelled by fax by counsel serving me with an [order to show cause] that doesn’t have an affidavit. [¶] . . . [¶] . . . I’ve already indicated to this court. I’ve appeared twice. This matter is a matter subject to the automatic stay. She’s presenting documents that I’ve never seen. If there’s some issue about an order that they have a challenge

In her habeas corpus petition, Ms. Ringgold declares: “On June 5, 2006 . .. [Ms.] Apanius faxed a copy of the document which was in her hand at the hearing. [Citation.] The document ... is entitled ‘Addendum to Agreement for Moving and Storage Services.’ The customer name on the agreement is incorrect because Nina Ringgold (as an individual) does not have an agreement with Public Storage. The contract Ringgold arranged with Public Storage is specifically in the name of the Aubry Family Trust. The information concerning container numbers is all in the possession of trustee Sankary and he is the only person who has keys.” A copy of the document in question is attached to the petition. It is dated April 19, 2005.

The June 2, 2006 minute order states: “The Court orders Ms. Nina Ringgold to sign the [document] that would allow counsel Mary-Felicia Apanius to transfer possession of the personal property of decedents Robert Aubry and Mary Aubry located in a storage unit at Public Storage. Ms. Nina Ringgold indicates, in open court, her refusal to review and sign said [document]. [¶] The Court finds Nina Ringgold in direct contempt of the Court’s order. Nina Ringgold is sentenced to the County Jail for five (5) days. Execution of sentence is stayed until June 7, 2006. Court states that Nina

A written contempt order was issued on June 6, 2006. The written contempt order, which is erroneously entitled, “Order to Show Cause Re Contempt” states: “On June 2, 2006, you appeared in court in the above captioned matter. The matter was called and you announced your appearance. The Court was in regular open session with the judge enrobed and on the bench. [¶] Part of the reason for the hearing on June 2, 2006 was a written order to show cause why you should not be held in contempt for failure to sign documents and transfer keys necessary to transfer possession of personal property of decedents Robert Aubry and Mary Aubry. This order to show cause re contempt and sanctions was signed by the Court on May 19, 2006 and served [on] you by opposing counsel. [¶] In open court, the Court asked you to sign the document and you refused. The Court then, in open court, ordered you to sign the document that was placed in front of you by opposing counsel. You were warned that you would have a three day grace period before going into custody and asked by the Court if that is the route you wished to take. The Court then found you in direct contempt and summar[ily] sentenced you to fi[v]e days in jail. The Court issued an automatic stay of execution of jail sentence until June 7, 2006. [¶] The Court advised you that you could cure the contempt anytime you wanted by signing the document. You again refused to sign the document. The Court finds that you had knowledge of the direct order, that you had the ability to comply with the Court’s direct order, that you failed to comply with the Court’s direct order and that your refusal to comply was willful and in direct contempt of the Court’s order.” The May 19, 2006 order to show cause is not attached to the June 6, 2006 order.

Ms. Ringgold appeared in court on June 7, 2005. She was given another opportunity to once again sign the document: “The Court: I’m going to ask the bailiff to serve Ms. Ringgold the papers. Miss Ringgold, are you going to sign the document? [¶] Ms. Ringgold: Your Honor, can I read what I was handed? [¶] The Court: Of course. [¶] Ms. Ringgold: Thank you. Is this a new order[?] I don’t understand what this document is, Your Honor. [¶] The Court: This is a recitation of what transpired the other day. The question I have for [you] is, are you going to sign the document or are you going to go to jail? [¶] Ms. Ringgold: Without the assistance of counsel, I don’t under-, stand. I would like to have assistance of counsel in reviewing this document, because my understanding is, I appeared here on the 5th of June on an ex parte application requesting that the court serve me with a written order of

Ms. Ringgold filed the present verified petition for a writ of supersedeas, habeas corpus, or other appropriate relief on June 7, 2006. On the same date, we issued a temporary stay order of the jail sentence. We issued an order to show cause on June 22, 2006.

Ms. Ringgold argues the trial court lacked jurisdiction to make the contempt finding because the December 16, 2005 order was the subject of a pending appeal. We disagree. To begin with, Ms. Ringgold was not found in

Ms. Ringgold relies on Baar v. Smith (1927) 201 Cal. 87 , 103 [ 255 P. 827 ], for the proposition that section 917.2 is inapplicable if the petitioner is not in possession of the personal property that is the subject of the order. Baar was decided in 1927 under former section 943, from which section 917.2 was in part derived. (See Historical Note, 18 West’s Ann. Code Civ. Proc. (1980 ed.) foil. § 917.2, p. 479.) Former section 943 then provided in part: “If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order cannot be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court, or a judge thereof, may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.” (Stats. 1897, ch. 64, § 1, p. 56; see Bailey v. Superior Court (1916) 31 Cal.App. 78 , 80 [ 159 P. 990 ].) In Baar, the petitioner was not in possession of the property she was ordered to deliver. (Baar v. Smith, supra, 201 Cal. at p. 103 [“The findings specifically show that [defendant] is not in the present possession of said stock and was not at the time said judgment was rendered; therefore, it would be impossible for her to comply with any order requiring her to deliver such stock to plaintiff; hence, section 943 of the Code of Civil Procedure would be inapplicable. [Citations.]”]; see also McCallion v. Hibernia etc. Soc. (1893) 98 Cal. 442 , 445 [ 33 P. 329 ] [no stay bond required where money was in court’s possession]; Boldemann Chocolate Co. v. Price (1935) 3 Cal.2d 257 , 258-259 [ 43 P.2d 810 ] [no undertaking required where insurance policy was in court clerk’s custody].) There is no merit to Ms. Ringgold’s automatic stay contention.

In the case of In re Wells, supra, 29 Cal.2d at page 201, the Supreme Court described the, what is now, section 1211, subdivision (a) recitation of facts requirement: “It is the general rule in this state that ‘This requirement [that the order recite the facts constituting the contempt] is jurisdictional, and an order which assumes to punish summarily a direct contempt of court is void unless it shows on its face acts sufficient to constitute a legal contempt. The order must contain a statement of facts equivalent to those which the law says must be incorporated in an affidavit for constructive contempt and such facts must prove the contempt. Mere conclusions are not sufficient.’ ” (In re Wells, at pp. 201-202, quoting In re Battelle (1929) 207 Cal. 227 , 256 [ 277 P. 725 ] [direct contempt finding against witness for refusing to answer questions is invalid unless it contains “ ‘an express recital of facts affirmatively showing not only the precise questions which he has declined to answer[,] . . . but also affirmatively setting forth the facts which show the materiality and pertinency of . . . [the] evidence to the issue before the court . . .’”].) The Supreme Court has noted: “ ‘[A]« order which assumes to punish summarily a direct contempt of court is void unless it shows on its face facts sufficient to constitute a legal contempt. [Citations.] Such facts must be stated with sufficient particularity to show, without aid of speculation, that contempt actually occurred. [Citation.]’ (Chula v. Superior Court (1962) 57 Cal.2d 199 , 203 [ 18 Cal.Rptr. 507 , 368 P.2d 107 ], italics added.)” (Boysaw v. Superior Court (2000) 23 Cal.4th 215 , 222 [ 96 Cal.Rptr.2d 531 , 999 P.2d 748 ].) In a similar vein, the Supreme Court has emphasized that the recitation of facts constituting the contempt must be done with “specificity” in the written order. (Ibid.; see In re Littlefield, supra, 5 Cal.4th at p. 129, fn. 6 [“Because we conclude the judgment of contempt must be set aside on the ground the

As will be noted, this case involves the failure of the June 2, 2006 minute order and the June 6, 2006 written contempt order to set forth with the requisite particularity the December 16, 2005 order to provide the documents necessary to transfer possession of the personal property located in the storage unit. It was Ms. Ringgold’s refusal to sign the document that would allow that property to be transferred to its rightful owners that was the contemptuous conduct. But the only reason the refusal to sign the document was a violation of a lawful oral order was because Ms. Ringgold had already been ordered in writing to turn over documents that would allow the trustee to take possession of the property in the storage unit.

In Boysaw and Littlefield, our Supreme Court explained what must be in the written contempt order when the contemptuous conduct arises from a prior court order. In Littlefield, on June 20, 1991, the Supreme Court described the oral order ultimately violated by Wilbur Littlefield, the Los Angeles County Public Defender: “The court ordered the defense to contact the witness by telephone, obtain her address, and provide it to the prosecution, or, alternatively, to produce the witness in court in order to afford the prosecution an opportunity to interview her prior to trial.” (In re Littlefield, supra, 5 Cal.4th at p. 127.) Mr. Littlefield refused to obey that oral order. Yet when the written contempt order was prepared, the following mistake occurred: “The written judgment of contempt makes no reference to this June 20 discovery order directing petitioner to obtain and disclose the address of [the witness]. It refers only to the discovery order made on June 17, and states that petitioner refused to comply with that order. The record, however, does not support a finding that petitioner was held in contempt on June 17 or refused to comply with any discovery order made on that date. Rather, as established by the record, the court held petitioner in contempt for refusing to

The same mistake occurred in Boysaw. A lawyer was ordered not to use an objectionable tone of voice. The Supreme Court explained that the warning (an order) must appear in the written contempt order: “ ‘The record must show that the judge first warned the attorney that his tone of voice and facial expression are offensive. ([In re Hallinan [(1969)] 71 Cal.2d] [1179,] 1185 [ 81 Cal.Rptr. 1 , 459 P.2d 255 ]; Gallagher v. Municipal Court [(1948) 31 Cal.2d 784 ,] 797 [ 192 P.2d 905 ].)’ (In re Buckley, supra, 10 Cal.3d at p. 249, fn. 15, italics added.) Therefore, to support the finding of direct contempt in this case, the order should have recited that petitioner was warned that the tone of voice he was using toward the court was objectionable.” (Boysaw v. Superior Court, supra, 23 Cal.4th at p. 223, fn. omitted.)

Both Littlefield and Boysaw establish a practical and relatively bright line rale for written contempt orders premised on a violation in the presence of the judge of a previous order: a written direct contempt order which is based on the violation of a prior order must describe the prior order. The reference to the prior order must not be an “empty formalism” nor must the description of the prior order “exalt form over substance.” (Boysaw v. Superior Court, supra, 23 Cal.4th at p. 220.) As with other aspects of a written contempt order, the reference to the prior order must: recite the facts (what the prior order directed be done); be stated with sufficient particularity that there is no need to refer to any extrinsic document in order to determine what was required by the prior order (with the caveat that a transcript may be attached to the order so as to put the contemptuous conduct in context); be described with sufficient particularity to demonstrate on its face the ensuing contemptuous conduct violated the prior order; and not consist of the judge’s conclusions regarding the prior order. (See Boysaw v. Superior Court, supra, 23 Cal.4th at p. 220; In re Littlefield, supra, 5 Cal.4th at p. 138.) On an even more practical level, the California Supreme Court has only invalidated written contempt orders because they said too little. Our Supreme Court has never invalidated a written contempt order because it said too much.

The question before us is whether the contempt orders in this case contain sufficient facts to show Ms. Ringgold’s conduct was contemptuous. We find they do not. As noted above, the June 2, 2006 minute order states: “The Court orders Ms. Nina Ringgold to sign the [document] that would allow

The June 2 and 6, 2006 written orders explain that Ms. Ringgold was ordered to sign a document and she refused to do so. The legal effect of the document is described with sufficient particularity. But the contempt orders do not explain with requisite specificity, by reference to the December 16, 2005 order, why she was obligated to sign it. The orders do not recite that on December 16, 2005, Ms. Ringgold was ordered to cooperate and turn over all documents and keys that would allow the trustee to transfer the property in the storage unit to those entitled to possess it. That Ms. Ringgold was ordered to sign a document and she refused to do so are insufficient facts by themselves to satisfy the jurisdictional requirements of section 1211, subdivision (a), as construed by the Supreme Court. The lawfulness of the June 2, 2006 oral order to sign the document was premised on the December 16, 2005 order. As a result, the contempt order is void and must be annulled.

So there is no doubt — had the contempt orders referred with the requisite particularity to the December 16, 2005 order, they would have been valid. In

Two final comments are in order. To begin with, Ms. Ringgold is a lawyer. Business and Professions Code section 6103, which is part of the State Bar Act, states, “A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear . . . constitute causes for disbarment or suspension.” (See also People v. Chong (1999) 76 Cal.App.4th 232 , 243 [ 90 Cal.Rptr.2d 198 ]; Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352 , 372 [ 70 Cal.Rptr.2d 449 ].) Rule 1-100(A) of the Rules of Professional Conduct states, “The prohibition of certain conduct in these rules is not exclusive. Members are also bound by applicable law including the State Bar Act (Bus. & Prof. Code, § 6000 et seq.) . . . .” Canon 3(D)(2) of the California Code of Judicial Ethics states, “Whenever a judge has personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action.” In the event there are future violations of orders, the trial court retains the power to refer Ms. Ringgold to the State Bar of California. If she is again held in contempt for violation of a lawful court order, it is mandatory that she be referred to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(1); In re Aguilar (2004) 34 Cal.4th 386 , 388 [ 18 Cal.Rptr.3d 874 , 97 P.3d 815 ].) We leave these issues in the good hands of the trial court.

Finally, nothing in this opinion should be construed as a statement of views that future efforts to compel Ms. Ringgold to execute appropriate documents would be unlawful. All we are holding is that the written orders under review cannot sustain the June 2, 2006 contempt determination. Her conduct on that date can serve as a basis of a contempt order. The order to sign the document allowing access to the storage unit is otherwise lawful. Future efforts can be made to compel her to obey court orders including the use of contempt powers with the application of the incarceration option.

he petition for writ of habeas corpus is granted. The orders dated June 2, 2006, and June 6, 2006, finding petitioner guilty of contempt, are annulled.

Armstrong, J., and Boland, J.,* concurred.