Your presence is requested: the obligation to attend court

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Both judges and attorneys are granted the power to compel parties and witnesses to attend court. This power, however, is not limitless. Generally, persons subject to being compelled to attend court fall into two categories: parties and witnesses. Understanding the power to compel court attendance and differentiating the role of the person in the particular proceeding is important to the proper exercise of this power.

Parties in Civil Cases

Parties in civil cases generally have the right to appear in court by legal counsel throughout the entire action. This includes a corollary that imposes a limitation on the authority of the court to order a represented party to attend court. This rule was made clear in a number of court decisions. As early as 1891, the California Supreme Court recognized in Ex Parte Gordan, 92 Cal. 478, that a party to a civil action "may appear in person or by counsel." It went further, however, noting that this right limited the court's ability to order the represented party to attend a hearing. In that case, the court had ordered the plaintiff to appear in person at an order to show cause hearing. Instead, the plaintiff appeared through his attorney. He was then found to be in contempt of court for not personally appearing. The Supreme Court found that the trial court lacked the authority to order the plaintiff to appear personally.

That principle was repeated more recently in Cohen v. Hughes Markets Inc., 36 Cal. App. 4th 1693 (1995). The court observed: "[I]n a civil litigation the court has no inherent power to order the physical presence of a party before it, except as a witness, at any stage of the litigation."

Settlement conferences are an exception. California Rule of Court 3.1380 mandates that counsel, parties and persons with full authority to settle must attend a settlement conference. Los Angeles County Local Rule 3.25(d)(1) recognizes that in order to have a meaningful settlement conference, a person whose consent is necessary to achieve a settlement must attend the conference. Under the Local Rule if a party's consent is not required to settle the case, his or her attendance is not required.

Witnesses in Civil Cases

Witnesses must generally attend court in civil cases. Of course, parties often are also "witnesses" and thus may be required to attend when they have that additional role.

A witness is a person who provides testimony under oath. CCP Section 1878. Compelling the attendance of a witness at a hearing may be accomplished by means of a subpoena. CCP Section 1985 et seq. The clerk, judge or an attorney may issue a subpoena to require the attendance of a witness before the court. No specific number of days advance notice is required for the service of the subpoena for a witness. Instead, the subpoena must be served so as to allow the witness "a reasonable time for preparation and travel to the place of attendance." CCP Section 1987. The subpoena may be used to compel any witness to attend, whether a third party or a party to the suit.

If the witness is a party to the action, or a person for whose benefit the action is being prosecuted or defended, or an officer, director or managing agent of such party or person, then in place of a subpoena, a written notice requesting the person's attendance can be served on the attorney for that party. Unlike a subpoena, a notice to appear must be served a specified number of days before the required appearance. If the notice seeks the appearance of the party without documents, then the notice must be served a minimum of 10 days before the appearance date. CCP Section 1987(b). If, however, the party is being requested to produce documents, then the service of the notice must be a minimum of 20 days before the date of attendance. CCP Section 1987(c).

Although a witness is obligated to attend court, there are geographic constraints limiting the power to compel a person to attend a civil hearing. Under CCP Section 1989, neither a witness served a subpoena nor a party served a notice to appear need attend unless the witness is a resident of California at the time of service. In Twin Lock Inc. v. Superior Court, 52 Cal. 2d 754 (1959), the Supreme Court reminded all that Section 1989 means what it says. In that case, the superior court had ordered officers and directors of a corporate party to come to California to give a deposition. The Supreme Court held that the order was invalid: "The statute contains no language limiting its application to cases involving a subpoena or contempt proceedings, and the word 'obliged' as used in the section is sufficiently broad to preclude use of indirect as well as direct methods of compelling a witness to attend."

The breadth of the limitation of Section 1989 goes beyond the ordinary situation involving testimony. In Liberty Bank v. Superior Court, 195 Cal. 766 (1925), the Supreme Court construed the statute in the context of a post judgment levy on a bank account. Liberty Bank, located in San Francisco, had refused to honor the levy. The Los Angeles Superior Court ordered the assistant cashier of Liberty Bank to personally appear in the Los Angeles courthouse and show cause why an order should not be made directing him to turn over the funds. (At the time, Section 1989 limited the subpoena power to the county of residence of the witness or 50 miles.) The Supreme Court noted that no matter how the order was characterize, whether a citation or subpoena, the order was void as it was not permitted under Section 1989.

More recently in Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London, 34 Cal. App. 4th 554 (1995), the court emphasized that "a witness is not obliged to appear in court in California unless he is a resident of the state at the time of service. For this reason, a notice to attend trial and bring documents (§ 1987, subds. (b), (c)) served on the custodian of records of a nonresident party is void and unenforceable."

A witness present in the courtroom may also be compelled to testify, even if he or she had not been subpoenaed, or served a notice to appear as a party. CCP Section 1990; see People v. Simon, 107 Cal. App. 2d 105, 122 (1951).

The subpoenaing party and the witness can agree to appear at another time or on such notice as agreed upon. CCP Section 1985.1.

Parties in Misdemeanor Criminal Cases

Much like parties in civil actions, the Penal Code grants defendants charged with a misdemeanor the right to appear by counsel alone, with a few exceptions. Penal Code Section 977(a). If the defendant is accused of a domestic violence crime, he or she must be present at the arraignment and sentencing, and at any time when ordered by the court for the purpose of informing the defendant of the conditions of a protective order. Penal Code Section 977(a)(2).

If the defendant is charged with driving under the influence, "in an appropriate case, the court may order the defendant present for arraignment, at the time of the plea, or at sentencing." Penal Code Section 977(a)(3).

A misdemeanor defendant may elect to not be present at the trial. People v. Cox, 81 Cal. App. 3d Supp. 1, 5 (1978). See Penal Code Section 1043(e).

In fact, it violates the statutory right of a defendant to appear through legal counsel alone when courts adopt blanket rules mandating that the defendant personally appear at hearings (other than those listed in Penal Code Section 977(a)(2) and (3)), absent case specific unique circumstances. In Bracher v. Superior Court of El Dorado Co., 205 Cal. App. 4th 1445 (2012) and Olney v. Municipal Court, 133 Cal. App. 3d 455 (1982), the courts adopted blanket policies requiring misdemeanor defendants to personally appear at readiness, sentencing and settlement hearings. The Local Rule in Bracher noted that it was modeled after California Rule of Court 3.1380(b) requiring the attendance of parties at civil settlement conferences. Nonetheless, the court found the policies violated the defendant's Section 977(a) right to be represented by legal counsel alone. The court noted the hardship that may result in misdemeanor cases by requiring the attendance of the defendant in a relatively small stakes case. See also Simmons v. Superior Court of San Francisco, 203 Cal. App. 3d 71 (1988).

On a cases-by-case basis, the court may order a misdemeanor defendant to personally appear. Olney, 133 Cal. App. 3d at 461. (Defendant need not attend "unless the particular facts and circumstances underlying an individual case justify ordering an accused to personally appear at a particular stage of the proceedings.")

Witnesses in Misdemeanor Criminal Matters

As a general proposition, in criminal cases, the attendance of witnesses is governed by Penal Code Sections 1326 et seq. Penal Code Section 1326 authorizes the issuance of subpoenas for the attendance of witnesses before the court. A "witness" is any person who has been or is expected to testify in the proceeding. See Penal Code Section 679.01.

Much like in the case of a civil matter, there is a geographic limitation on the distance that a witness must travel to attend court. A witness subpoenaed to attend court is not obligated to attend if he or she is not a resident of the county of the court or resides more than 150 miles from the court, unless the party requesting the subpoena has presented to the court an affidavit stating that she believes that the evidence of the witness is material and necessary, and the judge has endorsed on the subpoena an order for the attendance of the witness. This geographic limitation does not, however, apply to a subpoena duces tecum served on a custodian of records or other qualified witness when personal attendance of the witness is not required. Penal Code Section 1330.

Also, similar to subpoenas in civil cases, the witness under subpoena may agree with the party to appear at another time. Penal Code Section 1331.5.

The duty to testify in criminal cases has resulted in provisions that allow the court to take additional steps to insure that a witness shall appear. Penal Code Section 1332 directs that when the court is satisfied by proof under oath that there is good cause to believe that a material witness will not appear and testify, the court may order the witness to enter into a written undertaking to the effect that the witness will appear and testify, or she will forfeit an amount the court deems proper. If the witness refuses compliance, the court may commit the witness to the custody of the sheriff. Such an order is subject to automatic review held not later than two days from the time of the original order of commitment. If the witness must remain in custody, the witness is entitled to a further review after 10 days.

However, the ability to place witnesses in custody to insure that they testify is balanced against an important constitutional right. "The decision to detain in custody a material witness involves weighing important competing rights. 'Article I, section 10 of the, California Constitution guarantees "[w]itnesses may not be unreasonably detained." This constitutional protection is balanced against "[t]he duty [of all citizens] to disclose knowledge of [a] crime...." [Citation.] This duty is considered to be "so vital that one known to be an innocent may be detained, in the absence of bail, as a material witness. [Citations.]"'" People v. Bunyard, 89 Cal. 4th 836, 849-50 (2009).

In such cases, the Supreme Court has emphasized the need to pay particular attention to insure that the procedural safeguards are met. "The unjustified deprivation of a material witness's liberty is a violation of the due process clause of the federal and state Constitutions." Bunyard, 89 Cal. 4th at 850. See also Penal Code Sections 679 et seq.: "civil and moral duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies").

Misuse of Subpoena Power and Court Orders to Compel Witnesses to Attend Non-Evidentiary Hearings?

The foregoing statutes and cases raise some questions for the practitioner and the court. May a party serve a valid subpoena or may the court order a witness to attend a hearing (in either a civil or criminal matter) that is not an evidentiary hearing? Since there is no testimony to be provided, the practice of serving a subpoena requiring attendance at a non-evidentiary hearing appears dubious. So too, ordering a witness to attend a non-evidentiary hearing appears questionable. There are no cases that address either situation, but the use of either a subpoena or a court order compelling attendance is suspect. What might justify imposing an obligation to attend upon a person who shall not testify?

If parties may not be compelled to attend court when their attendance is not as witnesses, there appears to be no justification for compelling non-parties to attend court when they are not to testify. This conclusion is further bolstered by the constitutional right to not be unreasonably detained. While compelled attendance at court is dramatically different from being incarceration, there appears to be no interest justifying even that imposition. One shall have to wait until the situation is addressed by a Court of Appeal to know whether compelling a witness to attend a non-evidentiary hearing is proper.

Douglas W. Stern is a judge of the Los Angeles County Superior Court.