Failure to Appear: Standard of Review

Judgment Debtor Examination

Under Code of Civil Procedure § 708.170(a)(1)(B), failure to appear at a judgment debtor examination may result in the issuance of a bench warrant, issued pursuant to §1993. Under Code of Civil Procedure §1993, the Court, as an alternative to a contempt of court order pursuant to Code of Civil Procedure § 1209, may instead issue an arrest warrant under certain circumstances.

Code of Civil Procedure § 1993 requires(1) “proof of the service of the subpoena or order”, and (2) “payment of fees as provided in Section 26744.5 of the Government Code” prior to any arrest being carried out. Further, the Court must issue a “failure to appear” notice prior to issuing the warrant, where such notice “may be omitted only upon a showing that the appearance of the person subject to the subpoena is material to the case and that urgency dictates the person's immediate appearance.” (Code Civ. Proc. § 1993(a)(2).)

Fees

Under CCP section 708.170, when an order requiring a person to appear for an examination was served and the person fails to appear the Court may award reasonable attorney’s fees incurred by the judgment creditor, if the person’s failure to appear is without good cause.

Subpoena

“Before issuing a warrant for a failure to appear pursuant to a subpoena. . ., the court shall issue a ‘failure to appear’ notice informing the person subject to the subpoena that a failure to appear in response to the notice may result in the issuance of a warrant.” (Code Civ. Proc. § 1993(a)(2).) A notice of ruling is not a substitute, because it would not be issued by the court.

Right of Release

Code of Civ. Proc. §1993(b)(11) permits the Court to either include the right to release upon promise to appear or not in the bench warrant, and such provision was not included in the bench warrants for John Brown and Tami Brown. Second, when read in conjunction with Code of Civ. Proc. §1993.1, Code of Civ. Proc. §1993(b)(11) appears to only apply to circumstances where the individuals subject to bench warrant have been arrested by the Sheriff, who “may release the person” from custody pursuant to the requirements of Code Civ. Proc. §§1993(b)(11), 1993.1.

Errors in Bench Warrant

In Sakaguchi v. Sakaguchi, the California Court of Appeals held that a one-letter misspelling on a proof of service did not render the subsequent default judgment void. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852.)

Warrant for Arrest

“As an alternative to issuing a warrant for contempt pursuant to paragraph (5) or (9) of subdivision (a) of Section 1209, the court may issue a warrant for the arrest of a witness who failed to appear pursuant to a subpoena or a person who failed to appear pursuant to a court order. The court, upon proof of the service of the subpoena or order, may issue a warrant to the sheriff of the county in which the witness or person may be located and the sheriff shall, upon payment of fees as provided in Section 26744.5 of the Government Code, arrest the witness or person and bring him or her before the court.” (Code Civ. Proc., § 1993(a)(1).)

“Before issuing a warrant for a failure to appear pursuant to a subpoena pursuant to this section, the court shall issue a ‘failure to appear’ notice informing the person subject to the subpoena that a failure to appear in response to the notice may result in the issuance of a warrant.” (Code Civ. Proc., § 1993(a)(2).)

Related Sanctions: Contempt

“Upon the answer and evidence taken, the court or judge shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he or she is guilty of the contempt, a fine may be imposed on him or her not exceeding one thousand dollars ($1,000), payable to the court, or he or she may be imprisoned not exceeding five days, or both. In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.” (Code Civ. Proc., § 1218(a).)