Filed 2/18/15 Genis v. Super. Ct. CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

DARRYL WAYNE GENIS, 

 Appellant, 

v. 

SANTA BARBARA SUPERIOR COURT, 

 Respondent. 

2d Civil No. B251732 

(Super. Ct. Nos. 1417741, 

1422534, 1423450) 

(Santa Barbara County) 

" 'As an officer of the court, I will strive to conduct myself at all times with dignity, 

courtesy, and integrity.' " 1 (Cal. Rules of Court, rule 9.4 (rule 9.4).) 

 Appellant Darryl Wayne Genis is a criminal defense attorney. At the 

trial court's recess, he instructed the prosecutor, "Try to act a little more professional 

this afternoon." He followed his stern admonition by addressing the prosecutor as, 

"little girl." It is conduct such as this that undoubtedly moved our Supreme Court to 

add the statement in rule 9.4 to the oath taken by every newly admitted attorney. 

The rule's message, however, is not a new one, though it appears to be lost on 

 

1

 The California Supreme Court recently added this statement to the oath taken by 

every attorney at his or her swearing in as a member of the California State Bar. 

(See Bus. & Prof. Code, § 6067.) 
2 

appellant. " 'An attorney has an obligation not only to protect his client's interests 

but also to respect the legitimate interests of fellow members of the bar, the 

judiciary, and the administration of justice.' [Citations.]" (Tenderloin Housing 

Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 306.) 

 Appellant twice complained to the trial judge that the prosecutor's 

sighs were distracting him as he argued his cause.2

 Noting that emotions were 

running "high," the judge told counsel to "take deep breaths" and return after lunch 

to finish argument. During the recess, appellant and the deputy district attorney had 

an off-the-record exchange. It was then that the offensive remark was uttered. The 

remark was overheard by the judge, who had yet to leave the courtroom. 

 Following a summary proceeding, the trial judge found appellant in 

contempt of court. The appellate division of the superior court denied appellant's 

petition for writ of certiorari. He appeals the denial of his petition.3

 While one 

might rightly look upon his conduct as boorish and evidencing gender bias, we 

conclude that a summary proceeding was inappropriate because the conduct at issue 

did not, under the circumstances, constitute a direct contempt. In fact, the conduct 

did not fall within any of the relevant statutory grounds for contempt. Accordingly, 

we reverse and annul the contempt order. 

FACTS AND PROCEDURAL HISTORY 

 Appellant represented the defendants in two misdemeanor cases. At a 

hearing on motions in both cases, he became increasingly frustrated with 

prosecuting attorney Hannah Lucy. Twice during his argument to the trial court, 

appellant stopped to complain about Lucy sighing while he was speaking. The 

second time, the court stopped him. Stating that "[t]here is no reason for emotions 

like that in a motion hearing like this," the court "order[ed] counsel over the lunch 

 

2

 The trial court did not hear the prosecutor's alleged sighs. We have listened to the 

audio recording of the proceeding and cannot discern any audible sighing. 

3

 We have jurisdiction pursuant to Code of Civil Procedure section 904.1, 

subdivision (a)(1), and Bermudez v. Municipal Court (1992) 1 Cal.4th 855. 
3 

hour to take deep breaths and come back and deliver the rest of their argument in a 

professional and a restrained and a logical manner." The court then recessed the 

proceeding. 

 Before the judge left the courtroom, appellant and Lucy had an offthe-record exchange in which he told her, "Try to act a little more professional this 

afternoon." She "smirked" at him. He then called her a "little girl." Another 

prosecutor called the incident to the judge's attention. The judge acknowledged that 

appellant "called Ms. Lucy a name, a disparaging name," and stated that she would 

address the issue after the lunch break. 

 When the court resumed after lunch, the judge explained that she had 

heard appellant call Lucy a "little girl" and that the remark "appears to be 

disorderly, contemptuous or insolent behavior toward me, as well as opposing 

counsel, while holding court and a breach of the peace tending to interrupt the due 

course of this judicial proceeding, as well as a violation of [his] duty as an attorney, 

for example, the duty to maintain the respect due to the Court." The court ordered 

appellant to show cause why he should not be held in contempt and gave him "the 

opportunity to explain, provide an excuse, if there is any, or give an apology." 

 Appellant apologized to Lucy and the court and admitted that his 

comment "clearly was wrong." He explained that it was "precipitated" by Lucy's 

"sighing loudly in my right ear, breaking my train of thought, hemming and hawing 

and behaving in [an unprofessional] manner." He claimed that this had happened 

before. He expressed his opinion that Lucy "knows that if she agitates me enough, 

that she can get me to be provoked so that I will respond in the way I did." He said 

he "fell into the trap." 

 The court found that appellant's apology was "disingenuous" because 

he inappropriately "put the blame back on Ms. Lucy," whose behavior did not 

warrant his response. In addition, the court thought that the term "little girl" was 

"gender biased." The court found appellant in contempt beyond a reasonable doubt 

and fined him $1,000. 
4 

DISCUSSION 

 On appeal from the denial of a petition for writ of certiorari as to a 

judgment of direct contempt, the sole question we consider is whether there is 

substantial evidence in the record as a whole to sustain the trial court's jurisdiction. 

(McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 536.) We construe the 

evidence, findings, and judgment strictly in favor of the contemnor. (See Koshak v. 

Malek (2011) 200 Cal.App.4th 1540, 1549) "[T]he proper interpretation of a statute 

or rule of court relied upon by the trial court as its authority to award sanctions is a 

question of law, which we review de novo. [Citations.]" (Vidrio v. Hernandez

(2009) 172 Cal.App.4th 1443, 1452; see In re Willon (1996) 47 Cal.App.4th 1080, 

1089 [where underlying facts are undisputed, court's finding that they were 

sufficient to constitute contempt "presents a mixed question of law and fact which is 

subject to independent appellate review"].) 

 "When a contempt is committed in the immediate view and presence 

of the court, or of the judge at chambers, it may be punished summarily . . . ." 

(Code Civ. Proc., § 1211, subd. (a).)4

 In such a situation, known as direct contempt, 

the trial court must issue an order reciting the facts, adjudging the person guilty, 

and prescribing the punishment. (Boysaw v. Superior Court (2000) 23 Cal.4th 215, 

219-220.) The court must state the facts with sufficient particularity to demonstrate 

without speculation that the conduct constituted a legal contempt. (In re Ringgold

(2006) 142 Cal.App.4th 1001, 1012.) An indirect contempt " 'require[s] a more 

elaborate procedure to notify the person charged and to afford an opportunity to be 

heard. [Citations.]' " (In re Koehler (2010) 181 Cal.App.4th 1153, 1159; see 

§§ 1211-1217.) 

 Appellant claims that this was an indirect contempt case and cites a 

number of procedural protections that he did not receive, such as the right to 

counsel and the right to call witnesses. (See, e.g., Application of Shelley (1961) 

 

4

 All statutory references are to the Code of Civil Procedure unless stated otherwise. 
5 

197 Cal.App.2d 199, 202 ["Due process in [indirect] contempt cases includes a 

reasonable opportunity to the accused to prepare and present his defense . . ., and 

the right to be represented by counsel"].) Respondent does not dispute that he 

lacked these procedural protections. Rather, respondent argues that the contempt 

was direct and that no such protections were required. 

 In general, direct contempt is " 'contempt for acts occurring in the 

courtroom and interfering with the orderly conduct of business.' " (Wanke, Indus., 

Commercial, Residential, Inc. v. Superior Court (2012) 209 Cal.App.4th 1151, 

1164, fn. 16, italics added; see In re Bell (Tex. Spec. Ct. Rev. 1995) 894 S.W.2d 

119, 129 [holding that person who upbraided judge in courthouse for being late 

"was not in direct contempt because his acts were neither in the presence of the 

court, nor did they impede the administration of justice"].) At common law, a court 

could exercise its contempt power "to preserve order, decency and silence, without 

which no Court could vindicate or support the laws entrusted to its administration," 

but only "while engaged in the performance of its lawful functions . . . ." (People ex 

rel. Field v. Turner (1850) 1 Cal. 152, 153.) The original contempt statute, which 

codified the common law doctrine, thus permitted summary contempt proceedings 

only for "such contempts as are committed in the presence of the Court during its 

session." (Id. at p. 155, italics added.) 

 "[T]he distinction [between direct and indirect contempt] finds its 

reason, not any more in the ability of the judge to see and hear what happens in the 

open court than in the danger that, unless such an open threat to the orderly 

procedure of the court and such a flagrant defiance of the person and presence of 

the judge before the public in the ''very hallowed place of justice,'' as Blackstone 

has it, is not instantly suppressed and punished, demoralization of the court's 

authority will follow. . . . [¶] When the contempt is not in open court, however, 

there is no such right or reason in dispensing with the necessity of charges and the 

opportunity of the accused to present his defense by witnesses and argument." 

(Cooke v. United States (1925) 267 U.S. 517, 536.) 
6 

 The trial court misunderstood the statutory language "in the 

immediate view and presence of the court" to mean in front of the trial judge's 

person—le tribunal, c'est moi. To the contrary, the trial judge's presence at the 

contempt is neither necessary nor sufficient to justify summary contempt 

proceedings. The trial judge need not be present for the contempt to be direct so 

long as it is " 'committed in the presence of any one of the constituent parts of the 

court . . . .' " (Lapique v. Superior Court of Los Angeles County (1924) 68 Cal.App. 

407, 413.) Conversely, even if the trial judge is present in the courtroom, the 

contempt is not direct if the court is not in session. (Id. at p. 415.) The trial judge 

"is a constituent part of the organization, but he is not the court. . . . The court is the 

totality of the constituent parts. It consists of the entire judicial organization for the 

trial of causes, and it is immediately present whenever and wherever, from the 

opening to the adjournment of the sitting, these constituent parts are actually 

performing their appropriate functions. [Fn. omitted.]" (Mosk, Direct Contempt

(1956) 31 J. State Bar of Cal. 510, 514, italics added.) 

 The current statutory language suggests as much.5

 It allows for 

summary proceedings when the contempt is committed in the immediate view and 

presence of either "the court" or "the judge at chambers." (§ 1211, subd. (a).) If we 

were to treat "judge" and "court" interchangeably in this context, then any 

contemptuous act committed in front of the judge would be a direct contempt and 

the statutory reference to "the judge at chambers" would be superfluous. Wherever 

possible, we avoid constructions that render particular statutory provisions 

 

5

 Section 1211 has remained unaltered since its enactment in 1872 except for minor, 

stylistic changes. Its language was taken from the Practice Act of 1851, which in 

turn appropriated nearly verbatim section 1469 of New York's Field Code of 1850: 

"When a contempt is committed in the immediate view and presence of the court or 

officer, it may be punished summarily, for which an order must be made reciting the 

facts as occurring in such immediate view, and presence, adjudging that the person 

proceeded against, is thereby guilty of a contempt, and that . . . he be punished as 

therein prescribed. . . ." 
7 

superfluous or unnecessary. (City of Alhambra v. County of Los Angeles (2012) 55 

Cal.4th 707, 724.) 

 The phrase "judge at chambers" was most likely added to allow for 

the fact that judges conduct certain formal proceedings in chambers rather than in 

the courtroom. (See Judiciary Act of 1851, § 33 ["The District Judges shall, at all 

reasonable times, when not engaged in holding Court, transact such business at their 

Chambers as may be done out of Court"]; see also, e.g., Clarke v. Ray (1856) 6 Cal. 

600, 604-605 [noting that insolvency statute authorized judges to hear creditors' 

objections either in open court or "at chambers"].) We need not speculate further 

given that the conduct at issue here occurred in the courtroom. Court was not in 

session. There is no transcription or recording of the conversation between 

appellant and the prosecutor. The trial court did not hear what was said before 

appellant called the prosecutor a "little girl." Consequently, appellant should have 

been afforded the full panoply of rights attendant with indirect contempt 

proceedings. (In re Oliver (1948) 333 U.S. 257, 275 [due process does not permit 

summary adjudication of contempt except for a "narrow exception" involving 

"charges of misconduct, in open court, in the presence of the judge, which disturbs 

the court's business, where all of the essential elements of the misconduct are under 

the eye of the court, are actually observed by the court, and where immediate 

punishment is essential to prevent ''demoralization of the court's authority . . . before 

the public'' "]; see Black's Law Dict. (9th ed. 2009) p. 1199, col. 2 [defining "open 

court" as "[a] court that is in session, presided over by a judge, attended by the 

parties and their attorneys, and engaged in judicial business," usually involving "a 

proceeding in which formal entries are made on the record"].) 

 In reaching a contrary conclusion, the appellate division relied on 

Lister v. Superior Court (1979) 98 Cal.App.3d 64, 70, which concluded that the 

term "process" or "proceedings" in section 1209, subdivisions (a)(4), (a)(5), and 
8 

(a)(9),6

 "is used in its technical legal sense and refers to something done or to be 

done in a court of justice or before a judicial officer." The present case, however, 

does not involve these subdivisions. More importantly, Lister was not concerned 

with an act performed before a judicial officer while the court was not in session. It 

involved a prospective juror who had responded to a court questionnaire with 

"impertinent or flippant" answers written in crayon. (Lister v. Superior Court, 

supra, at p. 67.) In holding that the prospective juror was not guilty of contempt, 

the Lister court stressed that the word "proceeding" "refers to something done or to 

be done in a court of justice or before a judicial officer." (Id. at p. 70, italics added.) 

This passage cannot be construed more broadly to mean that an act committed 

anywhere in front of a judge is subject to punishment for contempt. 

 The problems with the contempt adjudication run deeper than the 

inadequate procedure employed by the trial court. Appellant's statement to the 

prosecutor did not constitute contempt.7

 We agree with appellant that, from a legal 

standpoint, there is no such thing as contempt of prosecutor—only contempt of 

court. (See 7 Cal.Jur.3d (2011) Attorneys at Law, § 4 ["In practice, an attorney is 

an officer of the court only in the sense that, in addition to the attorney's duty of 

fidelity to the client, the attorney also owes the duty of good faith and honorable 

dealing to the judicial tribunals before whom the attorney practices"]; cf. Cammer v. 

United States (1956) 350 U.S. 399, 400, 405 [concluding that federal contempt 

statute punishing " '[m]isbehavior of any of [a court's] officers in their official 

 

6 Lister involved former subdivision (a)(8), which was renumbered as subdivision 

(a)(9) in 2011. 

7

 We are not confronted with the more difficult question of whether appellant's 

conduct could constitute contempt as "[d]isobedience of any lawful . . . order . . . of 

the court." (§ 1209, subd. (a)(5).) His disregard of the trial court's instruction to 

"take deep breaths"—i.e., calm down—during the recess arguably violated this 

provision. But the trial court did not cite it as a reason for the contempt finding. In 

fact, the court expressly disclaimed any reliance on appellant's failure to heed its 

admonition as a basis for contempt, noting that the admonition was "not directly 

relevant to [the contempt] proceeding." 
9 

transactions' " did not apply to attorneys—though they often are deemed 

" ' "officers" of the court' "—because "a lawyer is engaged in a private profession, 

important though it be to our system of justice"].) 

 Section 1209 specifies several acts that constitute contempt. The trial 

court found that appellant committed three of these: "[d]isorderly, contemptuous, 

or insolent behavior toward the judge while holding the court, tending to interrupt 

the due course of a trial or other judicial proceeding" (id., subd. (a)(1)), a "breach of 

the peace . . . tending to interrupt the due course of a trial or other judicial 

proceeding" (id. subd. (a)(2)), and "[m]isbehavior in office, or other willful neglect 

or violation of duty by an attorney . . . appointed or elected to perform a judicial or 

ministerial service" (id. subd. (a)(3)). 

 Section 1209, subdivision (a)(1) does not apply because 

appellant's comment was to the prosecutor rather than "toward the judge" and 

was not made while the judge was "holding the court." Subdivision (a)(2) does 

not apply because the court was in recess—appellant's private comment to the 

prosecutor could not have "interrupt[ed] the due course of a trial or other judicial 

proceeding." 

 Section 1209, subdivision (a)(3) also does not apply. The trial court 

focused on appellant's "willful . . . violation of duty." If this were the sole element 

of subdivision (a)(3), then we would agree with the trial court that appellant 

violated his duty of civility to opposing counsel. (See In re S.C. (2006) 138 

Cal.App.4th 396, 412 ["[U]nwarranted personal attacks on the character or motives 

of the opposing party, counsel, or witnesses are inappropriate and may constitute 

misconduct"]; Super. Ct. Santa Barbara County, Local Rules, appen. 5(C)(2) 

["Lawyers should treat judges, counsel, parties, witnesses, and court personnel in a 

civil and courteous manner, not only in court but in depositions, conferences, and 

all other written and oral communications"].) But subdivision (a)(3) applies only to 

attorneys (and others) "appointed or elected to perform a judicial or ministerial 

service." It thus requires more than a showing that the attorney violated his duty as 
10 

an attorney. The attorney must have "willfully neglected [or violated] a judicial or 

ministerial duty." (Gates v. Municipal Court (1992) 9 Cal.App.4th 45, 57, italics 

added.) 

 The purpose of section 1209, subdivision (a)(3) is to give the court "a 

means of protection against . . . attacks upon its character . . . ." (In re Shay (1911) 

160 Cal. 399, 406.) An attorney's out-of-court statement that neither influences the 

judge nor affects the proceedings is not categorically immune, but it must at least 

"tend to degrade the court in the minds of the people." (Ibid.) Appellant's private 

statement to the prosecutor, while inappropriate and insulting to her personally, was 

not an affront to the court as an institution. 

 Respondent's reliance on People v. Whitus (2012) 209 Cal.App.4th 

Supp. 1, is misplaced. The quoted language, pointing out that professionalism and 

civility "is demanded of lawyers, at all times and at all stages of a case" (id. at p. 

13), pertained to the appropriate sanction for the attorney's behavior before the 

appellate division. Ultimately, the Whitus court referred the attorney (appellant) to 

the State Bar for potential discipline. There was no contempt finding at issue. 

Respondent's other authority, In re Buckley (1973) 10 Cal.3d 237, 254, and Hawk v. 

Superior Court (1974) 42 Cal.App.3d 108, 123, are distinguishable in that they 

involved statements made in open court. 

 As we noted at the beginning, rule 9.4 of the California Rules of Court 

now requires attorneys taking their professional oath to swear that they will conduct 

themselves " 'at all times with dignity, courtesy, and integrity.' " Though this 

statement is required to be averred only by new attorneys, appellant would be well 

advised to reflect upon it in his practice of law. 

DISPOSITION 

 The judgment is reversed and the trial court's order of contempt is 

annulled. The clerk of this court is directed to send a copy of this opinion to the 

California State Bar for consideration of disciplinary action against appellant. 
11 

We express no opinion on what discipline, if any, is to be imposed. 

 NOT TO BE PUBLISHED. 

 PERREN, J. 

We concur: 

 GILBERT, P. J. 

 YEGAN, J. 
Jean M. Dandona, Judge 

Superior Court County of Santa Barbara 

_______________________________ 

 Michael Jon Fremont for Appellant. 

 Sedgwick LLP and Douglas J. Collodel for Respondent.