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Keywords

jurisdictionattorneysubpoenastatutetrialdue processcivil procedure

defendantjurisdictionattorneysubpoenastatuteprecedenthearingtrialtestimonycivil procedure

Related Cases

In re Abrams, 108 Cal.App.3d 685, 166 Cal.Rptr. 749

Facts

Dr. Edward H. Abrams, a medical doctor, was subpoenaed to appear as a witness in a civil action. The subpoena was served on his attorney, Mr. Bernbrock, instead of on Dr. Abrams himself. The process server was informed by Dr. Abrams' secretary that he was not in the office and was directed to serve the attorney. Mr. Bernbrock later contested the validity of the service, stating he did not accept service on behalf of Dr. Abrams. The trial court found Dr. Abrams guilty of contempt for failing to appear as directed by the subpoena.

Testimony at the hearing on the order to show cause re criminal contempt established the following facts: Petitioner, Dr. Abrams, is a medical doctor and Mr. Bernbrock is his retained attorney of many years. Real parties sought to subpoena Dr. Abrams as a percipient witness in a civil action (which has since been settled). Mr. Cornblum, attorney for real parties, gave the subpoena to process server Clarke to serve; it directed Dr. Abrams to appear as a witness on January 21, 1980, bringing with him certain medical records.

Issue

Whether substituted service of a subpoena on an attorney for a nonparty witness can confer personal jurisdiction over the witness for the purpose of holding him in contempt of court.

We must first determine, as a matter of law, whether substituted service of a subpoena on an attorney for a nonparty witness can ever be a valid service sufficient to confer personal jurisdiction over the witness, so that he may be punished for a criminal contempt of court if he does not obey the subpoena.

Rule

Personal service of a subpoena is required to confer jurisdiction over a witness, as specified in Code of Civil Procedure section 1987, which mandates that a subpoena must be served personally unless otherwise authorized by statute.

Code of Civil Procedure section 1987 states a subpoena must be served personally. The pertinent language is: “Except as provided in Sections 68097.1 to 68097.8, inclusive, of the Government Code, the service of a subpoena is made by . . . delivering a copy, or a ticket containing its substance, to the witness personally . . . .”

Analysis

The court analyzed the statutory requirements for serving subpoenas and concluded that the service on Dr. Abrams' attorney did not meet the legal standards for personal service. The court emphasized that the statutes governing subpoenas do not provide for service on an agent, and the lack of personal service constituted a violation of due process. The court also distinguished this case from others where substituted service was permitted, noting that those cases involved ongoing jurisdiction and prior notice to the parties involved.

In upholding this service, the trial court cited precedent which has developed regarding service of a summons. Although Code of Civil Procedure section 415.10 establishes personal service as the preferred method of serving summons, the following statutes, section 415.20 et seq., provide alternate methods of service, such as by mail, leaving at usual place of abode, or service at place of business. Further, section 416.90, stating the general rule of personal service where no other is specified, specifically provides personal service includes service on an authorized agent.

Conclusion

The court annulled the judgment of conviction for contempt and ordered Dr. Abrams to be discharged, stating that he could not be punished for failing to obey a subpoena that was not duly served.

The judgment of conviction of contempt is annulled and the defendant is ordered to be discharged.

Who won?

Dr. Edward H. Abrams prevailed in the case because the court found that the service of the subpoena on his attorney was invalid, thus he could not be held in contempt for failing to appear.

Dr. Abrams was ordered to be discharged. Our temporary stay of execution of sentence shall remain in effect until this judgment becomes final.

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