Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. SCJVSQ015001902
SIMS, Acting P. J.In this ongoing dependency case where the minors are in long-term foster care, M. T., mother of the minors, appeals from orders of the juvenile court approving ongoing medication for the N. T., restraining her conduct outside the courtroom, and continuing the proceedings. (Welf. & Inst. Code, § 395 [undesignated statutory references are to the Welfare and Institutions Code].) In case No. C059410, appellant contends the court erred in making orders to restrain her communication about dependency proceedings with other parents, but does not challenge the medication orders. In case No C059576, appellant raises no issues relating to the continuance of the proceedings. We reverse the contested restraining order in C059410 and affirm both the order in C059410 for medication for the N. T. and the order in C059576 continuing the case.
On its own motion this court consolidated two pending appeals by appellant, C059410, which involves the medication and conduct restraint, and C059576, which is limited to the continuance.
FACTS
Because the issues in this appeal are limited to two orders unrelated to the historical underpinnings of the dependency and the minors’ current status, recitation of the facts will be limited to the circumstances which led to the orders from which the appeals were taken.
In June 2008, the social worker filed an application for ongoing medication for the minor, N. T., age 12. At the June 30, 2008, hearing, the court continued the matter for further review and to allow minor’s counsel to contact the minor. The social worker filed a memo addressing the court’s concerns about whether the medication was ongoing or had lapsed.
At the hearing, before addressing the medication issue, the following colloquy occurred:
“The Court:... I’ve been advised that you’ve been overheard having a discussion with people in other cases out in the hallway.
“Ms T[.]: I was trying to discuss the contested hearings that two clients were being told not to have. And I just was advising the client that I thought that the best option always is to get through to the contested stage....
“The Court:... What else did you tell the people out in the hallway? [¶]... [¶]... Did you say something about whether or not their rights were being appropriately observed?
“Ms T[.]: Appropriately observed. I told them -- and one of them is still out in the hallway right now. I hope you can have her come in and testify. I told them under no uncertain terms your rights will be appropriately observed if you ask for the contested hearing. You must have it as soon as possible. That’s going to determine the outcome of your case from here on out. [¶] And -- and Ms. H[.], J[.] H[.], is out in the hallway right now. I was just speaking with her while -- I think this lady here sat on the bench on the end listening to us for quite sometime. She’s out in the hallway right now. We can have her come in and testify briefly.
“The Court: Ms T[.], I’m just going to order that you not have discussions with people from other cases telling them about anything having to do with their legal rights or whether or not their case has been appropriately brought by the Department or whether the court is handling their case appropriately or what.
“Ms T[.]: Well, I think insofar as the witnesses [sic] right out in the hallway and you’ve made some allegations, we can have her take the stand or even come in the doorway really quickly, and she’ll confirm that they were discussing their need to have the contested hearing. And both the cases I’m speaking of provided me with their names and phone numbers.
“The Court: Okay. Do you understand the court’s order? Do not have those conversations in the hallway with people that have other cases in dependency matters.
“Ms T[.]: Now that I have their phone numbers, I suppose we can have those conversations on the telephone if --
“The Court: And let me go on to say, don’t talk to them about what their legal rights are or you’re practicing law. And I don’t think you got a license to do that. [¶]... [¶]... Do you understand the court’s order?
“Ms T[.]: Yes.”
The minute order for July 14, 2008, does not include this order.
The court then addressed the application for medication, granting the application but giving appellant’s counsel the option to bring a motion to modify if evidence appellant referred to in the hearing became available. Appellant filed a notice of appeal from the orders entered at the July 14, 2008, hearing.
On July 30, 2008, the Human Services Department informed the court that the social worker was ill and requested a continuance of the review hearing scheduled for August 8, 2008. The court granted the continuance. Appellant filed a notice of appeal from this order.
DISCUSSION
Appellant argues the order directing her not to have conversations with other people in the hall who had dependency cases or to talk to them about their legal rights was not supported by any evidence. Appellant asserts that it is unclear from the record who informed the court of her activities in the hall outside the courtroom and what specific concerns the person and the court had about them. Further, the only evidence about what occurred were her unsworn statements that she spoke to other litigants about their right to a contested hearing and her opinion that it was the best option. Appellant argues that none of this information was properly in evidence before the court.
A court has inherent power to issue orders relating to litigation pending before it. (Code Civ. Proc., § 128.) The court’s exercise of this power is subject to review for abuse of discretion. (Santandrea v. Siltec Corp. (1976) 56 Cal.App.3d 525, 529-530 [disapproved on another point in Bauguess v. Paine (1978) 22 Cal.3d 626].) Such orders may relate to administrative matters like determination of the order of proof (Evid. Code, § 320), exclusion of witnesses from the courtroom or other matters which insure that the proceedings are conducted in an orderly fashion, even if it means the court must develop its own procedures and rules for a particular case. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-1379.) These orders arise from the circumstances of managing the litigation and can often be made without reference to factual matters relating to the conduct of a litigant or participant in the litigation.
However, orders designed to preserve order in the litigation or to control the conduct of persons connected to the proceedings may often depend upon particular facts and generally the court must conduct an investigation, even if a formal hearing is not held. (See, e.g. People v. Mar (2002) 28 Cal.4th 1201, 1218 [discussing how a court determines whether shackling a defendant is appropriate]; People v. Ramirez (2006) 39 Cal.4th 398, 457-458 [removal of a juror for misconduct and appointment of an alternate].) Nonetheless, a court may enforce orderly conduct during litigation without a hearing when the facts occur in its immediate presence. (Jayne v. Morck (1941) 43 Cal.App.2d 743, 746 [admonishment to jury that counsel’s smirks were not evidence]; Pedrow v. Federoff (1926) 77 Cal.App. 164, 175 [ordering defendant and witness to stop talking and leave the courtroom]; In re Willon (1996) 47 Cal.App.4th 1080, 1089 [direct contempt by refusal of newsperson to answer questions which would disclose a source, but court must state facts to demonstrate the conduct constituted contempt]; People v. Rainey (1964) 224 Cal.App.2d 93, 97 [court admonished counsel regarding her wearing of a large hat].) In these cases, the necessary evidence will have occurred within the perception of the court and be a part of the court record.
On the other hand, it is commonly the case that the conduct will have occurred outside the court’s presence. In these cases, the court may not rely on rumor, innuendo or matters outside the record, but must make an inquiry and establish the facts before taking action. (People v. Mar, supra, 28 Cal.4th at pp. 1217-1218; People v. Cox (1991) 53 Cal.3d 618, 650-652 [order to shackle a defendant was based on rumors without substantiation on the record] [disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390 and superseded in part by statute - see Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1211]; People v. Castorena (1996) 47 Cal.App.4th 1051, 1066 [court must make inquiry and establish requisite facts before removing juror]; People v. Delamora (1996) 48 Cal.App.4th 1850, 1855-1856 [same].)
Appellant’s conduct in this case was not in the court’s presence so the court made an inquiry to attempt to ascertain what had occurred. Appellant’s remarks make it clear that her conduct in contacting other dependency litigants outside the courtroom did not have any link to, or impact on, the case pending before the court. Thus the court’s order curtailing appellant’s communication was not an attempt to preserve or enforce order in the proceedings.
There are three alternative potential purposes for the court’s order: to preserve the confidential nature of the dependency case, to prevent appellant from harassing or annoying other litigants by interfering with their conversations about their own cases or to prevent appellant from the unauthorized practice of law (Bus. & Prof. Code, §§ 6125, 6126). Even assuming appellant’s unsworn statements constituted evidence, they do not establish factual underpinnings of any of the three purposes.
While it was clear that appellant and the other litigants were discussing, in general, the procedures and practices common in dependency courts, there is no indication that any of them disclosed confidential information about the cases. Further, it appears from appellant’s statements that, far from harassing or annoying the other litigants, appellant was engaging in mutual conversation to the point that telephone numbers were exchanged. Finally, while appellant evidently adamantly supported proceeding to contested hearings in dependency matters, it is unclear whether her statements in this regard were merely her opinion or an attempt to interfere with and direct litigation with which she was not involved.
The court’s order restricting appellant’s conduct was based upon matters outside the courtroom. No order based upon that conduct can be made without an adequate showing the order is justified. Here, not only the purpose to be served by the order is unclear, but there was essentially no evidence before the court to support the order. Making an order restricting appellant’s conduct beyond the courtroom was an abuse of the court’s discretion under these circumstances.
Because we resolve the matter on this ground, we need not address appellant’s claims of denial of due process and interference with her First Amendment right of free speech.
Appellant raises no claims of error with respect to either the order maintaining the minor’s medication or the order continuing the proceedings. Accordingly, these orders will be affirmed.
DISPOSITION
The order restricting appellant’s conversations with other litigants outside the courtroom is reversed. The orders for medication for the minor and continuing the review hearing are affirmed.
We concur: NICHOLSON, J. CANTIL-SAKAUYE, J.