I dissent.
On the authority of Lyons v. Superior Court, 43 Cal.2d 755, 759 [278 P.2d 681], the majority hold that “The failure of an attorney, without valid excuse, to be present in court at the announced time for the sentencing of a client whom he is representing constitutes a contempt committed in the immediate view and presence of the court and hence a direct contempt which the court is empowered to punish summarily under section 1211 of the Code of Civil Procedure.” (Italics added.) Thus, as in the Lyons case, the majority would condone a summary procedure that does not contemplate either notice or hearing. The courts of other jurisdictions that have considered this problem have held uniformly that such a contempt may be adjudicated only after adequate notice and hearing. (Klein v. United States, 151 F.2d 286, 288 [80 App. D.C. 106] ; Lee v. Bauer (Fla. Sup. Ct.) 72 So.2d 792, 793 ; In re Clark, 208 Mo. 121, 146, 149 [106 S.W. 990, 15 L.R.A. N.S. 389] ; Weiland v. Industrial Com. of Ohio, 166 Ohio St. 62, 66 [139 N.E.2d 36] ; Ex parte Hill, 122 Tex. 80, 82 [52 S.W.2d 367] ; State v. Winthrop, 148 Wash. 526, 531-532 [269 P. 793, 59 A.L.R. 1265].) The Lyons ease has stimulated widespread criticism. (39 Minn. L. Rev. 895 ; 7 Hastings L.J. 312 ; 5 Duke L.J. 155 ; 9 Vanderbilt L. Rev. 93.) Its holding appears to be unique.
The classification of contempts as direct and indirect is merely a semantic device for differentiating contempts that can be adjudicated summarily from those that can be adjudicated only after adequate notice and hearing. When a contempt occurs within the “immediate view and presence of the court” the judge is fully informed of all facts necessary to adjudicate the guilt or innocence of the alleged contemner. When, however, the court is not so informed of such facts, notice and hearing are necessary to get them. (Bulcke v. Superior Court, 14 Cal.2d 510, 515 [94 P.2d 1006] ; In re Cunha, 123 Cal.App. 625, 633 [11 P.2d 902, 18 P.2d 979] ; Lapique v. Superior Court, 68 Cal.App. 407, 412, 413 [229 P. 1010] ; see Dangel, Contempt, § 14.) Indeed, due process of law requires notice and hearing in such a case. (In re *209Oliver, 333 U.S. 257, 273-278 [68 S.Ct. 499, 92 L.Ed. 682] ; Cooke v. United States, 267 U.S. 517, 535-537 [45 S.Ct. 390, 69 L.Ed. 767] ; Bulcke v. Superior Court, supra, pp. 514-515 ; accord: Clark v. United States, 61 F.2d 695, 699, affd. 289 U.S. 1 [63 S.Ct. 465, 77 L.Ed. 993] ; In re Collins, 329 Mich. 192, 196 [45 N.W.2d 31] ; see also Carson v. Ennis, 146 Ga. 726, 728 [92 S.E. 221, L.R.A. 1917E 650] ; People v. Rosenthal, 370 Ill. 244, 248-249 [18 N.E.2d 450, 125 A.L.R. 127] ; Cushman Co. v. Mackesy, 135 Me. 490, 494 [200 A. 505, 118 A.L.R. 148] ; In re Clark, supra ; State ex rel. Beck v. Lush, 168 Neb. 367, 370 [95 N.W.2d 695] ; Ex parte Mylius, 61 W.Va. 405, 407 [56 S.E. 602, 10 L.R.A. N.S. 1098, 11 Ann. Cas. 812].)
In stating that “The failure of an attorney, without valid excuse, to be present . . . constitutes . . . a direct contempt” (italics added), the majority opinion itself implicitly concedes that petitioner’s contempt, if any, cannot be subject to summary punishment. The absence of a valid excuse is an indispensable element of the contempt. The trial judge could not discover the nature of the excuse or determine its validity without a hearing.
In the Bulcke case, supra, this court held: " The power of a court to punish [summarily] for a direct contempt is based upon the judge’s knowledge of the commission of the act by the contemner. A judge usually cannot say with any certainty that a letter or telegram received by him purporting to be signed by a certain person was either written or sent by that person; hence such an act, if contumacious, should be classified as an indirect contempt.” Similarly, a judge usually cannot say with any certainty that an attorney’s absence is “without valid excuse.” Hence, such absence, if contumacious, should be punished only after notice and hearing.
The trial judges both in this case and in the Lyons case recognized that they did not have the information necessary to decide the guilt or innocence of the alleged contemners, and so held hearings in which the excuses were presented and judged as to their sufficiency. In the present case the hearing followed formal notice in the form of an order to show cause. In the Lyons case there was no such formal notice. The judge orally ordered the attorney to show cause why he should not be held in contempt and decided immediately upon the validity of the excuse.
Section 1211 and section 1217 of the Code of Civil Procedure establish two procedures for the adjudication of con-*210tempts. The first is summary, and may he invoked when the judge has in his possession all facts necessary for the adjudication of guilt or innocence. The second applies when the judge does not have such facts, and requires that “an affidavit ... be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” The accused is notified of the charge against him, and the affidavit or statement of facts, like a complaint, indictment, or information, frames the issues to be adjudicated at the hearing required by section 1217.
Although the Legislature may not be free to limit the inherent power of constitutional courts to punish contempts by determining that certain acts shall not constitute contempt, it clearly may “provide for the procedure by which such contempt shall be tried and punished. ...” (Bridges v. Superior Court, 14 Cal.2d 464, 480 [94 P.2d 983].) Denial of this power “would be tantamount to a denial of legislative power to regulate the practice and procedure by which our courts are governed, a power which, without constitutional authority, is universally recognized in all states where the code system of pleading and practice prevails.” (In re Garner, 179 Cal. 409, 412 [177 P. 162].) The Legislature “may provide rules of procedure . . . which, if adequate for the purpose designed, must be deemed operative in controlling the action of the court.” (Ibid., p. 413.)
Thus, any departure from the procedure set forth in the Code of Civil Procedure must be justified by a demonstration that they are inadequate, that they provide either too little or too much protection to those accused of contempt. There is no suggestion that the statutory procedures are not sufficiently strict. There is no suggestion that the hearing required by section 1217 is less than that necessary to satisfy due process of law. Apparently any disagreement with the statutory procedures is based upon the view that the notice requirements of section 1211 are too strict. But this requirement, too, is minimum. The order to show cause filed by the judge in this case, for example, is a sufficient statement by a judicial officer to institute proceedings under section 1211.
That order provides: “Please take notice that you George H. Chula, are hereby directed and ordered to appear before this Court in Department 5 thereof at 9:00 a. m., April 14, 1961, then and there to show cause why you should not be held in contempt of this Court for willful failure to obey a *211lawful order of this Court made in this case March 17, 1961, to wit: To appear at 9:15 a. m. before this Court, Friday, March 31, 1961.” By alleging that petitioner’s failure to appear was “willful,” the order meets the requirement that a statement of facts under section 1211 charge knowledge of the order allegedly disobeyed (see Phillips v. Superior Court, 22 Cal.2d 256, 258 [137 P.2d 838]) and ability to comply. (See Mery v. Superior Court, 9 Cal.2d 379, 380 [70 P.2d 932].) Petitioner’s failure was not willful if he did not know of the order or if he was unable to appear through no fault of his own. The allegedly contemptuous act—the failure to appear as ordered—is specified in the order. The order to show cause thus meets the requirements for initiation of indirect contempt proceedings under section 1211 by framing the issues to be adjudicated at the subsequent hearing. (See Commercial Bank v. Superior Court, 192 Cal. 395, 396 [220 P. 422] ; Berger v. Superior Court, 175 Cal. 719, 720-721 [167 P. 143, 15 A.L.R. 373] ; Strain v. Superior Court, 168 Cal. 216, 220-222 [142 P. 62, Ann.Cas. 1915D 702] ; Frowley v. Superior Court, 158 Cal. 220, 222 [110 P. 817] ; Otis v. Superior Court, 148 Cal. 129, 130-131 [82 P. 853] ; Sutton v. Superior Court, 147 Cal. 156, 159 [81 P. 409] ; Rogers v. Superior Court, 145 Cal. 88, 91 [78 P. 344].) The hearing held completed the procedure in accordance with section 1217 of the Code of Civil Procedure.
The procedure followed in the Lyons ease did not comply with section 1211, for the oral “order to show cause” employed by the judge in that case gave the accused no time to prepare his defense, to obtain assistance, or to marshall evidence in support of his explanation. There is no justification for permitting trial judges to institute contempt proceedings in eases of this kind without providing meaningful notice and time for preparation.
The statutory procedures for contempts as to which the court is not fully informed are entirely adequate for this kind of case, and are therefore controlling. (In re Garner, supra.) Judicial creation of a new procedure, unelaborated by statute or by a background of decided cases, can only add confusion that may easily be avoided by use of the well-defined statutory procedures with which our courts have had extensive experience. Anything less than the protections afforded by these procedures would be inadequate.
Although the proper procedures for adjudicating the contempt charged in this case were followed, the facts established *212do not support the judgment. Petitioner was not sole counsel for his client, for the client had retained the firm of Monroe and Chula to represent him and Monroe represented the client before and during the trial. “We will take judicial notice of the fact that in California it is, and for a long time has been, a general custom sanctioned by recognition of the courts for attorneys at law singly and by firms to employ attorneys at law to assist in legal work placed in their care, including appearances in court without the formality of being made attorneys of record. . . . The simple action of petitioner in line with the established custom neither satisfied the requirements of contempt of court nor the requirements for conviction of that offense.” (Raskin v. Superior Court, 138 Cal.App. 668, 670 [33 P.2d 35].) In the Baskin case it was held that a substitute could not be held in contempt merely for appearing as a substitute. Similarly, the principal attorney who procures a competent substitute cannot be held in contempt.
Petitioner testified that he obtained a substitute, an associate in his office, because he was to be away in connection with another case. His testimony was supported by that of his associate and substitute. This testimony is not in conflict with the client’s statement that “I stopped at his office and he said he’d be here at 9 :15, but he isn’t here.” The court asked only where the client’s “counsel” was, and he did not indicate to whom he had spoken. Since other attorneys than petitioner represented the client, there is no basis for inferring that the client spoke to petitioner rather than to one of the others. Moreover, the client did not say whether he had stopped at petitioner’s office on the morning of the hearing or at some previous time.
Had the substitute appeared punctually, there would have been no basis for a contempt charge. Nor can petitioner be punished for his substitute's tardiness unless he authorized or should have foreseen it. Even if the facts might support a charge of contempt against the substitute, they do not support such a charge against petitioner.
Of course unexcused absences by counsel cannot be condoned. Even though the record indicates that petitioner has frequently failed to appear in court when he should, he was not charged with such misconduct and it cannot justify holding him in contempt of an order he did not violate.
Peters, J., and Dooling, J., concurred.