Andrews v. Joint Clerks Port Labor Relations Committee,San Francisco

• Decision Date: 11 January 1966
• Citation: 48 Cal.Rptr. 646,239 Cal.App.2d 285
• Court: California Court of Appeals Court of Appeals
• Parties: Peter N. ANDREWS et al., Plaintiffs and Appellants, v. JOINT CLERKS PORT LABOR RELATIONS COMMITTEE, SAN FRANCISCO, an unincorporated association, et al., Defendants and Respondents. Civ. 22504.

Page 646

48 Cal.Rptr. 646

239 Cal.App.2d 285

Peter N. ANDREWS et al., Plaintiffs and Appellants, v. JOINT CLERKS PORT LABOR RELATIONS COMMITTEE, SAN FRANCISCO, an unincorporated association, et al., Defendants and Respondents.

Civ. 22504.

District Court of Appeal, First District, Division 1, California.

Jan. 11, 1966.

Rehearing Denied Feb. 2, 1966.

Hearing Denied March 9, 1966.

Howard B. Crittenden, Jr., San Francisco, for appellants.

Richard Ernst, G. L. Munter, Jr., G. A. Laster, George R. Andersen, Gladstein, Andersen, Leonard & Sibbett, San Francisco, for respondents.

SULLIVAN, Presiding Justice.

The fundamental question which we must decide in this case is whether the trial judge was disqualified to act because of a peremptory challenge directed against him pursuant to the provisions of Code of Civil Procedure section 170.6. As we explain infra, we have concluded that the instant proceeding in which disqualification was sought, although designated by a different number in the court below, was in reality a part and continuation of other proceedings pending therein in which the same trial judge had previously heard a matter involving a contested issue of law or fact and that the motion for his disqualification was therefore not timely made. Additionally, we find no error in his disposition of the proceedings below. We therefore affirm the order and judgment appealed from.

We set forth a chronology of the pertinent procedural events giving rise to the present controversy: On March 26, 1962 plaintiffs and appellants in the instant action (No. 541755) ¹ and other parties brought an action in the court below (No. 520151) ² against defendants and respondents in the instant action and other parties ³ alleging a breach of a certain collective bargaining agreement and seeking the issuance of a writ of mandate, declaratory relief and damages. In essence, the plaintiffs in the 1962 action claimed that they had been arbitrarily discriminated against in connection with the employment, registration, selection, dispatching from hiring halls, and compensation (including pension and welfare benefits) of ship clerks in the Port of San Francisco.

On February 19, 1963, after various intervening pleadings and procedures not here material, defendants therein moved for a summary judgment 'on the ground that plaintiffs have failed to exhaust the grievance procedure provided by the collective bargaining contracts' relied upon by them and, in the alternative, for a stay of said action 'on the ground that the issues in this action are subject to the grievance procedure under the governing collective bargaining contracts which include a provision for arbitration.' ⁴ On March 28, 1963, the Honorable Joseph Karesh signed and filed in action No. 520151 an order providing among other things 'That further proceedings in the present action are stayed pending submission of the issues in this action to the grievance arbitration procedure under the governing collective bargaining contract.' ⁵

The file in action No. 520151 discloses a copy of a letter dated March 28, 1963 from plaintiffs' counsel, Mr. Crittenden, ⁶ to the arbitrator, Professor Kagel, questioning the existence of any arbitration provision in the collective bargaining agreement; suggesting without prejudice to such position that the arbitrator make his necessary determinations, including determinations as to whether there was a written contract for arbitration and whether he had jurisdiction in the matter; setting forth certain legal theories supporting the plaintiffs' position; and requesting that the arbitrator immediately set the matter for hearing. This letter also requested that, if there was an applicable provision therefor, there also be arbitration of alleged discrimination against the plaintiffs arising out of the fact that they had brought and were maintaining the pending action and were not union members. ⁷

In the ensuing proceedings, as well as in the instant action, the parties denominated the issues tendered by the complaint in the original action (No. 520151) 'Issue No. 1' and the subsequent claims of discrimination allegedly arising because of the commencement of said action 'Issue No. 2.'

On March 6, 1964, Professor Kagel rendered his opinion and decision as arbitrator which, while referring to Issue No. 1 and Issue No. 2, concluded that 'The undersigned Arbitrator does have jurisdiction to hear and decide Issue No. 1. Andrews, et al shall be given the opportunity to present their case on estoppel and waiver.' ⁸ However the record discloses that the arbitration was in process (see fn. 8, ante), that the artbitrator had merely made a decision on one aspect of the matter, that he had not disclaimed jurisdiction on Issue No. 2, and that in the course of the arbitration proceedings all parties agreed that Professor Kagel had jurisdiction to determine Issue No. 2. ⁹ Nevertheless on or about March 25, 1964, Mr. Crittenden notified the arbitrator by letter that 'any consent for you to act as Arbitrator is terminated, particularly as to issues #2' and that he would apply 'to the necessary Court for the naming of an impartial and neutral arbitrator.'

On March 26, 1964, the plaintiffs in action No. 520151 moved for an order vacating the stay order of March 28, 1963, or in the alternative 'if the Court desires arbitration to continue,' for the naming of 'an impartial and neutral arbitrator.'

On the same day, March 26, 1964, plaintiffs commenced in the court below the instant action (No. 541755) now on appeal, by filing their 'Complaint and Petition for Naming of Impartial and Neutral Arbitrator.' We have noted supra the parties thereto and their relationship to the parties in the 1962 action (see fns. 1 and 3, ante). It is sufficient to say at this point that all plaintiffs and all defendants in the 1964 action were plaintiffs and defendants respectively in the 1962 action. Said complaint and petition, after describing the parties thereto and the collective bargaining agreement involved in substantially the same manner as they had been described in the complaint in the 1962 action, alleges in substance as follows: That there was a dispute between the plaintiffs on the one hand and the defendants on the other 'arising since and arising from certain litigation pending in the above entitled Court, included in the action herewith and others, numbered 520151' (emphasis added); that the matter in dispute was Issue No. 2; ¹⁰ that the matters ordered to be arbitrated by Judge Karesh were those involved in the pending superior court action (No. 520151) and comprised Issue No. 1; that Issue No. 2 was not involved in said action; that Issue No. 1 is 'wholly separated from and not connected with' Issue No. 2; that the arbitrator 'has and does now refuse and neglect to hear the matters on the merits hereof'; and that the conduct of the arbitrator indicated he was not impartial. The complaint prays that the court appoint an impartial and neutral arbitrator 'to arbitrate the said issues #2 involved in this action' (emphasis added); that the court enjoin any future proceedings in arbitration 'involved in this action' by Professor Kagel; ¹¹ and that the court supervise this arbitration of Issue No. 2.

On the filing of the complaint and petition in action No. 541755 plaintiffs obtained the issuance of an order to show cause, returnable in the court below on the same date, at the same time and in the same department of the superior court as designated by them for the hearing of the motion to name an impartial arbitrator, filed the same day in action No. 520151. Unlike the 1962 complaint, the 1964 complaint sought no writ of mandate, declaratory relief, damages or accounting. In essence, it had the same objective--removal of arbitrator--as the motion in the 1962 action had. Identical points and authorities were filed in support of both the complaint and the motion.

In respect to said complaint and petition the so-called Union defendants filed a demurrer asserting (1) that the complaint failed to state a cause of action and (2) that there was another action (i. e., No. 520151) pending. Defendants PMA and Committee filed a 'Response (in Nature of Demurrer) to 'Complaint' and Order to Show Cause' alleging (1) that the use of a complaint and summons was an improper procedure under the provisions of the Code of Civil Procedure dealing with arbitration (§§ 1280-1294.2); (2) that no cause of action was stated since the complaint alleged no written agreement to arbitrate Issue No. 2 as provided by Code of Civil Procedure sections 1281, 1281.2 and 1281.6; (3) that Kagel could not be enjoined since he was not named as a party defendant; and (4) that 'For the foregoing reasons' the complaint should be dismissed.

On April 2, 1964, and more than five days before the date of hearing, W. N. Heastan, one of the plaintiffs, filed in action No. 541755 an affidavit of prejudice under Code of Civil Procedure section 170.6 and a motion based thereon for the disqualification of Judge Karesh in the above entitled matter. On April 8, 1964 both the motion in the 1962 action and the order to show cause in the 1964 action came on for hearing before Judge Karesh in the Law and Motion Department. Judge Karesh, who, as previously noted, had made the order of March 28, 1963 in action No. 520151 staying further proceedings therein pending the submission of the issues to arbitration, characterized action No. 520151 and action No. 541755 as involving 'essentially the same parties, essentially the same case' and 'essentially the same subject matter you are attempting by this complaint, which is a sham pleading.' Relying upon McClenny v. Superior Court (1964) 60 Cal.2d 677, 36 Cal.Rptr. 459, 388 P.2d 691, the court below thereupon struck the affidavit of prejudice on the ground that the proceedings in action No. 541755 were in reality but a continuation of the 1962 action and that the affidavit...