Brown v. Swickard

• Decision Date: 17 January 1985
• Citation: 163 Cal.App.3d 820,209 Cal.Rptr. 844
• Court: California Court of Appeals Court of Appeals
• Parties: Stuart BROWN, et al., Plaintiffs and Appellants, v. Jack SWICKARD, individually and doing business as Five Dot Land & Cattle Co., Tim Swickard and Todd Swickard, individually and doing business as Mapes Ranch, Inc., and Mapes Ranch, Inc., a California corporation, Defendants and Respondents. Civ. 22846.

Page 844

209 Cal.Rptr. 844

163 Cal.App.3d 820

Stuart BROWN, et al., Plaintiffs and Appellants, v. Jack SWICKARD, individually and doing business as Five Dot Land & Cattle Co., Tim Swickard and Todd Swickard, individually and doing business as Mapes Ranch, Inc., and Mapes Ranch, Inc., a California corporation, Defendants and Respondents.

Civ. 22846.

Court of Appeal, Third District, California.

Jan. 17, 1985.

Certified for Partial Publication ^*

Rehearing Denied Feb. 13, 1985.

Hearing Denied March 14, 1985. ^**

Stockton & Schrimp and Roger Schrimp, Modesto, for plaintiffs and appellants.

Bradbury & Kellison, Thornton & Franklin and Jack Thornton, Susanville, for defendant and respondent Jack Swickard individually and doing business as Five Dot Land & Cattle Co.

Price, Burness, Price, Davis & Brown and Phillip Price, Chico, for defendants and respondents Tim Swickard, Todd Swickard and Mapes Ranch, Inc.

SPARKS, Associate Justice.

In 1982 the California Legislature amended the statute governing peremptory challenges of judges by adding a special procedure for one judge courts. Beginning on January 1, 1983, that statute requires that a peremptory motion to disqualify the judge of a one judge court "shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion." (Code Civ.Proc., § 170.6, subd. (2).) ¹ The issue in this case is whether the amended statute applies to the disqualification motion of a party who appeared in the action before the amendment's effective date but made the motion after that date. We hold that it does not. In the course of that holding we also explain the operation of this statute in change of venue cases.

Plaintiffs Stuart Brown, Warren Wolfsen and James Diener appeal from two adverse summary judgments, which together resulted in the dismissal of their action as to all defendants. The action arose out of a grazing agreement and the subsequent injury to plaintiffs' cattle. Plaintiffs advance several contentions on appeal, including the argument that because they timely moved under section 170.6 to disqualify the trial judge from hearing the first motion for summary judgment, the judge's rulings on both summary judgment motions are void. We agree with this contention and shall reverse.

PROCEDURAL HISTORY ^**

DISCUSSION

I **

II

Plaintiffs argue that their peremptory challenge to the trial judge, made under section 170.6 and filed five days before the hearing on the first motion for summary judgment, was timely and consequently deprived the challenged judge of jurisdiction to rule on the motions. They assert that all of the judge's subsequent rulings and judgments were therefore void. Plaintiffs further contend that the 1982 amendment to section 170.6, subdivision (2) ⁷ has no application to this case because it did not become effective until January 1, 1983, almost a year after the action had been transferred from Merced County to Lassen County and more than one year after plaintiffs first appeared in the action. Defendants counter that the new 30 days limitation period should begin to run as of the effective date of the amendment, here January 1, 1983, and that a peremptory challenge in an existing case venued in a one judge court was therefore required to be made on or before January 30, 1983.

Procedural, and not substantive, facts are important for this issue. Plaintiffs filed their complaint in the Superior Court of the County of Merced on September 11, 1981. On December 31, 1981, defendants' motion for change of venue, requesting that the action be transferred to the County of Lassen, was granted. ⁸ Receipt for the transfer of the file from Merced County to Lassen County was filed in Lassen County on January 25, 1982.

On March 23, 1983, more than a year later, and after defendants Jack Swickard and Five Dot Land & Cattle Co. had filed their motion for summary judgment, plaintiffs filed a peremptory challenge to disqualify Judge Joseph D. Harvey of the Superior Court of Lassen County from hearing the motion. On March 28, the day of the hearing, Judge Harvey denied the motion as untimely. Judge Harvey then granted the motion for summary judgment. Judgment of dismissal as to those moving defendants was filed on March 29, 1983.

Previously, on March 2, 1983, defendants Tim and Todd Swickard and Mapes Ranch Inc. had filed their motion for summary judgment. The hearing on that motion was held on April 4, 1983, and the motion was also granted by Judge Harvey as to those defendants. The formal order dismissing the action as to them was filed on April 12, 1983. This appeal followed.

The question on appeal is whether the peremptory challenge was timely filed. As we observed in In re Abdul Y. (1982) 130 Cal.App.3d 847, 182 Cal.Rptr. 146, "Code of Civil Procedure section 170.6 provides in substance that any party to an action may make a motion, supported by an affidavit of prejudice, to disqualify the trial judge, commissioner, or referee. If the motion is timely and properly filed, the judge must recuse himself without further proof and the cause must be reassigned to another judge. When an affidavit of prejudice has been timely filed, the judge's disqualification is automatic and mandatory. Once properly and timely challenged, the judge loses jurisdiction to proceed and all his subsequent orders and judgments are void." (Id., 130 Cal.App.3d, at pp. 854-855, fn. and citations omitted, 182 Cal.Rptr. 146.)

In order to be effective the statute requires that the peremptory challenge must be timely and in all events made before the hearing has commenced. "The general rule established by section 170.6," the Court of Appeal noted in Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 412, 138 Cal.Rptr. 43, "is that disqualification is permitted at any time prior to commencement of the trial or hearing. Two exceptions are provided--the 10-day-5-day provision and the master calendar provision." ⁹ Later another timetable was added to the triumvirate of the general rule and these two exceptions. "The fourth leg of the statutory timetable derives from the 1965 amendment to Code of Civil Procedure section 170.6 which added: 'The fact that a judge ... has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided.' " (In re Jose S. (1978) 78 Cal.App.3d 619, 626, 144 Cal.Rptr. 309; emphasis in original.) As the statute had been construed prior to the 1965 amendment, a challenge was not timely if it was made after the challenged judge had heard and ruled upon any contested issues of law or fact. (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 200, 41 Cal.Rptr. 721.) The 1965 amendment made it clear, however, that an otherwise timely motion to disqualify the trial judge could also be properly made after any hearing or proceeding held prior to trial so long as the determination of a contested fact issue did not relate to the merits. (Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430, 48 Cal.Rptr. 832.) Thus the 1965 "addition preserves the right of a party to disqualify a judge under Code of Civil Procedure section 170.6 notwithstanding the fact the judge had heard and determined an earlier demurrer or motion, or other matter not involving 'contested fact issues' relating 'to the merits' without challenge in the same cause." (In re Jose S., supra, 78 Cal.App.3d at p. 626, 144 Cal.Rptr. 309.) If, on the other hand, the judge has presided at a prior, pretrial hearing involving a contested issue of fact relating to the merits, a subsequent peremptory challenge is untimely and ineffective as a matter of law. (In re Abdul Y., supra, 130 Cal.App.3d at p. 861, 182 Cal.Rptr. 146; People v. Richard (1978) 85 Cal.App.3d 292, 299, 149 Cal.Rptr. 344.)

The 1982 amendment to subdivision (2) of section 170.6 added a fifth leg to the statutory timetable. This amendment introduced a new deadline for disqualifying trial judges in courts with only one judge. The amendment reads: "If the court in which the action is pending is authorized to have no more than one judge and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion." (Stats.1982, ch. 1644, § 2, pp. 6682-6683.) As the Supreme Court had noted five years earlier in Solberg v. Superior Court (1977) 19 Cal.3d 182, 195, 137 Cal.Rptr. 460, 561 P.2d 1148, "[i]n a single-judge court a litigant who files a motion to disqualify [under section 170.6] automatically obtains a significant delay while an outside judge is brought into the case." The 1982 amendment was sponsored by the California Judges Association because of its view that peremptory challenge motions were often used to delay matters and to gain a tactical advantage over opponents. That abuse, in the opinion of the Association, caused particular hardship in the small or rural courts. (See Assem. Office of Research, 3d Reading analysis of Assem. Bill # 2593 (1981-1982 Reg.Sess.).)

The facts of this case bring the issue now before us into focus. Plaintiffs' lawsuit was filed in September 1981 and then was transferred to the Superior Court of the County of Lassen, a county with only one superior court judicial seat, in January of 1982, both events occurring before the effective date of amended section 170.6. Plaintiffs moved to disqualify the trial judge on March 23, 1983, after the January 1, 1983, effective date, and only five days before the hearing on defendants' ...