Donovan v. Superior Court of State, In and For Los Angeles County

• Decision Date: 21 November 1952
• Citation: 250 P.2d 246,39 Cal.2d 848
• Parties: . L. A. 21859. Supreme Court of California, in Bank
• Court: California Supreme Court

Page 246

250 P.2d 246

39 Cal.2d 848

DONOVAN et al. v. SUPERIOR COURT OF STATE, IN AND FOR LOS ANGELES COUNTY et al.

L. A. 21859.

Supreme Court of California, in Bank.

Nov. 21, 1952.

John F. Donovan, in pro. per., and Aileen M. MacLymont, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondents.

SPENCE, Justice.

Petitioners, John F. Donovan and Jeanette G. Donovan, seek the annulment of a judgment of contempt in which they were fined respectively $2,000 and $4,500. They contend that the trial court was without jurisdiction to render the judgment, and that the fines imposed are excessive and constitute 'unusual punishment' in violation of the Eighth Amendment to the Federal Constitution and article I, section 6 of the California Constitution. We have concluded that these contentions cannot be sustained and that the judgment must be affirmed.

It was not until August 29, 1952, being long after the commencement of this proceeding, that petitioner John F. Donovan was adjudged to be an incompetent and John F. Cownie was appointed guardian of his person and estate. Upon the filing of a certified copy of the letters of guardianship, an appropriate order of substitution was made by this Court and a joint brief has been filed herein by counsel representing both petitioner Jeanette G. Donovan and petitioner John F. Donovan, appearing by his said guardian.

The contempt proceedings arose out of alleged violations of a permanent injunction issued upon a judgment entered on November 26, 1945. This judgment was affirmed in Donovan v. City of Santa Monica, 88 Cal.App.2d 386, 199 P.2d 51, and is now a final judgment determinative of the rights of the parties. The injunction restrained petitioners from using, occupying or maintaining the real property at 136 Georgina Avenue, Santa Monica, California, for any purpose other than a single-family dwelling. It also required the removal of several apartments and the reconversion of the main building into a single-family residence.

Petitioners contend that the issues involved in the action culminating in the November 26, 1945, judgment were res judicata because they had been settled by a stipulation entered into during a certain criminal trial in the Police Court of Santa Monica in April, 1940. This contention does not appear to be tenable, but the merits of the claim need not be discussed as the plea of res judicata does not present for review a question of jurisdiction under sections 1068 and 1074 of the Code of Civil Procedure. Baird v. Superior Court, 204 Cal. 408, 412, 268 P. 640; Lincoln v. Superior Court, 22 Cal.2d 304, 308, 139 P.2d 13. Furthermore, petitioners cannot make this contention for the first time in their petition in this proceeding. Where there is an opportunity to do so in the trial court, the former judgment must be pleaded in order that it may constitute a bar. Strong v. Owens, 91 Cal.App.2d 336, 339, 205 P.2d 48; Steward v. Paige, 90 Cal.App.2d 820, 825, 203 P.2d 858.

It is next contended that the trial court had no jurisdiction over petitioners in the contempt proceedings because a copy of the 'Affidavit of Leslie S. Storrs for Order to Show Cause In Re Contempt of Jeanette G. Donovan and John F. Donovan,' as amended in court on July 17, 1950, was not served upon either of them. The trial judge permitted an amendment whereby a reference in the affidavit to 'Exhibit A,' a copy of Ordinance No. 148 of the City of Santa Monica, was stricken. The amendment was made following petitioners' objections that the affidavit as served upon them did not have 'Exhibit A' attached.

Petitioners cannot now question the trial court's jurisdiction over their persons inasmuch as both made general appearances, submitting to that jurisdiction, by filing answering affidavits containing various contentions in addition to the objections to service, and by moving to disqualify the trial judge. See Judson v. Superior Court, 21 Cal.2d 11, 13, 129 P.2d 361. Section 170 of the Code of Civil Procedure limits the right to present disqualification matters to 'any party to such action or proceeding who has appeared therein'. (Emphasis added.)

The trial court had jurisdiction to permit the amendment, and it properly did so. The affidavit pleaded the ordinance elsewhere by referring to its title, number and date of enactment, Code Civ.Proc. § 459, and, in any event, the reference to the exhibit was unnecessary. The amendment pertained to an immaterial matter which did not affect the basis for the proceeding, and it was not necessary to serve the amended affidavit on petitioners. See Drotleff v. Renshaw, 34 Cal.2d 176, 182, 208 P.2d 969.

Petitioners further contend that the Honorable Alfred L. Bartlett, who was the trial judge assigned to hear the contempt proceeding, was without jurisdiction to proceed with said hearing because an affidavit for disqualification of the Honorable Orlando H. Rhodes, another judge of the same court, had been filed and had not been disposed of in the manner prescribed by section 170 of the Code of Civil Procedure. This contention appears to be based on a misconception of the proceedings had in the trial court, which misconception is probably due to petitioners' numerous changes of counsel in these proceedings.

Said section 170 provides in part that '* * * the question of the judge's disqualification shall be heard and determined by some other judge agreed upon by the parties * * *.' The record before us reveals that when the contempt proceeding came on for hearing before Judge Rhodes on June 16, 1950, a motion was made 'to remove cause for disqualification.' Judge Rhodes then granted the motion of petitioner John F. Donovan for a continuance to July 17, 1950. On June 30, 1950, petitioner John F. Donovan filed three motions entitled as follows: (1) 'Notice of Motion for disqualification of the Honorable Orlando Rhodes'; (2) 'Notice of Motion to remove cause for disqualification of the Honorable Orlando H. Rhodes'; and (3) 'Notice of motion to transfer the contempt proceeding from Santa Monica Superior Court, Department A to Los Angeles Superior Court, Department 1.' All there motions were noticed for July 7, 1950, but only the second notice of motion made reference to the particular department of the superior court in which the motion would be made, stating 'and said motion will be made before the Honorable Clarence Kincaid, Department 1, Hall of Records, Los Angeles, California.'

The record further discloses the following minute order made on July 7, 1950, in Department 1, with Judge Kincaid presiding: 'Plaintiffs' motion to transfer this case from the Santa Monica Branch of the Superior court to Los Angeles Superior Court, plaintiffs' motion for disqualification of Honorable Orlando H. Rhodes, and plaintiffs' motion to remove cause for disqualification of Honorable Orlando H. Rhodes come on for hearing; Jeanette G. Donovan and John F. Donovan appearing in propria persona, and Royal Sorensen, City Attorney of the City of Santa Monica, by J. Leroy Irwin, Deputy, appearing as counsel for defendants. Motions (3) are denied. Notice waived.' Thereafter, notice of the last mentioned order was served by mail on petitioners on July 11, 1950, and the contempt proceeding was heard by Judge Bartlett on July 17, 1950. New counsel, other than petitioners' present counsel, represented petitioners at said hearing and Mr. Sorensen, the City Attorney, rather than his deputy, represented the City of Santa Monica. Apparently neither counsel nor the trial judge knew of the order made by Judge Kincaid in the disqualification proceeding. However, petitioner John Donovan's challenge to the jurisdiction of Judge Bartlett to proceed with the contempt hearing was overruled upon the ground that the matter of the disqualification of Judge Rhodes was 'moot' as Judge Bartlett, rather than Judge Rhodes, had been assigned to hear that proceeding, and that no question was raised concerning the qualification of Judge Bartlett.

Petitioners' claim that Judge Bartlett was without jurisdiction to proceed with the contempt hearing cannot be sustained. First, petitioners cannot now successfully contend that Judge Kincaid was not 'some other judge agreed upon by the parties' to hear the proceeding relating to the disqualification of Judge Rhodes when they voluntarily chose to proceed with their motion for disqualification before Judge Kincaid, and the other parties made no objection. Second, even if it be assumed that no disposition had been made of the proceedings relating to the disqualification of Judge Rhodes, it does not appear that there was a lack of jurisdiction on the part of Judge Bartlett to proceed. The record does not disclose that there was any irregularity in the assignment of Judge Bartlett to hear the contempt proceeding. In fact, an affidavit of Judge Bartlett shows that he was duly assigned by Judge Kincaid, the Presiding Judge, to sit in the Santa Monica departments of said court from July 17 to September 1, 1950.

Subdivision 5 of section 170 of the Code of Civil Procedure contains the following proviso: '* * * provided, however, that when there are two or more judges of the same court, one of whom is disqualified, the action or proceeding may be transferred to a judge who is not disqualified.' This proviso was no doubt intended to provide a simple and expeditious method for the disposition by admittdly qualified judges of cases in which claims of disqualification might be made in courts having two or more judges. We are of the opinion that this proviso should be construed to permit the transfer of a cause to a qualified judge of the same court in any case in which a claim of disqualification may be made against one of the other judges, and that its operation should not be confined to cases where actual disqualification has been either admitted or determined after a hearing....