Eagle Maintenance & Supply Co. v. Superior Court In andFor Los Angeles County

• Decision Date: 07 November 1961
• Citation: 16 Cal.Rptr. 745,196 Cal.App.2d 692
• Court: California Court of Appeals Court of Appeals
• Parties: EAGLE MAINTENANCE AND SUPPLY CO., a California Corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Civ. 25867.

Page 745

16 Cal.Rptr. 745

196 Cal.App.2d 692

EAGLE MAINTENANCE AND SUPPLY CO., a California Corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent.

Civ. 25867.

District Court of Appeal, Second District, Division 3, California.

Nov. 7, 1961.

Marvin B. Kapelus, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.

FRAMPTON, Justice pro tem.

Petitioner seeks a writ of prohibition to restrain a judge of the respondent court from proceeding to try a cause of action pending before him in which petitioner herein is the plaintiff.

Although the petition sets forth matters which could be considered as the basis of a claim of actual bias under the provisions of Code of Civil Procedure, section 170 these matters are denied in the return In addition the petition describes the motion and affidavit as having been filed in the trial court pursuant to Code of Civil Procedure, section 170.6 and the return treats it as such. At the time of oral argument in this court, petitioner and respondent agreed that the cause should be heard and determined on the basis that the challenge was peremptory (Code Civ.Proc. § 170.6), rather than for cause (Code Civ.Proc. § 170).

It appears that the action was first set for trial April 14, 1961, in the department to which the judge against whom the peremptory challenge was later filed, was regularly assigned. The cause went to trial as a default on said date and an order for judgment in favor of plaintiff was entered in the minutes. No judgment was thereafter entered.

On May 2, 1961, before the same judge, defendant moved the court under Code of Civil Procedure, section 473, to set aside the order for judgment and default and such motion was granted. The following minute order was made. 'The cause is reset for trial in this Dept at 9:45 AM, June 1, 1961, and notice is waived.' The record further discloses that petitioner's counsel was present when this order was made.

The return to the petition shows that some time prior to June 1, 1961 (exact date not disclosed), pursuant to oral request of counsel the trial date was postponed to September 6, 1961, in the same department of the court. That on or about September 1, 1961, petitioner caused to be served and filed his motion to disqualify and affidavit pursuant to the provisions of Code of Civil Procedure, section 170.6. On September 6, 1961, the motion to disqualify was denied and the judge against whom the motion and affidavit were directed continued the trial to October 4, 1961, and will proceed in the trial at that time unless restrained.

Respondent contends that petitioner had knowledge on May 2, 1961, that the judge who first tried the case would retry it on June 1, 1961, and was therefore required by the terms of the statute to file his motion and affidavit of disqualification no later than five days before June 1, 1961, and that the filing thereof five days before the September 6th setting was too late. Respondent contends further that 'a series of continuances of a trial date does not create a new right to disqualify the trial judge each time the case is continued.' Respondent's position would be sound if the trial of the cause after setting aside the default constituted a continuation of the original proceedings. Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9. However, the ultimate purpose of relief under Code of Civil Procedure, section 473, is to give the moving party a fair trial on the merits. 3 Witkin, California Procedure, § 61, p. 2112. It leaves...