Elliott v. Superior Court In and For Solano County

• Citation: 5 Cal.Rptr. 116,180 Cal.App.2d 894
• Court: California Court of Appeals Court of Appeals
• Decision Date: 16 May 1960
• Parties: W. A. ELLIOTT and I. L. Elliott, his wife; Madeline 'O'Larte; Rita Stoermer; Lester Callaghan; Theresa Callaghan; Janet Callaghan and William S. Callaghan, Jr.; Samuel A. Hanson and Vesta C. Hanson, his wife; Mabel George; Mary Mathilda Lawrence; Marie Hanson; Nancy Rampone Sarmento; Erminia Rose, formerly Erminia Rampone; Mary W. Robbins and D. L. Robbins, her husband; Wilma C. Barr and G. H. Barr, her husband; Josephine O. Cordell and L. A. Cordell, her husband; John Aye, individually and as a resident, citizen and taxpayer of the City of Rio Vista, and the State of California, and the United States of America, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF SOLANO; the Honorable Raymond J. Sherwin, Judge thereof, Respondents. Civ. 9940.

Page 116

5 Cal.Rptr. 116

180 Cal.App.2d 894

W. A. ELLIOTT and I. L. Elliott, his wife; Madeline 'O'Larte; Rita Stoermer; Lester Callaghan; Theresa Callaghan; Janet Callaghan and William S. Callaghan, Jr.; Samuel A. Hanson and Vesta C. Hanson, his wife; Mabel George; Mary Mathilda Lawrence; Marie Hanson; Nancy Rampone Sarmento; Erminia Rose, formerly Erminia Rampone; Mary W. Robbins and D. L. Robbins, her husband; Wilma C. Barr and G. H. Barr, her husband; Josephine O. Cordell and L. A. Cordell, her husband; John Aye, individually and as a resident, citizen and taxpayer of the City of Rio Vista, and the State of California, and the United States of America, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF SOLANO; the Honorable Raymond J. Sherwin, Judge thereof, Respondents.

Civ. 9940.

District Court of Appeal, Third District, California.

May 16, 1960.

Rehearing Denied June 10, 1960.

Hearing Denied July 12, 1960.

Hildebrand, Bills & McLeod, Oakland, for petitioners.

McCutchen, Black, Harnagel & Shea, Los Angeles, Ray Vandervoort, San Francisco, Pillsbury, Madison & Sutro, San Francisco, Richard H. Peterson, Frederick W. Mielke, Jr., John A. Sproul & Roger J. Nichols, San Francisco, O'Hara, Randall & Castagnetto, Vallejo, Martin N. Erck and John F. Runner, Los Angeles, Angell, Adams, Gochnauer & Elder, San Francisco, Julian O. von Kalinowski, of Gibson, Dunn & Crutcher, Los Angeles, Hanna & Morten, Los Angeles, for real parties in interest.

SCHOTTKY, Justice.

Petitioners seek a writ of prohibition to restrain The Honorable Raymond J. Sherwin as judge of the superior court of Solano County from proceeding further in the case entitled W. A. Elliott, et al. v. Amerada Petroleum Corporation, et al., now pending before the court.

In September, 1956, petitioners filed an action in the Superior Court of Solano County to recover damages from the defendants in the action for alleged wrongs resulting from the operation of the Rio Vista Gas Field in Solano County. Demurrers to the original complaint and to two amended complaints were sustained with leave to amend. A fourth amended complaint was then filed in which John Aye, individually and as a citizen and a taxpayer, brought an action on behalf of the Sacramento and San Joaquin Drainage District and on behalf of the State Lands Commission, a public agency of the state of California, both of which own property in the gas field.

Thereafter, on October 16, 1959, the petitioners herein filed a statement in which they sought to disqualify The Honorable Raymond J. Sherwin from proceeding in the matter. The affidavit in support of the statement stated that Judge Sherwin was disqualified to act in the proceedings because of section 170, subdivision 6, of the Code of Civil Procedure. It was contended that the judge was disqualified because the action involved a claim on behalf of the Sacramento and San Joaquin Drainage District and the State Lands Commission. After this document was filed the defendants in the action made a motion to strike the statement of objection and the affidavit in support of it. The matter was heard by Judge Sherwin, and after argument he made an order granting the motion to strike. This petition was then presented to this court and an alternative writ of prohibition was issued.

Prohibition is the proper remedy to test whether or not a judge is disqualified to act where the facts are not in conflict. An order striking a petition for disqualification from the files is not an appealable order and the remedy by appeal is inadequate. Keating v. Superior Court, 45 Cal.2d 440, 289 P.2d 209. The defendants in the action have filed a demurrer to the petition so the major question before this court is whether or not the trial court erred in striking the statement of disqualification from the files of the court.

Section 170, subdivision 6, of the Code of Civil Procedure provides in part: 'In an action or proceeding brought in any court by or against * * * any * * * drainage district, or any public agency, * * *, affecting or relating to any real property, * * *, a judge of the superior court of the county, * * *, in which such real property, * * * is situated shall be disqualified to sit or act, and such action shall be heard and tried by some other judge * * *.'

If the statement of disqualification is legally insufficient the judge may ignore it or strike it from the files. Keating v. Superior Court, supra. The question presented here is whether or not under the facts presented John Aye could sue on behalf of the drainage district and...