Hospital Council of Northern Cal. v. Superior Court

• Citation: 30 Cal.App.3d 331,106 Cal.Rptr. 247
• Court: California Court of Appeals
• Decision Date: 31 January 1973
• Parties: HOSPITAL COUNCIL OF NORTHERN CALIFORNIA and California Hospital Association, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondents; Sharon J. ENGLISH and Marilyn Kizziah, Real Parties in Interest. Civ. 31747.

Page 247

106 Cal.Rptr. 247

30 Cal.App.3d 331

HOSPITAL COUNCIL OF NORTHERN CALIFORNIA and California Hospital Association, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondents Sharon J. ENGLISH and Marilyn Kizziah, Real Parties in Interest.

Civ. 31747.

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

Jan. 31, 1973.

Hearing Denied March 29, 1973.

Hanson, Bridgett, Marcus & Jenkins, William J. Bush, San Francisco, Musick, Peeler & Garrett, Los Angeles, for petitioners.

Russell Bruno, Oakland, for real parties in interest.

MOLINARI, Presiding Justice.

An alternative writ of prohibition was issued by this court upon a petition seeking to restrain respondent court from taking any further action in connection with the proceedings now pending before the Honorable Robert H. Kroninger and to compel respondent to assign said proceedings and all further matters connected therewith to a different judge. The issue is whether the denial of petitioners' motion to disqualify Judge Kroninger was proper.

On November 2, 1971, Sharon English and Marilyn Kizziah, the real parties in interest, on behalf of themselves and other taxpayers similarly situated, filed a petition for writ of mandate against the County of Alameda and numerous other counties, the assessors of each named county, the State Board of Equalization and certain named individuals as the alleged owners of possessory interests in privately-owned real property located in Alameda County. Said petition sought to compel the named tax assessors to recover all tax revenues not imposed on the alleged possessory interests by reason of the failure to assess such interests. Petitioners were not named as parties in said proceedings.

On December 14, 1971, the presiding judge set the said petition for writ of mandate for trial on March 29, 1972, ¹ in department 1 of respondent court, and on January 28 the action was assigned by an ex parte order to department 20 'for all further proceedings' at the request of the County Counsel of Alameda County appearing on behalf of said county. The judge then sitting in department 20 was Judge Kroninger.

Subsequently, by letter dated January 31, the county counsel wrote to the Honorable Robert L. Bostick, the presiding judge, in pertinent part, as follows: 'This will confirm our conversation of Friday, January 28, 1972 during which you ordered that the above matter be assigned to the Honorable Robert H. Kroninger, Judge, for all future (sic) proceedings including trial. ( ) In accordance with your instructions, we have conveyed your message to Judge Kroninger and have notified the Clerk in Department One so that an appropriate entry may be made in the minutes. ( ) Notice of the order is being given by a copy of this letter to the following counsel: . . .' A copy of said letter was sent to counsel for petitioners who thereafter, on February 14, were granted leave to appear in the proceedings as amicus curiae.

On February 18, the defendants in the mandamus proceedings filed motions for a judgment on the pleadings. These motions came on for hearing on March 1 when they were continued to March 15 with leave to the parties to file briefs prior to March 6. Counsel for petitioners was present at this hearing. At the March 1 hearing the motion of one of the defendants for further answers to interrogatories was granted, and the motion of real parties for the taking of the deposition of one Patricia A. Brauel on March 7 was granted.

The motions for judgment on the pleadings were supported by a memorandum of points and authorities filed by petitioners. When the motions came on for hearing on March 15 counsel for petitioners participated in the argument. The motions were taken under submission, and an order was made that all discovery be completed 10 days before trial. A motion for production of evidence and a motion for answers to interrogatories was ordered continued to March 20 for hearing. On March 16 Judge Kroninger denied the motions for judgment on the pleadings.

On March 20, when the motion for the production of evidence and for answers to interrogatories came on for hearing, arguments were presented and the matter was continued to April 14. ² At this hearing only counsel for real parties and the county counsel were present. Thereafter, on March 29, the court, on its own motion, continued the hearing of the petition for writ of mandate to May 3. ³ Real parties assert that at this time all counsel agreed that a full scale evidentiary hearing would probably be unnecessary because the case would be submitted on an agreed statement of facts and motions by each side for summary judgment.

In the interim, on April 14, the motion of real parties for answers to interrogatories came on for hearing and, pursuant to stipulation, was continued to April 28. At said hearing on April 14 real parties made a motion to have the propriety of the purported class action determined and respective counsel presented arguments. Judge Kroninger determined that a class action was properly before the court. Counsel for petitioners was present at said hearing. Pursuant to stipulation he was permitted to make an oral motion that petitioners be permitted to come into the case as intervenors. The motion was granted.

On May 3, the court made an order continuing the action to May 24 'for submission of agreed statements of fact and motion for summary judgment.' At that time counsel for real parties made a progress report regarding the agreed statement of facts. Counsel for petitioners was present at this hearing. ⁴

The minutes of the court on May 24 indicate that both the trial and real parties' motion for interrogatories came on for hearing on that day and that pursuant to the stipulation of respective counsel, including counsel for petitioners, 'all pending matters' were continued to June 7.

On June 5, petitioners indicated that they had reconsidered and would refuse to continue with any effort to file an agreed statement of facts. A petition in intervention was filed on June 7 and, concurrently therewith, petitioners filed a motion to disqualify Judge Kroninger pursuant to Code of Civil Procedure section 170.6. ⁵ The disqualification motion came on for hearing before Judge Bostick on June 22 and was denied on the same day. Judge Bostick then ordered to the action transferred to Judge Kroninger for further proceedings.

Petitioners allege that the denial of the motion pursuant to section 170.6 was 'unreasonable, arbitrary and erroneous' in that the statute gives a party or his attorney an absolute right to disqualify a judge if the motion to disqualify is timely made prior to any hearing on a contested issue of fact relating to the merits and is based on a proper declaration. Petitioners assert further that they did not become parties to the proceeding until they filed their petition in intervention on June 7 and that, therefore, they were entitled to make a motion to disqualify when they became parties and were not bound by any of the proceedings which took place prior to their becoming parties thereto.

Initially, we observe that an intervenor becomes an actual party to the suit by virtue of the order authorizing him to intervene. (§ 387; Drinkhouse v. Van Ness, 202 Cal. 359, 371, 260 P. 869; Ah Goon v. Superior Court, 61 Cal. 555, 556; Rodehaver v. Mankel, 16 Cal.App.2d 597, 601, 61 P.2d 61; Corridan v. Rose, 137 Cal.App.2d 524, 528, 290 P.2d 939; but see Miller v. Richards, 83 Cal. 563, 564, 23 P. 936.) As noted in Corridan, the order granting leave to intervene determines implicitly that the intervenor has an interest in the matter in litigation. (137 Cal.App.2d at p. 528, 290 P.2d 939.) Accordingly, the court's jurisdiction attaches at the time the order is made (Ah Goon v. Superior Court, supra), and the intervenor is bound by the record of the action at that time. (McNeil v. Morgan, 157 Cal. 373, 377, 108 P. 69; Allen v. California Water & Tel. Co., 31 Cal.2d 104, 109, 187 P.2d 393.) In view of these principles petitioners became parties to the instant proceeding on April 14.

As a general rule an intervenor takes a suit as he finds it (Mathews v. Savings Union B. & T. Co., 43 Cal.App. 45, 51, 184 P. 418; McNeil v. Morgan, supra, 157 Cal. 373, 377, 108 P. 69), and he cannot avail himself of irregularities the original parties have expressly or impliedly waived. (Maguire v. Cunningham, 64 Cal.App. 536, 541, 222 P. 838.) This rule has for its basis the concept that intervention must not retard the principal suit, nor delay the trial of the action, nor change the position of the parties. (Hibernia, etc., Society v. Churchill, 128 Cal. 633, 636, 61 P. 278; Mathews v. Savings Union B. & T. Co., supra.) ⁶ Our immediate inquiry, therefore, is whether petitioners upon becoming parties to the instant proceeding were prevented from disqualifying Judge Kroninger under section 107.6.

Section 170.6, subdivision (2), in pertinent part, provides that 'Where the judge . . . assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion (to disqualify the judge) shall be made at least five days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. . . . 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 . . ..'

We proceed, first, to decide whether petitioners' motion was made before the determination of any contested fact issues relating to the merits. The real parties contend that when Judge Kroninger reviewed defendants' motions for...