Jacobs v. Superior Court In and For Los Angeles County
| Decision Date | 08 December 1959 |
| Citation | 1 Cal.Rptr. 9,53 Cal.2d 187,347 P.2d 9 |
| Court | California Supreme Court |
| Parties | , 347 P.2d 9 Betty Lou JACOBS et al., Petitioners, v. SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, et al., Respondents; Victor Bernard Jacobs, Real Party in Interest. L. A. 25595. |
Pacht, Ross, Warne & Bernhard, Isaac Pacht, Leo Altshuler and Harvey M. Grossman, Los Angeles, for petitioners.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, and Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondents.
Gilbert, Thompson & Kelly, W. I. Gilbert, Jr., and Jean Wunderlich, Los Angeles, for real party in interest.
Betty and Gerald Jacobs, minors, and their maternal grandparents, Joe and Anna Wolf, seek a writ of prohibition to restrain Honorable Orlando H. Rhodes, Judge of the Superior Court of Los Angeles County, from trying any issue of law or fact presented in proceedings involving the custody and guardianship of the minors. They also seek a writ of mandamus to compel a transfer of the proceedings to another judge. The application is based upon the refusal of Judge Rhodes to grant a motion for his disqualification.
Betty and Gerald are the children of the real party in interest, Victor Jacobs, and his first wife, who died in 1947. Several months after the death of their mother, the children went to live with their maternal grandparents. Betty is now 17 years of age, and Gerald is approaching 15.
On January 20, 1956, the father petitioned for a writ of habeas corpus by which he sought custody of both children. The grandparents filed a return to the writ and a petition to be appointed guardians of the children. The proceedings were consolidated for trial and were heard by Judge Rhodes. On May 7, 1956, pursuant to stipulation, Judge Rhodes made an order under which the children were permitted to remain with the grandparents.
The father renewed his petition for habeas corpus on January 31, 1958, and the grandparents renewed their petition for guardianship. On November 25, 1958, after trial, Judge Rhodes rendered judgment in the habeas corpus proceeding awarding the father sole custody of Gerald but permitting him to allow Gerald to reside with his maternal uncle, Frank Wolf. The judgment awarded the father and grandparents joint custody of Betty and provided that at any time after April 1, 1959, the court might, upon application of the father, award him sole custody of Betty. Pursuant to stipulation, the father was ordered to make monthly payments to the grandparents for Betty's support and similar payments to the uncle while Gerald was in his custody. Judgment was also rendered denying the petition of the grandparents to be appointed guardians of the minors. On May 29, 1959, Judge Rhodes, pursuant to an ex parte application, awarded the father sole custody of Betty, directed the grandparents to deliver the children into the father's custody on June 19, and further directed that if the children refused to accompany the father to his residence the sheriff should take them into custody. A motion to vacate the order of May 29 was made by the grandparents on June 16 and denied by Judge Rhodes.
On June 17, 1959, the grandparents filed a motion to modify the custody provisions of the judgment of November 25, 1958, on the ground that there had been a change of circumstances. On June 22 they filed a 'Supplemental Petition for Appointment of Guardians,' and the next day they filed a motion under section 170.6 of the Code of Civil Procedure to disqualify Judge Rhodes from hearing their request for modification of the custody order and their petition for guardianship. * Judge Rhodes denied the motion and set the matters for hearing before himself.
Section 170.6 of the Code Civil Procedure provides that no judge shall try any action or special proceeding when it is established by an affidavit that he is prejudiced against a party or attorney so that the party or attorney cannot, or believes he cannot, have a fair and impartial trial before such judge. Facts showing prejudice need not be alleged or proved, and, where a timely motion to disqualify is made, supported by an affidavit alleging prejudice, the case or matter, without any further act or proof, must be assigned to another judge for trial or hearing. It is provided that in no event shall a judge entertain a motion under this section if it is made after swearing in the first witness or the giving of any evidence or after the trial of...
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...part and a continuation of the original eminent domain proceedings, within the meaning of the rule laid down in Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, so as to preclude a disqualification under section 170.6. The essence of the rule stated in Jacobs is that in a......
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...allow them to disqualify him ... in the hope of securing a different ruling from another judge ...." (Jacobs v. Superior Court [1959] 53 Cal.2d 187, 191, 1 Cal.Rptr. 9, 347 P.2d 9; see also People v. Richard, supra, 85 Cal.App.3d at p. 299, 149 Cal.Rptr. 344.) Foreclosing disqualification m......
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...in the first witness or giving any evidence or after trial of the cause has otherwise been commenced (Jacobs v. Superior Court, 53 Cal.2d 187, 190-191, 1 Cal.Rptr. 9, 347 P.2d 9). The rationale for this rule is found in Jacobs, supra, at page 191, 1 Cal.Rptr. 9, 347 P.2d "If a disqualificat......
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Table of cases
...§9:150 Jackson, People v. (1954) 124 Cal. App. 2d 787, 269 P.2d 17, §7:120 - Hu - B-29 Table of Cases Jacobs v. Superior Court (1959) 53 Cal. 2d 187, 1 Cal. Rptr. 9, §19:90 Jacobs, People v. (2000) 78 Cal. App. 4th 1444, 93 Cal. Rptr. 2d 783, §9:10 Jacobs, People v. (1987) 195 Cal. App. 3d ......