Keating v. Superior Court of the City and County of SanFrancisco

• Decision Date: 01 November 1955
• Citation: 289 P.2d 209,45 Cal.2d 440
• Court: California Supreme Court
• Parties: A. G. KEATING, Petitioner, v. The SUPERIOR COURT of The CITY AND COUNTY OF SAN FRANCISCO, and Honorable Samuel F. Finley, as Judge Thereof, Respondents. Harry E. Foster, Real Party in Interest. S. F. 19259.

Page 209

289 P.2d 209

45 Cal.2d 440

A. G. KEATING, Petitioner, v. The SUPERIOR COURT of The CITY AND COUNTY OF SAN FRANCISCO, and Honorable Samuel F. Finley, as Judge Thereof, Respondents Harry E. Foster, Real Party in Interest.

S. F. 19259.

Supreme Court of California, In Bank.

Nov. 1, 1955.

Dan L. Garrett, Jr., San Francisco, for petitioner.

Morris Lowenthal, Juliet Lowenthal and Karl D. Lyon, San Francisco, for respondents and real party in interest.

GIBSON, Chief Justice.

Petitioner is the defendant in an action brought to recover damages for fraudulent conversion of the assets of a business. Foster v. Keating, 120 Cal.App.2d 435, 261 P.2d 529. The case was tried without a jury, and after the conclusion of testimony the trial judge, Honorable Samuel F. Finley, said with reference to defendant's testimony, 'I know some of those statements he made were untrue and palpably false; and I think a situation of this kind to a certain extent is a situation that the grand jury ought to investigate * * * because people shouldn't be permitted to take the stand and give testimony that is false.' He then orally announced that judgment would be given against defendant in the sum of $35,000.

The plaintiff in the action applied to the court to increase the award of damages, and at the hearing defendant sought to reopen the case for the purpose of introducing certain books of account. The judge stated that it was unnecessary to go into the books since they would not show anything to alter his conclusion. He added, 'Of course I make the further observation that the figures in the books were placed there either by the hand of or under the direction of Mr. Keating, and I have no confidence at all in Mr. Keating's integrity and veracity, and I wouldn't have any confidence in the figures * * * in those books.' The award was then increased to $50,000 but was later set at $40,940. Findings and judgment were thereafter filed.

On appeal by defendant from the adverse judgment, it was held that the issue of liability was correctly determined but that the action must be remanded for retrial of the issue of damages. Foster v. Keating, 120 Cal.App.2d 435, 451-455, 261 P.2d 529.

Some months later plaintiff filed notice that he would make a motion in the department where Judge Finley was presiding to set the action for further proceedings. Defendant filed a petition and affidavit for change of judge on the ground that the judge's statements showed him to be disqualified by reason of bias and prejudice against defendant. No answering affidavit was filed by the judge, but after argument he reaffirmed his opinion that defendant had not told the truth wat the trial, although he denied any disqualification and said that he did not feel he had 'any prejudice, any more than any judge would have against someone who doesn't tell the truth.' He struck the petition from the record, asserting that it was not timely and that the evidence was not sufficient to support a charge of disqualification.

Petitioner then brought this proceeding in prohibition to restrain Judge Finley from hearing the retrial of the issue of damages, claiming that a fair and impartial trial could not be had before him.

Prohibition is a proper remedy to test whether a judge is disqualified where, as here, the facts are without substantial conflict. Briggs v. Superior Court, 215 Cal. 336, 341, 10 P.2d 1003; Miller & Lux, Inc., v. Superior Court, 19 Cal.App.2d 628, 66 P.2d 689; Chastain v. Superior Court, 14 Cal.App.2d 97, 104, 57 P.2d 982; see Kreling v. Superior Court, 25 Cal.2d 305, 153 P.2d 734. The order striking the petition for a change of judge is not immediately reviewable by appeal, and an appeal from a subsequent judgment is not an adequate remedy. See Briggs v. Superior Court, supra, 215 Cal. at page 341, 10 P.2d 1003; 1 Witkin, California Procedure (1954), p. 177.

Section 170 of the Code of Civil Procedure provides in part that 'No justice or judge shall sit or act as such in any action or proceeding: * * * 5. When it is made to appear probable that, by reason of bias or prejudice of such justice or judge a fair and impartial trial cannot be had before him', that any party may file 'a written statement * * * setting forth the fact or facts constituting the ground of the disqualification of such judge', that within five days thereafter the judge may file an answer admitting or denying the allegations of the statement, and that 'No judge of a court of record, who shall deny his disqualification, shall hear or pass upon the question of his own qualification * * *'. Under this section, if the written statement is timely and states sufficient facts, it is the duty of the judge to file an answer within five days or be disqualified from sitting until the matter of his bias is passed upon by another judge. In re Harrington, 87 Cal.App.2d 831, 834-835, 197 P.2d 783; Rosenfield v. Vosper, 70 Cal.App.2d 217, 221-223, 160 P.2d 842; 1 Witkin, California Procedure (1954), pp. 173-176. Where, however, the statement is legally insufficient, the judge may ignore it or strike it from the files. Neblett v. Pacific Mut. Life Ins. Co., 22 Cal.2d 393, 401, 139 P.2d 934; Fishbaugh v. Fishbaugh, 15 Cal.2d 445, 457, 101 P.2d 1084; People ex rel. Department of Public Works v. McCullough, 100 Cal.App.2d 101, 108 et seq., 223 P.2d 37.

In deciding questions of fact a judge may often reject the testimony of a party, but this does not necessarily indicate that he believes that the party was guilty of deliberate falsification. The rejection of the testimony may have been the result of a consideration of the ability of the party to observe or rember, and in such a situation failure to accept a party's version of the facts does not show that the judge is biased or prejudiced against him. Nor is a judge disqualified from proceeding to try and decide a case or pass on a motion for new trial because he states during the course of the trial that in his opinion a party has deliberately given false testimony, provided the opinion of the judge is based upon a consideration of the evidence produced. Cf. Fishbaugh v. Fishbaugh, 15 Cal.2d 445, 456-457, 101 P.2d 1084; Chastain v. Superior Court, 14 Cal.App.2d 97, 101 et seq., 57 P.2d 982. It is the duty of a judge when acting as the trier of the facts to pass upon the credibility of witnesses, and if he believes that a party has testified falsely, and chooses to say so rather than remain silent, he is not disqualified from proceeding to render judgment.

The rule is different, however, where a judge is about to retry a case after having stated during the course of the prior trial that he believes a party has wilfully sworn falsely. Such is the situation sere, as there must be a complete new trial on the issue of damages. Foster v. Keating, 120 Cal.App.2d 435, 451-455, 261 P.2d 529. When a judge has stated that a party has given false testimony, even though his belief is founded on the evidence before him, he is disqualified from retrying the case. Briggs v. Superior Court, 215 Cal. 336, 343 et seq., 10 P.2d 1003; Chastain v. Superior Court, 14 Cal.App.2d 97, 101 et seq., 57 P.2d 982; Evans v. Superior Court, 107 Cal.App. 372, 380-384, 290 P. 662; see 1 Witkin, California Procedure (1954), p. 168 et seq.

In Evans v. Superior Court, supra, the judge, at the close of the trial, stated that in his opinion two of the defendants had been guilty of deliberately falsifying while under oath. Later another case in which these two persons were parties was assigned to the same judge for trial, and prohibition was sought to prevent the judge from trying the case. It was held that the judge was biased and prejudiced against the defendants and that a fair and impartial trial could not be had before him. 107 Cal.App. 372, 380-384, 290 P. 662. The Evans case was expressly approved in Briggs v. Superior Court, supra, which involved a retrial. The court there stated, 'As the trier of the facts [the judge] will be called upon to pass on the credibility of these petitioners as the principal witnesses in their own behalf. Is it humanly possible or probable that a judge who has stated under oath that it is his opinion that these petitioners have deliberately falsified under oath can pass upon their credibility with that impartial judicial mind which should exist in the trier of the facts? We think it not probable.' 215 Cal. at page 345, 10 P.2d at page 1007. The Chastain case also involved a retrial, and the court held that it is 'the right of a litigant to have his cause tried by one who has no preconceived opinion against his veracity which may preclude a full and a fair consideration of the facts and the law which are involved therein. * * * When there is uncontradicted evidence that the trial judge entertains a fixed opinion that a party to an action has deliberately perjured himself upon a material issue or that he is unworthy of belief, and frankly admits he possesses that frame of mind, the law entitles the litigant to the privilege of a trial before some other judge. Under such circumstances the question regarding the existence of bias or...