Kohn v. Superior Court In and For City and County of San Francisco

• Decision Date: 19 January 1966
• Citation: 239 Cal.App.2d 428,48 Cal.Rptr. 832
• Court: California Court of Appeals Court of Appeals
• Parties: Irving KOHN and Peter Baird, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 23318.

Page 832

48 Cal.Rptr. 832

239 Cal.App.2d 428

Irving KOHN and Peter Baird, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 23318.

District Court of Appeal, First District, Division 2, California.

Jan. 19, 1966.

Hearing Denied March 16, 1966.

James C. Purcell, Mervyn Schneider, Warren Sullivan, San Francisco, for petitioners.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Justice.

Petitioners were indicted on counts of extortion, conspiracy to commit extortion, and conspiracy to pervert the administration of the laws. The trial judge denied their motion to set aside the indictment for lack of probable cause made pursuant to Penal Code section 995. Petitioners then filed motions under Code of Civil Procedure section 170.6 to disqualify the trial judge and these motions were denied as untimely. Petitioners now seek a writ of prohibition to restrain the trial judge from proceeding further in the action. The sole question here presented is whether the motion to disqualify the trial judge was timely made.

In 1957, the Legislature adopted Code of Civil Procedure section 170.6 permitting a party, by a simple charge supported by formal affidavit, to disqualify a judge deemed prejudiced. The motion to disqualify had to be timely and the courts held that a motion was too late if filed after the judge had decided preliminary contested matters (McClenny v. Superior Court, 60 Cal.2d 677, 683, 36 Cal.Rptr. 459, 388 P.2d 691). As stated in Swartzman v. Superior Court, 231 Cal.App.2d 195, at page 200, 41 Cal.Rptr. 721, at page 725: 'A challenge under section 170.6 is not timely when made after a judge has heard and ruled on contested issues of law of fact in an action or proceeding.' The theory of the courts was that a party should not be allowed to indiscriminately shop for favorable rulingsm

In 1965, the Legislature, at the suggestion of the State Bar of California, adopted the following amendment to section 170.6, subdivision (2): '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 [to disqualify] provided for herein at the time and in the manner hereinbefore provided.' [Emphasis added.] (See Macomber & Matthews, '1965 Legislative Program,' 40 State Bar J., 122, 127; 'Committee Reports-Administration of Justice,' 39 State Bar J., 497-498.)

When statutory language is clear and unequivocal, the legislative intent must be obtained therefrom and in such cases, there is no room for judicial construction (Caminetti v. Pacific Mutual Life Ins. Co., 22 Cal.2d 344, 353-354, 139 P.2d 908.) Here, it is crystal clear that the 1965 amendment changed the law and that a motion to disqualify a judge can now be made after any hearing or proceeding held prior to trial which does not involve a determination of a contested fact issue relating to the merits.

The principal question then is whether a hearing on a motion under Penal Code section 995 involves 'a determination of contested fact issues relating to the merits' of the case. The superior court's sole function in passing on such a motion is to decide whether the grand jury had probable cause to indict the defendant (Cotton v. Superior Court, 56 Cal.2d 459, 15 Cal.Rptr. 65, 364 P.2d 241; People v. Oppenheimer, 209 Cal.App.2d 413, 26 Cal.Rptr. 18). In a 995 proceeding, the court merely reviews the evidence. It does not...