Louisiana-Pacific Corp. v. Philo Lumber Co.

• Decision Date: 25 January 1985
• Docket Number: LOUISIANA-PACIFIC
• Citation: 163 Cal.App.3d 1212,210 Cal.Rptr. 368
• Court: California Court of Appeals Court of Appeals
• Parties: CORPORATION, Plaintiff, Cross-Defendant and Respondent, v. PHILO LUMBER COMPANY, a California Corporation, and West Range Corporation, a California Corporation, Defendants, Cross-Complainants, and Appellants, and Cross-Related Action. A020355.

Page 368

210 Cal.Rptr. 368

163 Cal.App.3d 1212

LOUISIANA-PACIFIC CORPORATION, Plaintiff, Cross-Defendant and Respondent, v. PHILO LUMBER COMPANY, a California Corporation, and West Range Corporation, a California Corporation, Defendants, Cross-Complainants, and Appellants and Cross-Related Action.

A020355.

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

Jan. 25, 1985.

Robert A. Montgomery, Teal & Montgomery, P.C., Santa Rosa, for defendants, cross-complainants, and appellants.

HOLMDAHL, Associate Justice.

This is an appeal by defendants from a civil judgment, which they contend is void because the trial judge who heard the case had been peremptorily challenged by a codefendant who, before trial, was dismissed from the case.

The judgment is reversed.

Statement of Facts--Procedural History

In its amended complaint, plaintiff and respondent Louisiana-Pacific Corporation alleged three causes of action against three defendants: Landis Morgan (a natural person), Philo Lumber Company (a California corporation), and West Range Corporation (a California corporation). Landis Morgan was alleged to be the president and agent of both corporate defendants, an allegation implicitly admitted by defendants and appellants in their combined answer to the amended complaint.

On June 11, 1982, a minute order was made setting the matter for trial on September 7, 1982, before Judge Arthur B. Broaddus. On September 2, 1982, a peremptory challenge under Code of Civil Procedure section 170.6 was filed. ¹ The challenge was signed by defendant Landis Morgan. In it, Morgan stated that he believed Judge Broaddus was prejudiced against him. The challenge appears to contain the matter required by section 170.6.

The next day, September 3, 1982, Louisiana-Pacific filed a dismissal, without prejudice, of the entire action as against Morgan only. Contemporaneously, Louisiana-Pacific filed a peremptory challenge of Judge Timothy O'Brien.

On September 7, 1982, the case was called to trial by Judge Broaddus. Mr. Montgomery, the attorney for all defendants, brought up the fact of the challenge and the following exchange occurred among Judge Broaddus, defendants' counsel and Louisiana-Pacific's counsel (Mr. Brigham):

"THE COURT: ALL RIGHT. LOUISIANA-PACIFIC VERSUS PHILO LUMBER, ARE YOU READY?

"MR. BRIGHAM: YES, YOUR HONOR, READY FOR LOUISIANA-PACIFIC.

"THE COURT: ALL RIGHT.

"MR. MONTGOMERY: YOUR HONOR, ROBERT MONTGOMERY APPEARING FOR THE DEFENDANT.

"WITH ALL DUE RESPECT TO THE COURT WE DID CHALLENGE YOUR HONOR ON THURSDAY.

"THE COURT: THAT'S TRUE. THAT DEFENDANT HAS BEEN DISMISSED FROM THE ACTION AND WE'LL PROCEED AGAINST THE OTHERS.

"MR. MONTGOMERY: WELL, IT'S MY UNDERSTANDING THAT WAS FILED ON BEHALF OF ALL THE DEFENDANTS.

"MR. BRIGHAM: ALL IT SAYS IS THAT--

"THE COURT: THAT'S CORRECT. YOU CAN PROCEED WITH THE CASE."

Following trial of the matter, Judge Broaddus rendered judgment on the amended complaint in favor of Louisiana-Pacific.

Although the distinctions are not apparent on the face of the amended complaint, it appears from the record as a whole that the first cause of action was directed primarily against Philo Lumber, while the other two causes were directed against West Range. Philo had filed a cross-complaint against Louisiana-Pacific, and on May 26, 1982, Louisiana-Pacific and Philo Lumber entered into a stipulation by which they settled the claims each had against the other. The stipulation expressly reserved the issue of attorneys' fees for litigation at the time of trial of Louisiana-Pacific's complaint against West Range.

Thus, at trial Louisiana-Pacific's counsel described the remaining action as follows: "[p] MR. BRIGHAM: YOUR HONOR, THIS CASE BEGAN WITH THREE CAUSES OF ACTION. THE FIRST BEING AGAINST PHILO LUMBER COMPANY ON A CONTRACT WHICH HAS NOW BEEN SETTLED AND SET OFF AGAINST THE CROSS-COMPLAINT OF PHILO LUMBER AGAINST LOUISIANA- PACIFIC. THE NET RESULT OF THE TWO CLAIMED CROSS-COMPLAINTS BETWEEN L.P. AND PHILO IS THAT PHILO HAS STIPULATED TO A JUDGMENT IN THE AMOUNT OF APPROXIMATELY ELEVEN HUNDRED DOLLARS. THE STIPULATION SHOULD BE IN THE COURT'S FILE. [p] THAT LEAVES US JUST WITH THE SECOND AND THIRD CAUSES OF ACTION OF THE COMPLAINT WHICH INVOLVES LOUISIANA-PACIFIC AGAINST WEST RANGE ...."

After entry of judgment following the trial as well as the stipulation, a notice of appeal was filed by defendants' counsel purportedly on behalf of all three original defendants. Landis Morgan, of course, has nothing from which to appeal, since the dismissal of the action as to him resulted in there being no judgment against him as an individual. As to Philo Lumber, it is not clear what interest it has in this appeal (ignoring the apparent connections among Landis Morgan, West Range, and Philo Lumber), given that the judgment against it on the complaint and for it on its cross-complaint was entered in accordance with the stipulation between it and Louisiana-Pacific. The only issue which the stipulation expressly did not resolve--attorneys' fees--was not mentioned in the final judgment and, in fact, is not an issue on this appeal. Thus, it appears that the most Philo Lumber could complain about on appeal is that the judgment awards no attorneys' fees against Louisiana-Pacific and in favor of Philo Lumber. That fact probably gives Philo Lumber enough of an interest in the resolution of the appeal that it should remain a party.

Issues

While the parties have raised several sub-issues, the ultimate issue presented by this appeal is whether it was proper for Judge Broaddus to preside over the trial after Landis Morgan's peremptory challenge. ²

Appellants argue that upon filing of the disqualification of judge by defendant Landis Morgan, pursuant to California Code of Civil Procedure section 170.6, Judge Broaddus was without jurisdiction to proceed with the trial and was obligated to assign the trial to another judge and that, because the law in California allows only one peremptory disqualification of a judge per side of a case, that peremptory challenge benefited the remaining codefendants, West Range and Philo Lumber.

Louisiana-Pacific responds as follows: (1) There is no authority for the proposition that Morgan's disqualification inured to the benefit of the remaining defendants; (2) West Range's point on appeal was not properly raised in the trial court; and (3) notwithstanding the foregoing, appellant's disqualification declaration was fatally defective.

Benefit of Challenge to All Defendants

Two basic methods exist by which a party may seek disqualification of a judge on the ground of prejudice: (1) the challenge for cause, pursuant to section 170, and (2) the peremptory challenge, pursuant to section 170.6. The challenge in the instant case was a peremptory challenge pursuant to section 170.6.

A comparison of the pertinent language of the two code sections as they were worded in 1982 ³ is helpful. Section 170 provided, in part:

"(a) 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.

"(6) ...

"(c) Whenever a judge who shall be disqualified under the provisions of this section, to sit or act as such in any action or proceeding pending before him, neglects or fails to declare his disqualification in the manner hereinbefore provided, any party to such action or proceeding who has appeared therein may present to the court and file with the clerk a written statement objecting to the hearing of such matter or the trial of any issue of fact or law in such action or proceeding before such judge, and setting forth the fact or facts constituting the ground of the disqualification of such judge....

"...

"(e) No judge against whom a statement of objection or disqualification has been filed pursuant to this section, shall hear or pass upon any question of fact or law concerning his disqualification or the statement of objection or disqualification filed against him; but in every such case, all such questions concerning the judge's disqualification shall be heard and determined by some other judge ...."

Section 170.6 provided, in part:

"(1) No judge, ... shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge ... is prejudiced against any party or attorney or the interest of any party or attorney appearing in such action or proceeding.

"(2) Any party or any attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge, ... before whom such action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge, .... 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 shall be made at least five days before that date.... In no event shall any judge, ... entertain such motion ... after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced....

"(3) If such motion is duly presented and such affidavit or declaration under penalty of perjury is duly filed or such oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge, ... to try the cause or hear the matter. In other cases, the trial of the...