McClenny v. Superior Court of Los Angeles County

• Citation: 388 P.2d 691,60 Cal.2d 677,36 Cal.Rptr. 459
• Court: United States State Supreme Court (California)
• Decision Date: 28 January 1964
• Parties: , 388 P.2d 691 James R. McCLENNY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Real Parties in Interest. FARMERS AND MERCHANTS TRUST COMPANY OF LONG BEACH, as Special Administrator, etc., et al. L. A. 27584.

Page 459

36 Cal.Rptr. 459

60 Cal.2d 677, 388 P.2d 691

James R. McCLENNY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Real Parties in Interest FARMERS AND MERCHANTS TRUST COMPANY OF LONG BEACH, as Special Administrator, etc., et al.

L. A. 27584.

Supreme Court of California, In Bank.

Jan. 28, 1964.

Brock & Shapero, Martin M. Shapero, and Edwin S. Saul, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Donald K. Byrne, Deputy County Counsel, for respondent.

James A. Hayes, John D. Miller, Long Beach, and Clyde L. Bronn for real parties in interest.

TOBRINER, Justice.

This is another in the protracted series of cases requiring interpretation of section 170.6 of the Code of Civil Procedure. The sole issue turns upon whether a notice of motion to disqualify a trial judge is timely when filed prior to a proceeding on an indirect contempt which is supplementary to a domestic relations action. For the reasons which we set forth below, we have concluded that such notice of motion is not timely.

Dora S. McClenny, now deceased, ¹ initiated a divorce action against defendant James R. McClenny on October 5, 1961. Judge John F. McCarthy presided at all of the numerous contested hearings in the action. ² In the year and one-half succeeding the filing of suit Judge McCarthy heard evidence and rendered decisions relating to alimony, custody and support of the McClenny children, ³ and appointment of a receiver to administer the McClennys' property. ⁴

On April 25, 1963, four and one-half months after Judge Mc,Carthy granted plaintiff an interlocutory decree of divorce and awarded her custody of Robin Lyn McClenny, defendant filed a notice of motion requesting that Judge McCarthy modify the custody order by awarding custody of Robin Lyn to defendant. On the following day plaintiff obtained an order to show cause re contempt, signed by Judge McCarthy, based upon defendant's refusal to return Robin Lyn to plaintiff's custody after a recent visitation period. On May 10, 1963, plaintiff obtained a second order to show cause re contempt, signed by Judge McCarthy, based upon defendant's sale of several items of personal property in violation of the receivership order and upon defendant's failure to keep records of money received and obligations paid as required by the receivership order.

Defendant's motion and the two contempt matters were noticed for hearing on May 22 before Judge McCarthy. Within five days of the time set for such hearing defendant filed a notice of motion and affidavit of prejudice under section 170.6 of the Code of Civil Procedure seeking to disqualify Judge McCarthy from hearing the pending contempt matters. Judge McCarthy denied the motion to disqualify on the ground that the contempt proceeding was a continuation of the original action within the meaning of Jacobs v. Superior Court (1959) 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, and Stafford v. Russell (1962) 201 Cal.App.2d 719, 20 Cal.Rptr. 112.

Defendant now seeks a writ of prohibition to restrain Judge McCarthy from hearing the pending contempt proceedings.

We turn first to a discussion of several recent cases which have established the principles which control the interpretation to be given section 170.6. We then show how the principles established by these cases apply to the instant case. We finally indicate why the defendant's formal categorization of contempt proceedings as quasi-criminal does not suffice to defeat the conclusion that the motion to disqualify was not timely.

Section 170.6 of the Code of 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, obtain a fair and impartial trial before such judge. Facts showing prejudice need not be alleged or proved; upon the timely making of a motion of disqualification, supported by an affidavit alleging prejudice, the case or matter, without any further act or proof, must be assigned to another judge for tria lor hearing. 'In no event shall any judge entertain such motion if it be made * * * after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced.' (Code Civ.Proc. § 170.6, subd. (2).)

In denying defendant's motion pursuant to section 170.6 the trial court correctly relied upon Jacobs v. Superior Court, supra, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9; that case is a polestar in the section 170.6 firmament. In Jacobs petitioners moved, under section 170.6, to disqualify Judge Rhodes from hearing their motion to modify a custody order which the same judge had previously issued. This court held that Judge Rhodes properly denied the motion since the modification proceedings constituted more than a continuation of the original custody proceedings. ⁵

The decision in Jacobs comples us to focus our inquiry upon the single question of whether the contempt proceeding in the instant case is a continuation of the original domestic relations action or whether it is a separate and independent proceeding.

The result of the Jacobs case has been a catenation of cases fashioning basic rules for determining whether a particular proceeding is a continuation of a prior action or a separate and independent action. These cases fall into two general groups. One group includes those decisions in which the section 170.6 motion is made after the commencement of the principal action but prior to the undertaking of supplementary proceedings. The other includes decisions in which the motion is made prior to the commencement of the principal action but after the undertaking of preliminary proceedings. We proceed to a discussion of both groups of cases.

Several cases have held that a motion pursuant to section 170.6 is not timely when made prior to supplementary proceedings similar to the instant contempt proceeding. In Oak Gove School Dist. v. City Title Ins. Co. (1963) 217 A.C.A. 739, 32 Cal.Rptr. 288, defendants claimed costs and disbursements under Code of Civil Procedure section 1255a after the plaintiff school district abandoned its eminent domain proceeding. Prior to the date set for hearing on the school district's motion to reduce defendant's claim for costs and disbursements, the school district moved to disqualify the judge who had presided at the original eminent domain proceeding and who was scheduled to preside at the section 1255a hearing. Placing special emphasis on the requirement that in a section 1255a proceeding the party claiming costs and disbursements must 'show that the items charged were for matters necessarily relevant and material to the issues involved in the (original) action,' the court held that the section 1255a proceeding was a continuation of the original action. (Id. at p. 760, 32 Cal.Rptr. at p. 299.)

In Stafford v. Russell, supra, 201 Cal.App.2d 719, 20 Cal.Rptr. 112, plaintiff violated an injunction issued by Judge Rhone in an action for declaratory relief originally brought by plaintiff. Judge Rhone held plaintiff in contempt and sentenced him to jail. After the District Court of Appeal denied plaintiff's petition for habeas corpus, Judge Rhone issued an order to show cause why plaintiff should not complete his sentence. Prior to the date for hearing on the order to show cause, plaintiff moved to disqualify Judge Rhone under section 170.6. Holding that Judge Rhone properly denied the motion, the court stated that, '(t)he order to show cause hearing * * * was obviously a continuation of the hearing on contempt and was supplemental in that it was sought to carry out the original judgment and order of contempt * * *.' (Id. at p. 721, 20 Cal.Rptr. at p. 114 emphasis added.)

People v. Rojas (1963) 216 A.C.A. 878, 31 Cal.Rptr. 417, involved a hearing to modify or revoke probation. The court held that such a hearing, for the purposes of section 170.6, merely continued the original guilt trial. ⁶ Likewise, Pappa v. Superior Court (1960) 54 Cal.2d 350, 5 Cal.Rptr. 703, 353 P.2d 311, declared that a retrial in a capital case did not become a separate and independent action for purposes of section 170.6. ⁷

In People v. Paramount Citrus Assn. (1960) 177 Cal.App.2d 505, 2 Cal.Rptr. 216, defendant moved to disqualify the trial judge who had heard the case originally but whom the appellate court reversed on appeal and ordered to take new evidence in conformance with its opinion. On a subsequent appeal the court held that the trial judge properly denied the section 170.6 motion because 'the new judgment to be entered after the further proceedings in the trial court would be based upon the evidence taken at the original trial as supplemented by the additional evidence required to be taken.' ⁸ (Id. at p. 512, 2 Cal.Rptr. at p. 220.)

Several cases have also held that a section 170.6 motion comes too late when filed after the judge has decided preliminary contested matters. Thus in Michaels v. Superior Court (1960) 184 Cal.App.2d 820, 7 Cal.Rptr. 858, defendant appeared specially to challenge the jurisdiction of the trial court in a contempt action. After the trial judge rejected defendant's jurisdictional challenge, defendant moved to disqualify the judge from hearing the contempt matter. The appellate court affirmed the denial of defendant's motion. ⁹ On similar facts the court in Robinson v. Superior Court (1960) 186 Cal.App.2d 644, 9 Cal.Rptr. 130, held that a motion under Code of Civil Procedure section 170 (disqualification for cause) was not timely when filed subsequent to the preliminary hearing, the court stating that, 'parties claiming that a judge is disqualified cannot participate in a proceeding before him and, after they have lost the 'first round,' attempt to disqualify him as to the remaining 'rounds. " (Id. at p. 649, 9 Cal.Rptr. at p. 134.) ¹⁰ Thus the holding in Jacobs v. Superior...