McClenny v. Superior Court of Los Angeles County

• Decision Date: 12 August 1963
• Citation: 33 Cal.Rptr. 38
• Court: California Court of Appeals Court of Appeals
• Parties: James R. McCLENNY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Dora S. McCLENNY, Real Party in Interest. Civ. 27432.

Page 38

33 Cal.Rptr. 38

James R. McCLENNY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Dora S. McCLENNY, Real Party in Interest.

Civ. 27432.

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

Aug. 12, 1963.

Rehearing Denied Sept. 5, 1963.

Brock & Shapero, Hollywood, for petitioner.

Harold W. Kennedy and Donald K. Byrne, Los Angeles, for respondent.

James A. Hayes, Long Beach, for real party in interest.

PER CURIAM.

This is a petition for a writ of prohibition directed to the Superior Court of Los Angeles County restraining and prohibiting Judge John F. McCarthy from hearing contempt proceedings pending before him.

Petitioner, James R. McClenny, is the defendant in a divorce action instituted by real party in interest, Dora S. McClenny, in October of 1961. The divorce hearing and numerous motions in the litigation were heard and determined by Judge McCarthy in Department South 'H' of respondent court.

On April 25, 1963, defendant filed a motion seeking modification of the child custody provisions contained in the interlocutory decree of divorce of December 13, 1962. On April 26, 1963, plaintiff obtained an order to show cause re contempt, signed by Judge McCarthy, based upon asserted violation by defendant of certain custody provisions of said interlocutory decree. The matter was set for hearing on May 22 before Judge McCarthy. On May 10, plaintiff obtained a second and separate order to show cause re contempt signed by the same judge, for alleged disobedience of an order relative to the receivership made in the proceeding by Judge McCarthy on August 2, 1962. This matter was also noticed for hearing on May 22, and defendant's motion for modification was continued to the same date, all matters to be heard by Judge McCarthy.

Pursuant to section 170.6 of the Code of Civil Procedure, and within five days of the date set for hearings, defendant filed a motion and affidavit of prejudice by which he sought to disqualify Judge McCarthy from hearing the contempt proceedings on May 22. The motion came on for hearing on May 21 before Judge McCarthy and was denied upon the ground that the contempt proceeding was but a 'proceeding designed for the enforcement of the court's own order' and was a mere continuance of the previous proceedings within the meaning of Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, and Stafford v. Russell, 201 Cal.App.2d 719, 20 Cal.Rptr. 112.

Section 170.6, Code of Civil Procedure, provides, in subdivision (1) that 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.' Subdivision (2) thereof provides that prejudice can be established 'by an oral or written motion without notice supported by affidavit or an oral statement under oath' charging prejudice. It requires the motion to be made, normally, five days before the day set for trial, or the time the case is assigned for trial. ¹ It is then provided in subdivision (3) that if the motion is properly and timely 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 cause or the hearing of the matter shall be assigned or transferred to another judge of the court in which the trial or matter is pending * * *.' Under this section, the motion cannot be made after the commencement of the trial or hearing, and it is settled in California that, as to any judge who has previously heard any litigated or contested matter in the case, and who could have been but was not challenged for prejudice, the motion cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.

In Jacobs v. Superior Court, supra, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, it is stated: 'Although the statute does not expressly so provide, it follows that, since the motion must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.

'In situations involving guardianship and custody orders subsequent proceedings to obtain changes in custody are continuations of the original proceeding to determine custody. * * * While, as pointed out in Cooney v. Cooney, 25 Cal.2d 202, 206, 153 P.2d 334, the modification of the custody provisions of a divorce decree is separate from and has no effect upon the portion of the decree dealing with divorce, the subsequent custody proceedings are nevertheless a continuation of the prior custody portion of the action.' (53 Cal.2d pp. 190-191, 1 Cal.Rptr. p. 11, 347 P.2d p. 11.) Further, at page 191 of 53 Cal.2d, at page 11 of 1 Cal.Rptr., at page 11 of 347 P.2d: 'If a disqualification were permitted under section 170.6 in matters which are continuations of a prior proceeding, it would mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, and without any judicial determination of the facts, be disqualified from hearing such matters as motions for modification of a support order or an injunction, as well as motions for change of custody of children. Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues.'

Petitioner does not seek to disqualify the named judge from hearing his motion to modify the interlocutory decree, conceding that such hearing is but a continuation of the divorce action and governed by the Jacobs case. He further concedes that when a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily (§ 1211, Code Civ.Proc.), and that in such case the question of disqualification cannot arise (Turkington v. Municipal Court, 85 Cal.App.2d 631, 635-636, 193 P.2d 795). The position of petitioner is that this is an indirect contempt, a proceeding separate and distinct from the divorce action, and that the judge may be disqualified under section 170.6 despite his participation in the divorce proceedings. Respondent and real party in interest, in support of their contention that the contempt proceedings here involved are but a continuation of prior hearings held and orders made in the divorce action by the same judge, rely upon Jacobs v. Superior Court, supra, and cases ² in which similar reasoning has been applied. We are of the view that, because of the nature and character of a contempt proceeding, it is not 'a part or a continuation of the original proceedings.'

It is well settled that contempt proceedings which are ancillary to civil actions are of a criminal or quasi-criminal nature. (Phillips v. Superior Court, 22 Cal.2d 256, 257, 137 P.2d 838; Foust v. Foust, 47 Cal.2d 121, 124, 302 P.2d 11; Butler v. Superior Court, 178 Cal.App.2d 763, 765, 3 Cal.Rptr. 180; Collins v. Superior Court, 145 Cal.App.2d 588, 594, 302 P.2d 805; 12 Cal.Jur.2d, § 53, p. 74.) 'Since the proceeding is essentially punitive and separate from the cause out of which it arises, all the prescribed procedural safeguards must be accorded the alleged contemner.' (In re Gould, 195 Cal.App.2d 172, 174, 15 Cal.Rptr. 326, 328.)

'A contempt proceeding is generally regarded as an original special proceeding, collateral to, and independent of, the cause in which the contempt arises, although there is some authority in conflict with this statement.' (17 C.J.S. Contempt § 62(1), p. 140.) After a review of the California cases, it is our conclusion that the general rule in this respect is followed in this State.

In Bank of America, etc. v. Carr, 138 Cal.App.2d 727, 292 P.2d 587, the question was whether the initiation of contempt proceedings by appellants constituted a general appearance in the main action. The court states, page 733 of 138 Cal.App.2d, page 591 of 292 P.2d: 'It has been repeatedly held in this State that * * * 'a general appearance made after entry of judgment has the effect of curing any defect arising from the lack of jurisdiction due to the failure to serve or notify a person of the proceedings.' [Citations.] However, in all the cases found the acts considered to constitute a general appearance were performed in the trial court and in the proceedings themselves as to which the defendant claimed lack of jurisdiction over his person because of insufficiency of notification. Contempt proceedings are separate and distinct and no part of the original case out of which they arise. They may be instituted by a party beneficially interested, although he was not a party to the original proceedings. [Citation.] This is so, although the practice is to prosecute a matter of contempt by affidavit in the cause out of which it arose and not as a separate proceeding with a title of its own. [Citation.] There is only then a deviation from the special appearance for the purpose of objecting to the jurisdiction over the person so as to constitute a general appearance, when the objecting party takes any other step which is part of the regular proceeding in the case or when he asks any relief which could be granted upon the hypothesis only that the court had jurisdiction of his person. [Citation.] Neither of the two is the case with respect to the affidavits instituting contempt proceedings. The contempt proceeding is no part of...