Micro/vest Corp. v. Superior Court

• Decision Date: 20 January 1984
• Citation: 198 Cal.Rptr. 404,150 Cal.App.3d 1085
• Court: California Court of Appeals Court of Appeals
• Parties: MICRO/VEST CORPORATION et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; COMPUTERLAND CORP. et al., Real Parties in Interest. A023847.

Page 404

198 Cal.Rptr. 404

150 Cal.App.3d 1085

MICRO/VEST CORPORATION et al., Petitioners, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent COMPUTERLAND CORP. et al., Real Parties in Interest.

A023847.

Court of Appeal, First District, Division 3, California.

Jan. 20, 1984.

Hearing Denied March 22, 1984.

Harold C. Nachtrieb, Nachtrieb & Streitz, P.C., Larkspur, for petitioners other than Marriner & Co., Inc., and the Reeds.

Neil E. Falconer, Dov M. Grunschlag, Robert T. Fries, Steinhart & Falconer, San Francisco, for Marriner & Co., Inc., P. Loring Reed, Jr., Philip L. Reed, III.

Williams & Connolly, Irving Younger, Steven M. Umin, Bruce R. Genderson, Washington, D.C., Rogers, Joseph, O'Donnell & Quinn, Martin Quinn, Margot Wenger, San Francisco, for real parties in interest.

SCOTT, Associate Justice.

This petition challenges a ruling by one superior court judge that another judge of the same court was disqualified under Code of Civil Procedure section 170.6 ¹ and that his partial summary judgment ruling was void. We conclude that the second judge had no authority to review the first judge's ruling on the section 170.6 challenge and that the first judge's ruling should be reinstated. We issue peremptory writ of mandate.

The underlying lawsuit concerns a convertible promissory note assigned by Mariner Corp. to petitioner, Micro/Vest, a California corporation. Under authority of the note, Micro/Vest sought to exercise an option to obtain a 20 percent stock ownership in corporate entities owned by real parties in interest. Real parties asserted that the note was not assignable and refused to honor the option. Micro/Vest sued for specific performance of the option agreement.

On November 23, 1981, Micro/Vest moved for partial summary judgment seeking, inter alia, a declaration that the note was on its face assignable and that no oral agreement was made that it would not be assigned. The first hearing on the motion took place December 31, 1981, before Judge Robert Kroninger, who had been assigned for "all purposes prior to trial" by an order filed June 18, 1981. At the hearing, Judge Kroninger discussed with counsel the merits of the motion, suggested defects in real parties' declarations in opposition to the motion, and permitted a continuance to take further discovery. At the next hearing, January 22, 1982, the matter was continued again to permit further discovery and new declarations.

Before the third hearing, real parties informally requested Judge Kroninger withdraw from the case. The request was based upon real parties' discovery that Judge Kroninger and the attorney for Micro/Vest (a partial owner of the note) were both members of the Bohemian Club and had been personal friends for many years. During a hearing held April 30, 1982, Judge Kroninger reacted to the request, emphasizing that over a thousand lawyers belonged to the various clubs of which he was a member and finding the suggestion that he withdraw from all their cases to be "ludicrous at best." Judge Kroninger denied the request and suggested that if the informal approach were just a means of judge-shopping without using real parties' peremptory challenge, it was a "pretty shabby act."

Next, real parties filed a challenge for cause against Judge Kroninger (§ 170, subd. (a)(5)), based upon his relationship with the Micro/Vest attorney, his hostility toward real parties at the April 30, 1982, hearing, and his failure to disclose at the outset his relationship with the attorney. The challenge was heard by Judge Gary Strankman of the Contra Costa County Superior Court and was denied June 11, 1982. Petition for writ of prohibition and/or mandate challenging Judge Strankman's ruling was denied by this division June 14, 1982, and on June 28, 1982, the California Supreme Court denied hearing.

While the challenge to Judge Kroninger was pending before Judge Strankman and while petition for hearing was pending in the Supreme Court, proceedings on the motion for partial summary judgment were suspended. At the next hearing, June 28, 1982, real parties presented a peremptory challenge to Judge Kroninger (§ 170.6). He rejected the challenge as untimely. The next day, he ruled on the motion for partial summary judgment, finding, inter alia, that the note was assignable and that no contrary agreement had been made.

Real parties challenged the partial summary judgment ruling by a writ petition filed in this division. They did not raise the question of whether Judge Kroninger had jurisdiction to rule on the motion in light of the section 170.6 challenge and did not separately petition to reverse Judge Kroninger's ruling that the section 170.6 challenge was untimely. This court denied the petition on October 5, 1982.

In the meantime, real parties filed another challenge under section 170.6, not asking Judge Kroninger to reconsider his timeliness ruling, but only seeking to prevent him from hearing any further matters in the lawsuit. Without ruling that the second challenge was properly made, Judge Kroninger recused himself.

During the next few months, a dispute arose over interpretation of Judge Kroninger's partial summary judgment ruling. On April 8, 1983, Micro/ Vest asked Judge Donald McCullum, the Presiding Judge, either to supervise the case himself or specially assign it to a department of the court. Judge McCullum apparently accepted the assignment himself. On May 16, 1983, real parties noticed a motion to vacate Judge Kroninger's partial summary judgment ruling or in the alternative to define the scope of the remaining issues. The memorandum in support of the motion argued, inter alia, that Judge Kroninger had erred in ruling the section 170.6 challenge untimely. At the hearing, Judge McCullum reached only the question of whether the section 170.6 challenge was timely. He ruled that it was and therefore that the partial summary judgment ruling was void. Petitioners' motion for reconsideration was denied, and this petition followed.

The briefs by the parties dwell upon the authority of a court to reconsider a partial summary judgment ruling and upon the timeliness of the section 170.6 challenge to Judge Kroninger. They give scant attention to the question of whether one superior court judge can review another's rejection of a section 170.6 challenge. We find this issue dispositive and do not reach the two issues emphasized by the briefing. ²

Under the current version of section 170, a judge challenged for cause may not rule on threshold questions such as timeliness or sufficiency of the statement of prejudice. (Penthouse International, Ltd. v. Superior Court (1982) 137 Cal.App.3d 975, 187 Cal.Rptr. 535.) No such restriction applies to a judge challenged pursuant to section 170.6. While that section is not explicit, it can be read to...