Noorthoek v. Superior Court of San Luis Obispo County

• Decision Date: 11 February 1969
• Citation: 75 Cal.Rptr. 61,269 Cal.App.2d 600
• Parties: Roger P. NOORTHOEK, Petitioner, v. The SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent; Lorraine E. NOORTHOEK, Real Party in Interest. Civ. 33549.
• Court: California Court of Appeals Court of Appeals

Page 61

75 Cal.Rptr. 61

269 Cal.App.2d 600

Roger P. NOORTHOEK, Petitioner, v. The SUPERIOR COURT OF SAN LUIS OBISPO COUNTY, Respondent Lorraine E. NOORTHOEK, Real Party in Interest.

Civ. 33549.

Court of Appeal, Second District, Division 4, California.

Feb. 11, 1969.

Rehearing Denied March 4, 1969.

Caryl Warner, Los Angeles, for petitioner.

James W. Powell, Dist. Atty., and Norman A. Sherr, Deputy Dist. Atty., for respondent.

Davis & Wendt and Robert D. Wendt, San Luis Obispo, for real party in interest.

FILES, Presiding Justice.

This proceeding was brought to review orders of the superior court to the following effect: (1) adjudging petitioner in contempt for failure to obey a subpena duces tecum; (2) adjudging petitioner in contempt for failure to pay alimony and child support as required by a divorce decree; (3) modifying the provisions of the divorce decree concerning visitation of minor children and awarding additional attorney fees and costs. This court issued its order to show cause with respect to the contempt orders only, for the reason that a contempt judgment is not appealable, but is reviewable on certiorari. (Weber v. Superior Court (1945) 26 Cal.2d 144, 148, 156 P.2d 923.) The order modifying the divorce decree involves entirely different issues and is appealable under Code of Civil Procedure section 963, subdivision 2 (now § 904.1, subd. (b)); hence there is no need for review of it by extraordinary writ.

A short outline of the background will be sufficient to expose the legal issues. The parties will be referred to as they appeared in the superior court.

An interlocutory decree awarding defendant (real party in interest) a divorce from plaintiff (petitioner here) was entered April 22, 1966. During the succeeding two years there was a continuing controversy over the children and the collection of the alimony and child support, resulting in a series of court proceedings. Plaintiff is a member of the bar and appeared without an attorney. Early in the proceedings plaintiff filed an affidavit under Code of Civil Procedure, section 170.6 disqualifying Judge O'Reilly. The divorce was granted after a trial before Judge Harris, who was the only other superior court judge in the county. On June 13, 1967, while a motion to modify the decree was pending, a minute order was made in these words: 'Hon. Richard F. Harris does now disqualify himself and orders the above matter to be heard by a judge to be assigned by the Judicial Council.' The motion which was then pending was heard by Judge Smith, who was assigned from Santa Barbara County. After that, plaintiff filed a 'declaration of disqualification' against Judge Smith.

On May 28, 1968, Judge Harris signed an order, under Code of Civil Procedure, section 714, requiring plaintiff, as a judgment debtor, to appear on June 10, 1968, for examination under oath concerning his property. Concurrently the clerk issued, pursuant to defendant's application, a subpena duces tecum requiring plaintiff to attend a session of court on June 10 and bring with him specified financial records. The subpena and order were served upon plaintiff personally, according to the return made by the sheriff. On June 10 the proceedings were continued to June 24, then to June 25 by court orders.

Meanwhile on June 5 plaintiff had filed a motion to quash the subpena and the order for his examination, upon the ground, among others, that Judge Harris was disqualified and that his order was void.

On June 19 defendant applied for and obtained from Judge David (a retired judge sitting by assignment) (1) an order to show cause in re modification of child custody, and (2) an order to show cause why plaintiff should not be held in contempt. The latter order was supported by a declaration alleging that plaintiff had wilfully failed to pay child support and alimony as required by the divorce judgment. Both orders to show cause were set for hearing on June 25. The orders to show cause were served by delivery to the secretary in plaintiff's law office, which was the address plaintiff had given on his own papers in conformity with rule 201(c)(1), California Rules of Court.

On June 25 plaintiff was not in court, but defendant was present with counsel. Judge David was presiding under an assignment by the Chairman of the Judicial Council. Before the case was called, the court received a telephone message from plaintiff that he desired to submit his motion to quash upon the papers on file. A hearing was then held, after which the court denied the motion to quash and continued other matters to the following day.

On June 26 also plaintiff was absent. A hearing was held and testimony was taken, after which the court found plaintiff in contempt for disobeying the subpena. Other matters were put over to June 28.

On June 28, plaintiff again being absent, further testimony was taken, after which the court made its order modifying the divorce decree and also announced findings and a decision that plaintiff was in contempt for failure to pay support money.

Plaintiff was ordered imprisoned two days on the subpena contempt and five days on the support contempt and thereafter until he purged himself of the contempts. A signed order, containing findings, was filed July 1 and a memorandum reciting the court's reasons in more detail was filed July 8.

Disobedience of the Subpena

The subpena was issued to require the production of papers at a hearing to be conducted pursuant to Code of Civil Procedure, section 714 which provides:

'When an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, may properly be issued, whether or not such execution has been issued or returned, the judgment creditor is entitled to an order from a judge of the court, requiring such judgment debtor to appear and answer concerning his property before such judge, or a referee appointed by him, at a time and place specified in the order.'

The order directing such an examination was signed by Judge Harris, who had disqualified himself the previous year. Defendant's counsel argues that Judge Harris was not disqualified, pointing out that there is no record of any statement showing any factual basis of disqualification. Judge David, sitting in the trial court, adopted the view that Judge Harris had done no more than express his consent that this proceeding might be heard by a judge from out of the county. The record, cryptic as it is, will not support that interpretation.

Code of Civil Procedure, section 170 lists the grounds of disqualification and then provides:

'Whenever a judge or justice shall have knowledge of any fact or facts, which, under the provisions of this section, disqualify him to sit or act as such in any action or proceeding pending before him, it shall be his duty to declare the same in open court and cause a memorandum thereof to be entered in the minutes or docket.'

The minute order of June 13, 1967, must be taken to reflect Judge Harris' compliance with that statutory mandate. If he knew he was disqualified, it was 'his duty to declare the same' even though no party had challenged him. It is preferable that the disqualified judge record the facts showing the ground of disqualification, so that the parties may know whether or not the ground is one which can be waived. But we cannot say that this lack of particularity in the minute entry robs it of legal force. The entry of June 13, 1967, declaring 'Hon. Richard F. Harris does now disqualify himself' must be taken at face value, as regularly made, truly reflecting a proper decision made by the judge in accordance with the applicable statute, which is section 170.

This brings us to the question whether a disqualified judge may make an order for the examination of a judgment debtor under section 714. Section 170 says 'No justice or judge shall sit or act as such in any action or proceeding' in which he is disqualified. Section 714 specifically provides for 'an order from a judge.'

Reading the sections literally, the person who signs the order is performing an act which can only be done by a judge, and thus is acting 'as such' within the prohibition of section 170.

The broad language of section 170 stands in contrast to the more limited terms of Code of Civil Procedure section 170.6, which provides for a peremptory disqualification upon a short form of affidavit. Section 170.6 provides '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 * * *' after he has been challenged in accordance with the procedure authorized by that section. In Thompson v. Superior Court (1962) 206 Cal.App.2d 702, 23 Cal.Rptr. 841, it was decided that the act of a judge in signing an order to show cause was not subject to challenge under section 170.6, because the prohibition of that section was limited to trials and hearings. That decision supplies no authority for the acts of a judge who is disqualified under section 170.

The original form of section 170 included the statement that 'the provisions of this section shall not apply to the arrangement of the calendar, or to the regulation of the order of business * * *.' While that language was in the law, the Supreme Court held, in Petition of Los Angeles Trust Co. (1910) 158 Cal. 603, 112 P. 56, that a disqualified judge had power to sign an order required by Code of Civil Procedure, section 1277 setting the time of hearing of a proceeding for change of name. The opinion points out (at p. 607, 112 P. at p. 58) that no discretion is given to the court in making the order, and that 'such action on the part of a judge may well be held to be action relating solely to the arrangement of the calendar and regulation of the order of business.' The statutory language referred to there was removed from section 170 in 1927. Hence the decision offers no...