Oak Grove School Dist. of Santa Clara County v. City Title Ins. Co.

• Decision Date: 28 June 1963
• Court: California Court of Appeals Court of Appeals
• Parties: OAK GROVE SCHOOL DISTRICT OF SANTA CLARA COUNTY, Plaintiff and Appellant, v. CITY TITLE INSURANCE CO. et al., Defendants and Respondents. Civ. 20409.

Page 288

32 Cal.Rptr. 288

217 Cal.App.2d 678

OAK GROVE SCHOOL DISTRICT OF SANTA CLARA COUNTY, Plaintiff and Appellant, v. CITY TITLE INSURANCE CO. et al., Defendants and Respondents.

Civ. 20409.

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

June 28, 1963.

Hearing Denied Aug. 20, 1963.

Spencer M. Williams, County Counsel, Robert S. Sturges, Deputy County Counsel, San Jose, for appellant.

Thomas L. Bocci, South San Francisco, for respondents.

MOLINARI, Justice.

This is an appeal by plaintiff from a judgment awarding costs and attorneys' fees after the abandonment of an action in eminent domain. ¹

Questions Presented

Several questions have been presented by this appeal. One of the questions presented is whether the trial judge was disqualified from sitting or acting in the proceeding for the determination of costs, disbursements, expenses, and attorneys' fees brought pursuant to Code of Civil Procedure section 1255a. ² We have concluded that this question must be answered in the affirmative. ³ Accordingly, we need not consider the other matters presented by this appeal directed to certain rulings made by the trial court during the hearing and the alleged error of the court in connection with the award of attorneys' fees. One other question remains for disposition, however. This concerns the propriety of the trial court's refusal to allow plaintiff to take depositions after judgment.

The Record

Plaintiff school district brought an action in eminent domain against defendants. The action proceeded to trial before the Honorable Raymond G. Callaghan, sitting without a jury. A judgment in condemnation was awarded to plaintiff and damages for the taking were awarded in the sum of $151,437, together with other damages in the sum of $6,509.70. Thereafter, and within the time provided for in section 1255a, plaintiff served and filed a written notice of the abandonment of the proceedings and a judgment of dismissal was entered thereon. Defendants thereupon filed a memorandum of costs and disbursements, including attorneys' fees, claiming the total sum of $25,076.70. Plaintiff then filed a notice of motion to tax costs and to modify and reduce the items for attorneys' fees and expenses incurred in the preparation for trial specified in the memorandum of costs and disbursements. Said motion contained a request that the motion be set for hearing. The motion was accordingly noticed for hearing by the clerk for May 1, 1961, at 9 a. m. in Department 8. ⁴ On May 1, 1961, counsel for plaintiff and associate counsel for defendants appeared before Judge Callaghan for said hearing, and, prior to the commencement thereof, plaintiff filed a declaration of prejudice seeking the disqualification of Judge Callaghan under section 170.6. ⁵ Judge Callaghan then made the following statement in open court: 'Now in this matter I have a declaration of Mr. Sturges in which he feels the Court is prejudiced, and he feels that the Plaintiff can't have an impartial trial. Well, of course, he doesn't ask the Judge to disqualify himself. I think by implication that would necessarily follow. Therefore, I disqualify myself. I don't know that I quite understand the difference between prejudice and bias. If there is any I suppose I must in all frankness tell you I am a little biased in this case, very much so, because I don't like the way it was handled. * * * In my opinion bad management took place and that has in all honesty created perhaps a little bias in my mind here, and I think it is quite proper that you have this matter heard before another judge.' ⁶ Judge Callaghan thereupon ordered the matter transferred to Department 6 of the said court. ⁷ The Honorable W. W. Jacka, presiding in Department 6, thereupon ordered the matter continued to May 10, 1961. When the matter came on before Judge Jacka on May 10th at 10 a. m. defendants, orally, and without previous notice, moved to have the matter transferred back to Judge Callaghan in order to permit the making of a motion before said judge to set aside the order for his disqualification previously made. Judge Jacka granted the motion and ordered the matter continued to 1:30 p. m. of the same day, at which time counsel for the respective parties appeared before Judge Callaghan. Counsel for plaintiff objected to the proceedings on two grounds: (1) on the jurisidictional ground that the matter had not been assigned to said department by the presiding judge, and (2) that the matter was not before the court pursuant to any motion or notice. These objections were overruled by the court. Counsel for defendants then made an oral motion that the court strike its previous order disqualifying itself, the minute entry of said order, and the affidavit of prejudice under section 170.6 filed by plaintiff on May 1st. Said motion was based on the contention of defendants that the trial court could not disqualify itself and that it had made its order under the mistaken belief that it was disqualified under section 170.6. The motion was argued by both sides, the argument being directed as to whether the proceeding under section 1255a was a new proceeding or a continuation of the eminent domain action. The matter being submitted for decision, Judge Callaghan granted the motion, ordered that the minute entry and affidavit of prejudice in question be stricken, and ordered that the court would retain jurisdiction to hear the motion to tax costs. Counsel for plaintiff thereupon moved the court that it disqualify itself under section 170. ⁸ This motion was denied. Plaintiff then filed a written verified motion requesting Judge Callaghan's disqualification. Said motion recited that it was being made under section 170 on the grounds of interest, prejudice or bias on the part of Judge Callaghan. The only factual allegation in said motion was the following: '[T]hat the said court on May 1, 1961, declared itself to be biased and prejudice [sic] against said plaintiff and their attorneys.' Upon motion of defendants this motion was stricken by Judge Callaghan on the ground that it did not set forth facts upon which plaintiff relied in its charge of prejudice. The matter was then continued to May 15th and again to May 26th, when the hearing of the motion to tax came on before Judge Callaghan, who, thereafter, made his judgment allowing defendants costs, expenses, and attorneys' fees in the total sum of $24,916.90.

Prior to the hearing of the motion to tax costs on May 26th, plaintiff filed a petition for a writ of prohibition in the District Court of Appeal. Said petition was predicated upon five grounds: (1) that the transfer of the matter from Judge Jacka to Judge Callaghan without the order of the presiding judge did not confer jurisdiction on Judge Callaghan to reconsider his order for disqualification; (2) that the said motion to reconsider was not duly noticed as required by law; (3) that the trial court was under a duty to disqualify itself under section 170.6 when it received plaintiff's affidavit of prejudice on May 1, 1961; (4) that the trial court erred in striking the statement of disqualification under section 170 made on May 10, 1961; and (5) that the trial court had disqualified itself in open court pursuant to section 170, subdivision 5, on May 1, 1961. The petition was denied summarily and without opinion by Division Two of this court on May 18, 1961.

The Question of Res Judicata

Defendants contend that the issue of the trial judge's disqualification has been finally adjudicated by the denial of the petition for a writ of prohibition and therefore is res judicata.

An order striking an affidavit or statement for disqualification from the files is not an appealable order and the remedy by appeal is inadequate. (Keating v. Superior Court, 45 Cal.2d 440, 443, 289 P.2d 209; Elliott v. Superior Court, 180 Cal.App.2d 894, 896, 5 Cal.Rptr. 116.) Accordingly, prohibition is a proper remedy to test whether or not a judge is disqualified to act where the facts are not in conflict. (Elliott v. Superior Court, supra, 180 Cal.App.2d p. 896, 5 Cal.Rptr. p. 118; Keating v. Superior Court, supra, 45 Cal.2d p. 443, 289 P.2d p. 210.) While the act of a judge in failing or refusing to disqualify himself is not a directly appealable order it is, however, reviewable on a later appeal from the final judgment. (Cohn v. Superior Court, 13 Cal.App.2d 565, 57 P.2d 186.) ⁹ The question presented in the case at bench is whether the matter of the judge's disqualification was finally adjudicated on its merits in the prohibition proceeding so as to preclude our consideration of that issue on this appeal. Inasmuch as we are concerned with a particular issue in the case our consideration is directed to that aspect of res judicata known as collateral estoppel. (Servente v. Murray, 10 Cal.App.2d 355, 359, 52 P.2d 270; Solari v. Atlas-Universal Service, Inc., 215 A.C.A. 663, 668, 30 Cal.Rptr. 407.) In determining the validity of the plea of collateral estoppel three questions are pertinent: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? and (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439.)

The petition for the writ of prohibition in question was denied without a hearing or opinion. The issuance of a writ of prohibition is within the judicial discretion of the court. (Barnard v. Municipal Court, 142 Cal.App.2d 324, 326, 298 P.2d 679; First Nat., etc., Bank v. Superior Court, 19 Cal.2d 409, 414, 121 P.2d 729; Havemeyer v. Superior Court, 84 Cal. 327, 401, 24 P. 121, 12 L.R.A. 627; 3 Witkin, Cal.Procedure, § 9, pp. 2472-2473.) The initial action in issuing or declining to issue...