Swartzman v. Superior Court In and For Los Angeles County

• Decision Date: 14 December 1964
• Citation: 41 Cal.Rptr. 721,231 Cal.App.2d 195
• Parties: Meyer M. SWARTZMAN and Esther Swartzman, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, and The PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Real Party in Interest. Civ. 28700. . Division 2, California
• Court: California Court of Appeals Court of Appeals

Page 721

41 Cal.Rptr. 721

231 Cal.App.2d 195

Meyer M. SWARTZMAN and Esther Swartzman, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, and The PEOPLE of the State of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Real Party in Interest.

Civ. 28700.

District Court of Appeal, Second District. Division 2, California.

Dec. 14, 1964.

Hearing Denied Feb. 10, 1965.

Louise D. Dale, Beverly Hills, for petitioners.

Harry S. Fenton, Sacramento, R. B. Pegram, Joseph A. Montoya, Richard Frank, Los Angeles, Jack M. Miller, La Habra, for real party in interest.

FLEMING, Justice.

Petition for writ of mandate or prohibition to set aside pretrial rulings of the Los Angeles Superior Court. Petitioners are defendants in an eminent domain proceeding brought by the State of California on October 3, 1963. After the cause was at issue, the State advised petitioners in February 1964, that the amount of property taken would be reduced, and in March 1964, the State furnished petitioners with a map and an amended legal description of the property to be taken. On July 15, 1964, the State noticed (1) a motion to amend the complaint to set forth the amended description of the property, and (2) a motion to set for pretrial and trial prior to October 1, 1964 (apparently to get to trial within one year in order to establish valuation at the date of summons, pursuant to Code of Civil Procedure, § 1249).

On July 21, 1964, before William E. MacFaden, J., in Department 60 of the Superior Court, petitioners contested the motions, arguing they had not had sufficient opportunity for discovery on the amended description of the property, and had not had proper notice of setting for pretrial and trial because no memorandum to set had been filed. The court allowed the amendment, and set the case for a first pretrial hearing on August 19 in Department 60, for a second pretrial hearing on September 18 in Department 60, and for trial on September 30 in Department 1.

Thereafter petitioners filed a demurrer, a motion to strike, and a motion to reconsider the order setting the case for pretrial and trial. On August 11 in Department 60 the demurrer was overruled, the motions denied, and petitioners given five days to file an amended answer to the amended complaint.

On August 14 petitioners' counsel filed a declaration of prejudice against Judge MacFaden, seeking to disqualify him under Code of Civil Procedure, section 170.6. On August 19 Judge MacFaden refused to disqualify himself and proceeded with pretrial over petitioners' objection. His pretrial order required the parties to complete all law and motion matters and all discovery by September 18, the scheduled date for the second pretrial conference; to file any amendment in connection with the issue of public use and necessity by that date; and to lodge appraisal reports with the court by September 18, which reports, if determined by the court to be fair and comparable, would then be exchanged between the parties.

On August 28 petitioners noticed the taking of the deposition of the State's independent appraiser for September 8. On September 4 the State moved for a protective order on the ground that the taking of the deposition at that time would be dilatory, annoying, oppressive, harassing, burdensome, expensive, and unjust, and that the only matters proper to the deposition not already covered by answers to interrogatories would be fully disclosed by the mutual exchange of appraisal reports at the pretrial conference. The court issued a protective order prohibiting the taking of the deposition until further order of court. Petitioners renewed their motion to disqualify the judge under Section 170.6, and their motion was again denied.

Petitioners ask this court to compel the trial court: (1) to vacate the pretrial and trial settings until a memorandum to set has been filed stating the case is at issue, or to continue the settings for a reasonable time to permit petitioners to complete discovery; (2) to transfer all further proceedings to another judge; (3) to vacate the pretrial order for an exchange of appraisal reports; (4) to vacate the protective order and permit petitioners to take the appraised's deposition.

(1) Pretrial and Trial Settings

Petitioners contend the only proper way to set a case for pretrial and trial is found in Rules 206 and 209(b) of the California Rules of Court. Rule 206 states: '(a) No civil case * * * shall be set for a pretrial conference or for trial until it is at issue and unless a party thereto has served and filed therein a memorandum to set, * * *.' Rule 209(b) provides that the clerk shall put the time and place of the pretrial conference on the civil active list and give 40 days notice by mail of the pretrial conference to all parties.

The State of California relies on the procedure for special settings by the court for trial and for pretrial provided in Rules 225 and 209(a). Rule 225 provides that 'Motions to advance, reset or specially set cases for trial shall be made on notice to all other parties, and shall be presented to the judge * * *' and Rule 209(a) provides that motions to advance, reset, or specially set for pretrial conference shall be made in the same manner as such motions are made for trial.

The procedure for special setting by a judge of a case for trial and pretrial need not conform in all respects to the rules for filing and notice which apply to a routine setting by the clerk. Clearly, it provides a method for shortening formalities in appropriate cases by direct application to the court. In County of San Mateo v. Bartole, 184 Cal.App.2d 422, 7 Cal.Rptr. 569, an eminent domain case, no memorandum to set the case for trial had been served, and plaintiff did not file its motion to specially set for trial until 33 days before the expiration of the year's valuation date under Code of Civil Procedure, section 1249. Plaintiff's motion for special setting was granted, and the case was set for pretrial 17 days after the order and for trial 31 days after the order. The settings were held proper on appeal. In the present case the final pretrial date was 59 days after the setting and the trial date 71 days after the setting order.

Special settings on motion under Rules 225 and 209(a) provide appropriate means to accelerate eminent domain proceedings and bring them to trial expeditiously. They conform to the legislative requirement that courts give these actions preference over all other civil actions in the matter of setting for trial and hearing the same. (Code of Civil Procedure § 1264.) They are authorized by Code of Civil Procedure, section 1005, which gives courts and judges specific authority in all cases to shorten the time for the notice and hearing of motions.

Here, petitioners had exact knowledge of the extent and nature of the taking since March 1964. Petitioners had notice of the final pretrial and trial dates more than two months in advance of trial. Petitioners had ample opportunity to prepare. The settings were a proper exercise of the trial court's discretion in controlling its calendar in order to achieve the preferential handling of eminent domain proceedings required by statute.

(2) Disqualification of Judge

Petitioners contend that all further proceedings in the trial court should be transferred to another judge, citing Code of Civil Procedure, section 170.6, which permits one automatic disqualification of a judge in each case on the claim of prejudice, if made five days before the hearing, or, if the judge is not known at that time, not later than the commencement of proceedings.

This contention is without merit, since petitioners' motion was not timely filed. A challenge under section 170.6 is not timely when made after a judge has heard and ruled on contested issues of law or fact in an action or proceeding. (McClenny v. Superior Court, 60 Cal.2d 677, 36 Cal.Rptr. 459, 388 P.2d 691; Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9.)

In the instant case, without challenge, on July 21 the judge heard contested motions to amend the complaint and to specially set, and, without challenge, on August 11 he heard petitioners' contested demurrer, motion to strike, and motion to reconsider his prior ruling. The subsequent challenge came too late.

In Michaels v. Superior Court, 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 judge rejected defendant's jurisdictional challenge, defendant moved to disqualify the judge from hearing the contempt matter. The motion was properly denied. On similar facts the court in Robinson v. Superior Court, 186 Cal.App.2d 644, 9 Cal.Rptr. 130, ruled that a motion under section 170 filed subsequent to the preliminary hearing was no longer timely, the court stating that parties who appear before a judge and lose the first round cannot attempt to disqualify him under section 170 for the remaining rounds. In Thompson v. Superior Court, 206 Cal.App.2d 702, 707, 23 Cal.Rptr. 841, the rule is stated that if any of the proceedings over which a judge has presided prior to the hearing in which his qualification is challenged were such that he could have been challenged but was not, a subsequent motion to disqualify comes too late.

We hold that petitioners waived their right to automatically disqualify Judge MacFaden by not acting at the time of their first contested hearing before him.

(3) Pretrial Order

The pretrial order of August 19 provided for an exchange of appraisal reports. Petitioners contend there is no requirement that an owner whose property is being taken in eminent domain proceedings obtain the services of an appraiser and incur the expense of an appraisal report. This is correct. The defendant-owner himself may testify to the value of his property and submit valuation data. But the court...