Thompson v. Superior Court for Los Angeles County

• Decision Date: 13 August 1962
• Citation: 23 Cal.Rptr. 841,206 Cal.App.2d 702
• Court: California Court of Appeals Court of Appeals
• Parties: Lorane Casey THOMPSON, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, John Harrison THOMPSON, Real Party in Interest. Civ. 26481.

Page 841

23 Cal.Rptr. 841

206 Cal.App.2d 702

Lorane Casey THOMPSON, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent John Harrison THOMPSON, Real Party in Interest.

Civ. 26481.

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

Aug. 13, 1962.

Arden & Arden, Beverly Hills, for petitioner.

Harold W. Kennedy, County Counsel and Donald K. Byrne, Deputy County Counsel, for respondent.

No appearance, for real party in interest.

PER CURIAM.

This is a petition for a writ of certiorari or prohibition by which petitioner seeks to annul or to prohibit the enforcement of an order issued by the Honorable Roger A. Pfaff, Judge of the Superior Court for the County of Los Angeles, in the divorce action entitled 'John Harrison Thompson vs. Lorane Casey Thompson,' Number D566388. Judge Pfaff presides in Department 8 of respondent court, it being the department designated to hear orders to show cause and contempt proceedings in connection with domestic relations matters.

The action was commenced in January 1960 by John Harrison Thompson, the real party in interest herein. Petitioner filed therein a cross-complaint upon which she was granted an interlocutory decree of divorce that was entered on January 16, 1962. The decree, in accordance with a written stipulation of the parties, awarded to petitioner the care, custody and control of the two minor children of the parties, subject to reasonable visitation rights in the father. A property settlement agreement was approved by the court and incorporated as a part of the decree, by the terms of which it was provided that 'said children shall not be removed from the State of California for a period longer than 7 consecutive days in any one month period by either of the parties without the prior written consent of the other.' The matter was heard and the interlocutory judgment was signed by Judge Burnett Wolfson.

Following entry of the interlocutory decree, petitioner sought modification of that portion thereof which restricted the removal of the children from the State of California. She asked that said provision be stricken so as to permit her and the children to reside in the State of Texas. The matter was heard on February 16, 1962, and the application for modification was denied by John R. Alexander, a court commissioner sitting as judge pro tempore in Department 8B.

On the date the last-mentioned order was made, pursuant to request of real party in interest, an order was made by Judge Hill requiring petitioner to show cause on March 15, 1962, in Department 8, why the interlocutory judgment should not be modified so as to award custody of the children to said real party in interest. The application was based upon an affidavit asserting changed conditions and circumstances since the date of the decree. Pursuant to stipulation of the parties, Judge Pfaff signed an order continuing the hearing thereon to March 16. Petitioner states that on Friday, March 16, 1962, 'Petitioner's counsel made a motion for a continuance to such date as would permit him the opportunity to take the deposition of the Real Party in Interest. Counsel's motion was denied and Judge Pfaff ordered the matter transferred to another department for hearing. Counsel renewed his motion for a continuance which was thereupon granted and the matter was ordered continued to Monday, March 19, 1962.' ¹

Upon the matter being called on March 19, and retained in Department 8 to be heard by Judge Pfaff, petitioner's counsel moved to disqualify the judge and filed an affidavit of prejudice pursuant to section 170.6 of the Code of Civil Procedure. The motion was denied upon the ground 'that the Court had already acquired jurisdiction on the matter. Defendant's affidavit under 170.6 CCP was not timely under the ruling of Jacobs v. Superior Court.' Said judge proceeded with the matter and, after hearing the testimony of both parties and other witnesses and interviewing the minor children, made an order on March 20, by which all prior orders for child custody and support were vacated and custody of the two minor children was awarded to the father subject to reasonable visitation rights in petitioner. The order also provided for petitioner to have physical custody during specified periods of time.

Petitioner seeks the within writ contending that the order of March 20 is void in that the trial judge was disqualified by the filing of the affidavit pursuant to section 170.6, which it is claimed was timely since it was filed as soon as petitioner discovered that Judge Pfaff intended to hear the matter, and before the commencement of the hearing.

Section 170.6 of the Code of Civil Procedure provides in subdivision (1): 'No judge of any superior, municipal or justice court of the State of California 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) of said section provides in pertinent part: 'Any party to or any attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit * * * that the judge before whom such action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge. Where the judge assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that day. * * * If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than the commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.' Subdivision (3) provides that if such motion is duly presented and such affidavit is duly filed, 'thereupon and without any further act or proof' the matter shall be assigned to some other judge for hearing.

It is true, as respondent contends, that the proceedings of March 19 and 20 to modify the custody provisions of the interlocutory decree were but a continuation of the original trial. (Jacobs v. Superior Court, 53 Cal.2d 187, 190, 1 Cal.Rptr. 9, 11, 347 P.2d 9, 11.) The court states in the Jacobs case, '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,' and it was held that there was no right, in such subsequent hearings, to disqualify the judge who had heard the original cause.

But the modification proceedings in question herein were not before the judge who had tried the divorce case, or the judge pro tempore who had heard the prior application for modification on February 16, 1962. In People v. Smith, 196 Cal.App.2d 854, 859, ² 17 Cal.Rptr. 330, 334, the court states: 'We construe it to be the intent of the Legislature that where a litigant has not previously exercised his privilege under 170.6 he may do so in a proceeding supplemental to the original action as to a judge other than any judge who has previously heard any phase of the matter, provided that he does so before the commencement of the hearing of the supplemental proceedings by such judge and within the time limitations specified in the section.' (See also Spector v. Superior Court, 55 Cal.2d 839, 843, 13 Cal.Rptr. 189, 361 P.2d 909.)

Respondent contends that the rule of the Jacobs case, supra, which pertained to hearings subsequent to the original proceeding, is equally applicable to preliminary proceedings which took place prior to the trial in which the interlocutory decree was granted and, since Judge Pfaff participated in many of such preliminary matters and had entered orders therein, he had jurisdiction to determine the custody matter at issue on March 19. We think that the theory of the Jacobs case is pertinent in this respect: If any of the proceedings over which Judge Pfaff presided in this case prior to the hearing on March 19 was such that the judge could have been challenged for prejudice, and this was not done, an affidavit of prejudice pursuant to section 170.6 on March 19 came too late. In other words, no such affidavit may be filed in any case after any contested matter in relation to such litigation has been submitted for decision to any judge sought to be disqualified. Conversely, an affidavit of prejudice is timely in this respect if filed and application for disqualification is made before the judge in question has made any ruling on any litigated or contested matter in the case. (See, State ex rel. Tittmann v. Hay, 40 N.M. 370, 60 P.2d 353, 354-355; State ex rel. Shufeldt v. Armijo, 39 N.M. 502, 50 P.2d 852, 854-855; Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426, 427.)

It is clear from a reading of section 170.6 that it is applicable only to the trial of a cause or the hearing of a matter. The provision that a judge shall be disqualified to 'hear any matter' in a civil or criminal action or special proceeding contemplates a hearing other than the trial of a cause. The statute is not limited in its prohibition to a hearing after the cause is at issue, or in any other manner as to time with relation to the trial of the main cause. Obviously the hearing must be one...