Zdonek v. Superior Court

• Decision Date: 29 April 1974
• Citation: 38 Cal.App.3d 849,113 Cal.Rptr. 669
• Court: California Court of Appeals Court of Appeals
• Parties: Henry ZDONEK, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, and Bernard S. Jefferson, Judge of the Superior Court, Respondents; Joseph M. QUINTANA et al., Real Parties in Interest. Civ. 43023.

Page 669

113 Cal.Rptr. 669

38 Cal.App.3d 849

Henry ZDONEK, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, and Bernard S. Jefferson, Judge of the Superior Court, Respondents Joseph M. QUINTANA et al., Real Parties in Interest.

Civ. 43023.

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

April 29, 1974.

Grossman, Smaltz, Graven & Perry and Ralph B. Perry III, Los Angeles, for petitioner.

John H. Larson, County Counsel, Los Angeles, and Dwight V. Nelsen, Deputy County Counsel, Santa Monica, for respondents.

Higgs, Fletcher & Mack and John S. Huiskamp, San Diego, for real parties in interest.

FILES, Presiding Justice.

This proceeding was commenced here to prohibit further judicial action by a superior court judge who allegedly had been disqualified by a motion made under Code of Civil Procedure section 170.6. The sole issue presented is the timeliness of the motion.

The controlling facts, as alleged in the petition and admitted in the answer, are simple. Petitioner is one of the defendants in two civil actions pending in the superior court. On April 14, 1972, the judge presiding in department 1 (the civil master calendar department) consolidated the two cases and assigned the consolidated action to Judge Bernard S. Jefferson for all further proceedings. On September 15, 1972, Judge Jefferson heard and overruled a demurrer to the complaints. A motion to test the propriety of the case as a class action was set for November 2, 1973. On October 4, 1973, petitioner filed in the superior court a motion for disqualification of Judge Jefferson. The form of the motion was in conformity with the requirements of section 170.6, and, if timely, would have been immediately effective to deprive Judge Jefferson of further jurisdiction in the case. ¹ Judge Wenke, the judge presiding in the master calendar department, thereupon made an order denying the motion to disqualify upon the ground that it was not timely filed. The petition filed here alleged that, unless restrained Judge Jefferson would hear further proceedings in the consolidated civil action, pursuant to the assignment from the master calendar department made April 14, 1972.

The sentences in subdivision 2 of section 170.6 are pertinent to the discussion here: 'Where the judge or court commissioner 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 date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. . . . The fact that a judge or court commissioner has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided.'

The 10 day--five day provision (first sentence) and the master calendar provision (second sentence) have been a part of the section since its first enactment in 1957. (Stats.1957, ch. 1055, § 1, p. 2288.) The third sentence quoted above was added in 1965. (Stats.1965, ch. 1442, § 1, p. 3375.)

Although the assignment to Judge Jefferson was made by the judge presiding in the master calendar department, the assignment was not from a master calendar, as that term is used in section 170.6 and in the California Rules of Court (Villaruel v. Superior Court (1973) 35 Cal.App.3d 559, 562, 110 Cal.Rptr. 861; People v. Escobedo (1973) 35 Cal.App.3d 32, 38, 110 Cal.Rptr. 550.) The applicable rule, therefore, is the 10 day--five day rule, subject to the effect of the 1965 amendment.

Under the statute as it was construed prior to 1965, if a party failed to challenge a judge prior to his hearing a demurrer, no further opportunity existed for challenge of that judge in that case under section 170.6. (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 41 Cal.Rptr. 421; Ball v. City Council (1967) 252 Cal.App.2d 136, 145, 60 Cal.Rptr. 139.)

The 1965 amendment was drafted and sponsored by the State Bar of California for the purpose of changing the law in this particular respect. The Bar urged that a party should be permitted to perserve his right to disqualify a judge under section 170.6 for trials and other fact determinations, notwithstanding that the judge had earlier heard demurrers and motions without challenge. (See Report of the Committee on Administration of Justice (1964) 39 State Bar J. 496, 497; Macomber & Matthews, 1965 Legislative Program (1965) 40 State Bar J. 122, 127.)

Two proceedings arising out of criminal cases illustrate the application of the 1965 amendment. In Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 48 Cal.Rptr. 832, defendants in a criminal case made a motion to set aside the indictment under Penal Code section 995, which motion was denied. Thereafter they filed a motion to disqualify the judge from trying the case. The Court of Appeal held the motion timely, and issued a writ prohibiting the challenged judge from trying the case. The opinion states at page 430, 48 Cal.Rptr. at page 833: 'Here, it is crystal clear that the 1965 amendment changed the law and that a motion to disqualify a judge can now be made after any hearing or proceeding held prior to trial which does not involve a determination of a contested fact issue relating to the merits.'

In Fraijo v. Superior Court (1973) 34 Cal.App.3d 222, 109 Cal.Rptr. 909, a defendant pleaded guilty pursuant to a 'plea bargain' which the trial judge tentatively approved. Later the judge withdrew from the 'bargain,' vacated the plea, and set the case for trial. The defendant then moved under section 170.6 to disqualify that judge from presiding over the trial, but the judge denied the motion as untimely. The Court of Appeal held the motion timely and prohibited the challenged judge from proceeding, upon the authority of the 1965 amendment and the Kohn decision.

The 1965 amendment was plainly directed to the very situation which is presented in the case at bench. Since the challenged judge has not yet conducted any hearing which involves a determination of any contested fact issue relating to the merits, and since the motion was filed more than five days prior to the date set for any such hearing or trial, the motion was timely. The fact that the consolidated civil action was assigned to the judge for all proceedings does not prevent the application of the 1965 amendment here. ² In both the Kohn case and the Fraijo case, it is apparent that a single trial judge had been designated to hear and decide preliminary motions and also try the case without further assignment by the presiding judge. ³

Counsel for real party in interest made the further contention that the motion to disqualify, filed October 4, 1973, was untimely because, on September 12, 1973, the plaintiffs had filed a notice of motion for a hearing to test the propriety of continuing the litigation as a class action, and had set that motion for hearing on September 27, at which time the court, on its own motion, continued the hearing of that motion to November 2. The motion to disqualify was served September 25 and filed October 4. The contention appears to be that since the disqualification was not filed five days before September 27, it was not a timely disqualification with respect to any hearing set on September 27; and therefore, it is argued, the judge is not disqualified with respect to hearing the same matter at a later date. ⁴

We assume that Judge Jefferson was not disqualified to act on September 27 since the motion to disqualify was filed thereafter. However, both the statute and the case law preclude his hearing the matter at any date more than five days after October 4, when the motion to disqualify was filed. The applicable part of the statute is: 'Where the judge or court commissioner 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 date.' The cases established that where a hearing date is set, and the hearing is postponed, a motion filed five days prior to the postponed date is timely. In People v. Escobedo, Supra, 35 Cal.App.3d 32, 110 Cal.Rptr. 550, a motion was set for March 9, then continued to May 19 and again to June 30, all in the same department. On June 24 a motion to disqualify the judge in that department under 170.6 was filed. The matter was again continued to August 12 when it was heard by the challenged judge. The Court of Appeal held the motion timely (35 Cal.App.3d at p. 40, 110 Cal.Rptr. 550).

In Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 694, 16 Cal.Rptr. 745, 747 a judge made an order on May 2 setting aside a default judgment and resetting the case for trial on June 1. The trial date was later postponed to September 6 in the same department. On September 1 a party filed a motion to disqualify the judge under section 170.6. The Court of Appeal held the motion timely, because 'presented at least five days before the last scheduled date for trial. . . .'

The Eagle Maintenance case was followed in Woodman v. Selvage (1968) 263 Cal.App.2d 390, 394, 69 Cal.Rptr. 687.

People v. Kennedy (1967) 256 Cal.App.2d 755, 64 Cal.Rptr. 345, cited by real parties in interest, is not in point because it involved an assignment of a case for trial from a master calendar. In Kennedy, the judge supervising the criminal master calendar assigned the case to Judge Thomas on Friday, June 3, 1966. On that day, in Judge Thomas' department, the defendants waived a jury trial, and the court dismissed the jury panel which was in attendance....