*1 Dist., Apr. 1974.] Div. Four. No. 43023. Second [Civ. Petitioner, ZDONEK,
HENRY al., et COUNTY LOS ANGELES COURT OF SUPERIOR THE Respondents; QUINTANA al., in Interest. Parties et Real M.
JOSEPH *2 Counsel
Grossman, Smaltz, & B. III for Petitioner. Perry Graven Perry Ralph Larson, Counsel, Nelsen, John H. V. County Deputy County Dwight Counsel, for Respondents. Fletcher S. for Real Parties in Interest. & Mack John Huiskamp
Higgs, Opinion here to further
FILES, P. J.This was commenced prohibit proceeding had been who allegedly disquali- action by judicial, superior under Code of Prоcedure section 170.6. a motion made Civil fied by motion. is the timeliness of the issue sole presented facts, in the and admitted in the petition controlling alleged answer, actions of the defendants two civil are Petitioner one simple. 14, 1972, in the court. On the judge presiding pending superior April (the consolidated the two civil master calendar department) S. Jefferson action to Bernard cases and the consolidated 15, 1972, Jefferson heard all On proceedings. and overruled a demurrer A motion to test propriety complaints. *3 4, 2, On October of the case as a class action was set for November 1973. 1973, filed in a motion for the court disqualification petitioner superior with the re of Jefferson. The of the motion was in Judge conformity form 170.6, and, of section if would have been quirements timely, immediately in the case.1 Jefferson of further jurisdiction to deprive effective Judge Wenke, in the master calendar department, the judge presiding the the motion to ground made an order denying disqualify upon thereupon that, unless filed. The filed here alleged was not petition it timely restrained, hear in the consoli Jefferson would action, the the master calendar dated civil pursuant 14, made 1972. April are (2) of section pertinent in subdivision sentences Three to or assigned court commissioner or judge “Where discussion here: at least is known hear the matter the cause or scheduled to try who is be made motion shall trial or hearing, date set for before the 10 days of a cause where to the trial date. If directed five before that least at days section 170.6 are provided in Code of Civil Procedure time limitations 1The “(2) (2), Any as follows: complete text of which is contained in subdivision any may establish party any attorney proceeding in such action or appearing or supported by prejudice such or declaration under an motion without notice affidavit oral or written penalty perjury or an oral under oath that the statement judge proceeding or court is pending commissioner before whom such action or assigned against any attorney or to whom it or the prejudiсed party is such or interest that attorney party attorney of such or believes or so that such or cannot impartial judge he cannot a such or have fair trial or before assigned commissioner. Where the or court commissioner to or who is try scheduled to days cause or hear the matter is known at least hearing, date set for trial оr motion shall be made least five before that calendar, date. If directed to the trial of there a a cause where is master the motion be supervising shall made to the not later time the master calendar than the the cause is for trial. In event shall or court commissioner any no juror, drawing such if it be first entertain made after the of the nаme m.tion jury, making if opening plain or there be no after the counsel for statement tiff, statement, swearing or if there be the first or the no such then after in witness giving If the evidence or after trial of the cause has otherwise commenced. (other cause), be is directed to a a the motion must motion than the trial of hearing. hear made not latеr than the of the In the case of trials or commencement for, ings be fol procedure specified shall specifically provided not herein herein nearly may presided has lowed as be. The fact that a or court commissioner hearing, or proceeding pretrial in connection a conference or other at оr acted with involving relat of contested fact issues prior to trial and not determination motion ing making provided for of the motion preclude to the shall not the later merits provided.” hereinbefore at the time and in the manner herein calendar, shall made judge super- there is a master motion the cause is master calendar not latеr than time vising .the has . . . The that a or court commissioner for trial. fact presided other hearing, at or acted in connection with conference or pro- pretrial of con- to trial and not a determination ceeding prior involving issues shall not the later making tested fact merits relating preclude for herein at the time and in the manner hеrein- motion provided before provided.” (first sentence) and master calendar 10-day—5-day provision (second sentence) have since its first been of the section
provision part 1055, (Stats. 2288.) sen- enactment' 1957. ch. The third § p. (Stats. tence above was added ch. 1965. quoted p. § 3375.) *4 the to the
Although was made assignment judge pre- a siding in the master the was not from calеndar department, calendar, master as that term is in section and in the California used 170.6 (Villarruel Rules Superior (1973) of Court v. Court 35 Cal.App.3d 861]; 562 People (1973) 35 v. Escobedo Cal.Rptr. [110 Cal.App.3d rule, 38 550]). therefore, Cal.Rptr. [110 The 10-day— the applicable rule, to the effect of 1965 5-day the amendment. subject to if a failed was to statute as it construed party Under thе prior demurrer, no further to his a opportunity a hearing challenge judge prior under section 170.6. in that case existed for of that challenge judge (1964) 195 (Swartzman Superior, Cal.Rptr. v. Court 231 [41 721]; City 145 (1967) Ball v. Council 252 Cal.App.2d Cal.Rptr. [60 139].) Bar of was and the State
The amendment drafted sponsored 1965 of the law in this California for the changing particular respect. purpоse to to bar that should right permitted preserve .a urged trials other fact determina- a under section disqualify judge tions, had earlier heard demurrers judge notwithstanding (See Administra- Report motions without Committee challenge. of Matthews, 496, 497; (1964) tion State J. Macomber & Justice 39 Bar 122, 127.) (1965) Bar Legislative Program 1965 40 State J. cases illustrate the Two out criminal arising appliсation (1966) Court Superior 1965 amendment. In Kohn v. 239 Cal.App. 832], motion 2d in a criminal case made a defendants Cal.Rptr. [48 aside, set motion the indictment under Code section which Penal was from denied. Thereafter filed a motion to judge they disqualify case. Court held the and issued trying Appeal timely, a writ from the case. prohibiting challenged judge trying The opinion “Herе, states at 430: it is clear that the 1965 amendment page crystal a the law and that changed motion to can now be made disqualify judge or after any hearing held to trial which proceeding does not involve prior of a determination contested fact issue merits.” relating Fraijo (1973) Superior Cal.Rptr. In [109 909], which a defendant bargain” pleaded guilty “plea pursuant the “bar- trial Later the withdrew from tentatively approved. then case for trial. The defendant gain,” vacated and set the plea, over moved under section from 170.6 to that judge presiding disqualify trial, but the The Court of denied the motion untimely. Appeal held the motion challenged timely proceed- prohibited Kohn decision. ing, the 1965 amendment and the authority upon which to the situation directed very was amendment plainly The 1965 has not Since the yet case at bench. challenged in the is presented contested a determination of any which involves conducted any merits, motion was filed more than and since the relating issue fact trial, the motion such to the date set for any five days рrior civil action was consolidated The fact was timely. *5 the of the 1965 not all does prevent application for
judge case, Fraijo the it is case and apparent here.2 In both the Kohn .amendment hear decide had to and trial been designated preliminary that a single judge the assignment the without by presiding and also case try motions judge.3- make the that the real in interest further contention
Counsel рarty 1973, 4, because, was on filed untimely October motion to disqualify, 1973, 12, filed a notice for a hear- the had of motion plaintiffs September action, and as a class litigation ing continuing to test propriety 27, court, at which motion for on time hearing had set that September motion, of that motion to November 2. on continued the hearing its own 4. 25 filed Octobеr to was served The motion September disqualify 2The to make a distinction between dissenting justice attempts assignment by department judge an to a Section a a of the court and name. case to say anything support distinction. The section does not not 170.6 does kind contemplates necessarily amendment that a departments of court. The 1965 about case, particular duly assigned judge been hear the that he has acted con has to case, part expected to that' with some and is hear other matters in nection case. Fraijo legal procedure was 3The under which the case is described in Superior (1973) opinion Cal.App.3d Court reference to Sambrano v. 31 274], Cal.Rptr. procedure spelled 416 where the is out in detail. [107 854 was filed since the not be that disqualification
The contention to appears with it was not a disqualification before timely five days September therefore, 27; it is argued, on hearing to set any September respect to the same matter at a is with hearing not disqualified respect datе.4 later act on was not to assume that disqualified Septem-
We However, was filed thereafter. both since the motion to ber disqualify 27 matter at date and the hearing the statute case law preclude 4, when motion to was five after October disqualify more than days or of the statute is: “Where filed. The part applicable is the cause heаr who scheduled to try commissioner to or trial known at 10 before the date set for or hear- the matter is least days least five that date.” The cases motion shall made at days ing, set, is and the is that where date postponed, establish People In timely. filed five date days motion Escobedo, postponed prior for March supra, 35 motion wаs set' then June in the same 19 and all again department. continued May 24 a motion to in that under On June disqualify 12 filed. The was continued to when again August was matter it The Court held the was heard challenged judge. Appeal (35 40). p. timely Superior (1961) Co. v. Eagle Supply Maintenance & Cal.
In 745], a made order May Cal.Rptr. [16 App.2d default for trial on resetting aside a the casе June 1. setting judgment same date was later The trial department. postponed 1 a filed a motion under sec- On September disqualify held the motion timely, The Court of because tion 170.6. Appeal “pre- five last scheduled date for trial. . sented at least before the . .” *6 Selvage was in v. Eagle Maintenance case followed Woodman The (1968) 263 394 Cal.Rptr. [69 687]. Cal.App.2d 345], Kennedy (1967) v. 256 755 People Cal.App.2d Cal.Rptr. [64 right petitioner to 4Apparently there is contention that waived move no hearing September by of 27 disqualification consenting to a continuance support any contention. 2. The record would not such The record to November of what department order happened only on 27 is shown a minute made in motion, own day reading 49 on as follows: “On the Court’s that agreement Quintana propriety to test telephone parties, plaintiff of all motion of 2, 1973, Department at in this class action is continued to November 10 a.m. 49.” heading attorneys The recital in present. The on the order indicates no the order telephone had persons indicates no more than that some on the indicated to the they willing put be over until were that the time of the later date.
855 cited interest, real is not in an parties because it involved as- point of a case signment for trial from master In Kennedy, calendar. the criminal
supervising master calendar the case to Thomas assigned Judge June Friday, 1966. On that day, Judge Thomas’ department, trial, defendants waived a and the court dismissed the which jury jury panel was in attendance. Defendants then two motions. On argued Monday, June Judge Thomas denied the motions and ordered the trial to trail another case which was in his uncompleted pending Defend- department. ants then a writ sought court, in the prohibition which wаs appellate denied on June 21. On June 18 defendants a motion to purporting fifed Thomas under section disqualify 170.6. On the district attorney’s motion the trial was over to 26. On put July defendants filed July another motion to under but without disqualify § (apparently facts). adequate On supporting Thomas July ruled that the at- challenge was In tempted untimely. affirming the Court judgment, held that the Apрeal assignment of the case to Judge Thomas was from calendar, a master and hence motion to him disqualify under section 170.6 was to be required made in the master calendar The department. observed that opinion Thomas was “Judge free to commence the trial on June but devoted the instead to day hearing defendants’ motions.” tardy (256 763.) Inasmuch as p. the case was from a master calendar for immediate trial in a trial ready department, special “master calendar” of section proviso applied.5 only place move to under disqualify section 170.6 was in the master calendar depart- ment, and the rule did not bench, In the case at 10-day—5-day apply.6 was not from a master calendar (as we have out pointed and the above) rule allowed the to be 10-day—5-day made 5 challenge date, before the actual as in days Maintenance and Eagle Escobedo, supra. calendar, directed the trial of a cause where there a master 5“If judge supervising the master calendar not later than the time shall be made (See text.) the cause is for trial.” fn. 1 for full Hospital Superior (1973) Council Cal. v. 6In Northern 247], Cal.Rptr. disqualify days the court held that a motion to made two [106 untimély. opinion points before the true trial date” was out “actual also date, case timely, had been set for trial at an earlier states that “original holding have been five motion should made before the trial date.” That People Kennedy, supra, upon based application was which court cited *7 Hospital 10-day—five-day Eagle of the time limit. Council did not mention either Selvage, supra. case, Kennedy Maintenance or Woodman v. As we read the it was upon decided the failure of the defendants make their motiоn when case assigned was upon Kennedy Eagle distinguished master calendar. Maintenance ground that did assignment the latter not involve from a master calendar. (See 761-763.) pp. this court we out it is and
Finally, point necessary proper Since Jefferson to act of an writ of way extraordinary prohibition. by case would be void. has been further him in the by disqualified, rulings (Woodman 396.) use of Selvage, The supra, writ waste of time in useless saves the court from parties superior proceedings.
Let a writ of issue before any prohibition prohibiting the Honorable Bernard Jefferson in the consolidated cases entitled S. Quin- al., Roberts, Inc., Industries, al., et vs. Prime et No. C tana, al., Industries, Inc., al., vs. C et Prime et No. the Superior Los Angeles County.
Dunn, J., concurred.
KINGSLEY, J. dissent. I
, assume, The case at I bench be- one first impression—primarily, cause “all are made after consultation assignments purpose” ordinarily with all counsél and on a them as to the stipulation by assignee judge. Here, shows, as the record us before was made assignment by pre- siding without now such a No one contests securing stipulation. in the exercise of so to act. authority, his administrative powers, lies in the value assignment pragmatic an “all reason for purpose” drawn- long potentially all matters having arising complicated counsel litigants, the time of one so that by judge, out case to heard education of wasted in the court need not be repetitive and the superior situation, thus, case. The that kind of in the intricacies of successive judges where the cases relied on by majority, differs involved in from t|iat and not to a of the court department was to particular the assignment have been made assignment may name. While the departmenal case, would continue control assumption that one judge on assignments. effect of those nor the Many was neither legal practical to another original in a transfer of the result circumstances might a different department, temporary desig- would, new case absent some nated department. assignment, assigned sitting regardless remain in the designated department, The instant Not with the “all assignments. so any particular day. purpose” name, him into it traveled with case was or re-assigned. thereafter be might to which he section after the have held To under challenge parties permit hear- after than a all and more designated judge, year parties ings *8 and counsel knew that he was to hear motion and to at the every preside trial, frustrates totally I сonclude original assignment. purpose that the controlling section 170.6 was not language that relied on by but the majority which is language directed to cases “of trials or hear- not herein ings for” and it specifically provided falls under the rule not, that a may commenced, after have a change compel judges midstream. In my opinion, rights under section petitioner’s (five expired heard demurrer) and cannot be revived. I would deny peremptory writ.