This is another in the protracted series of cases requiring interpretation of section 170.6 of the Code of Civil Procedure. The sole issue turns upon whether a notice of motion to disqualify a trial judge is timely when filed prior to a proceeding on an indirect contempt which is supplementary to a domestic relations action. For the reasons
Dora S. McClenny, now deceased,
On April 25, 1963, four and one-half months after Judge McCarthy granted plaintiff an interlocutory decree of divorce and awarded her custody of Robin Lyn McClenny, defendant filed a notice of motion requesting that Judge McCarthy modify the custody order by awarding custody of Robin Lyn to defendant. On the following day plaintiff obtained an order to show cause re contempt, signed by Judge McCarthy, based upon defendant's refusal to return Robin Lyn to plaintiff's custody after a recent visitation period. On May 10, 1963, plaintiff obtained a second order to show cause re contempt, signed by Judge McCarthy, based upon defendant's sale of several items of personal property in violation of the receivership order and upon defendant's failure to keep records of money received and obligations paid as required by the receivership order.
Defendant's motion and the two contempt matters were
Defendant now seeks a writ of prohibition to restrain Judge McCarthy from hearing the pending contempt proceedings.
We turn first to a discussion of several recent cases which have established the principles which control the interpretation to be given section 170.6. We then show how the principles established by these cases apply to the instant case. We finally indicate why the defendant's formal categorization of contempt proceedings as quasi-criminal does not suffice to defeat the conclusion that the motion to disqualify was not timely.
Section 170.6 of the Code of Civil Procedure provides that no judge shall try any action or special proceeding when it is established by an affidavit that he is prejudiced against a party or attorney so that the party or attorney cannot, or believes he cannot, obtain a fair and impartial trial before such judge. Facts showing prejudice need not be alleged or proved; upon the timely making of a motion of disqualification, supported by an affidavit alleging prejudice, the case or matter, without any further act or proof, must be assigned to another judge for trial or hearing. "In no event shall any judge entertain such motion if it be made ... after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced." (Code Civ. Proc., § 170.6, subd. (2).)
In denying defendant's motion pursuant to section 170.6 the trial court correctly relied upon Jacobs v. Superior Court, supra, 53 Cal.2d 187; that case is a polestar in the section 170.6 firmament. In Jacobs petitioners moved, under section 170.6, to disqualify Judge Rhodes from hearing their motion to modify a custody order which the same judge had previously issued. This court held that Judge Rhodes properly denied the motion since the modification proceedings constituted nothing more than a continuation of the original
The decision in Jacobs compels us to focus our inquiry upon the single question of whether the contempt proceeding in the instant case is a continuation of the original domestic relations action or whether it is a separate and independent proceeding.
The result of the Jacobs case has been a catenation of cases fashioning basic rules for determining whether a particular proceeding is a continuation of a prior action or a separate and independent action. These cases fall into two general groups. One group includes those decisions in which the section 170.6 motion is made after the commencement of the principal action but prior to the undertaking of supplementary proceedings. The other includes decisions in which the motion is made prior to the commencement of the principal action but after the undertaking of preliminary proceedings. We proceed to a discussion of both groups of cases.
Several cases have held that a motion pursuant to section 170.6 is not timely when made prior to supplementary proceedings similar to the instant contempt proceeding. In Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678 [32 Cal.Rptr. 288] defendants claimed costs and disbursements under Code of Civil Procedure section 1255a after the plaintiff school district abandoned its eminent domain proceeding. Prior to the date set for hearing on the school district's motion to reduce defendant's claim for costs and disbursements, the school district moved to disqualify the judge who had presided at the original eminent domain proceeding and who was scheduled to preside at the section 1255a hearing. Placing special emphasis on the requirement that in a section 1255a proceeding the party claiming costs and disbursements must "show that the items charged were for matters necessarily relevant and material to the issues
In Stafford v. Russell, supra, 201 Cal.App.2d 719, plaintiff violated an injunction issued by Judge Rhone in an action for declaratory relief originally brought by plaintiff. Judge Rhone held plaintiff in contempt and sentenced him to jail. After the District Court of Appeal denied plaintiff's petition for habeas corpus, Judge Rhone issued an order to show cause why plaintiff should not complete his sentence. Prior to the date for hearing on the order to show cause, plaintiff moved to disqualify Judge Rhone under section 170.6. Holding that Judge Rhone properly denied the motion, the court stated that "The order to show cause hearing ... was obviously a continuation of the hearing on contempt and was supplemental in that it was sought to carry out the original judgment and order of contempt. ..." (Id. at p. 721; italics added.)
People v. Rojas (1963) 216 Cal.App.2d 819 [31 Cal.Rptr. 417], involved a hearing to modify or revoke probation. The court held that such a hearing, for the purposes of section 170.6, merely continued the original guilt trial.
In People v. Paramount Citrus Assn. (1960) 177 Cal.App.2d 505 [2 Cal.Rptr. 216], defendant moved to disqualify the trial judge who had heard the case originally but whom the appellate court reversed on appeal and ordered to take new evidence in conformance with its opinion. On a subsequent appeal the court held that the trial judge properly denied the section 170.6 motion because "the new judgment to be entered after the further proceedings in the trial court would be based upon the evidence taken at the original trial as supplemented by the additional evidence required to be taken."
Although the issues to be presented in the contempt proceeding may not be identical in every particular to the issues previously submitted to Judge McCarthy, the questions involving the interpretation of the orders allegedly contemned, and indeed, the issue of whether defendant in fact violated Judge McCarthy's orders, are "matters necessarily relevant and material to the issues involved in the [original] action." (Oak Grove School Dist. v. City Title Ins. Co., supra, 217 Cal.App.2d 678, 699.)
Finally, as the court said in Jacobs, the "judge who tried the case ... is ordinarily in the best position to pass upon the questions involved," and to hear matters involving the same or closely related issues. (Jacobs v. Superior Court, supra, 53 Cal.2d 187,
As to the first argument, section 170.6 draws no distinction between civil and criminal actions.
Chief Justice Gibson, writing in Pappa v. Superior Court, supra, 54 Cal.2d 350, 354, aptly characterized the limitations of section 170.6 as follows: "... [I]t must be remembered that until the enactment of section 170.6 in 1957 a party seeking to disqualify a judge on the ground of bias had to allege and prove the facts relied upon to establish prejudice. That procedure, which is contained in section 170 of the Code of Civil Procedure, remains available in a criminal as well as a civil action. Section 170.6, as we have seen, relieves a party of the necessity of specifying the facts relied upon as the basis of disqualification upon the ground of bias, and it thus extends a special privilege subject to the conditions set forth in the section. As pointed out in Johnson v. Superior Court, these conditions were imposed as safeguards designed to minimize abuses of the privilege." (Italics added.)
In any event, the dictum in In re Gould cannot be considered an immutable prescript. The cases have clearly held that contempt proceedings for some purposes do constitute continuations of the action from which they emanate. In a situation analogous to the instant case, the courts of this state have consistently ruled that indirect contempt proceedings may be maintained against a party over whom the court acquired personal jurisdiction in the principal cause, although notice of the order to show cause in the contempt matter was served only on the alleged contemner's attorney.
Thus the proper resolution of the present case cannot rest upon defendant's formal categorization of contempt as quasi-criminal; a more fruitful approach lies in an evaluation of the actual function performed by the contempt proceeding. In domestic relations cases in particular, that function is one of enforcement of the court's orders. As the respondent court explained: "In deciding this question, consideration should
In domestic relations actions the courts must exercise a continuing jurisdiction over the parties and over the subject matter of the action.
To hold that the contempt proceeding in the present case constitutes a separate and independent action would unduly impede the administration of justice. As respondent court
Acceptance of defendant's position would permit litigants to obtain, by repeated cycles of a contemptuous act and a motion based upon section 170.6, a perpetually fresh forum for testing disadvantageous decisions. We cannot ignore in defendant's position the potentiality for abuse of section 170.6. We cannot permit a device intended for spare and protective use to be converted into a weapon of offense and thereby to become an obstruction to efficient judicial administration.
We conclude that the contempt proceeding in the instant action is a continuation of the original domestic relations action, and that Judge McCarthy properly denied defendant's motion under section 170.6.
The alternative writ is discharged and the petition for a peremptory writ is denied.
Gibson, C.J., Traynor, J., Schauer, J., McComb. J., Peters, J., and Peek, J., concurred.