Loftin v. Superior Court

Opinion

KAUS, P. J.

In this matter we granted an alternative writ of mandate to consider the question whether a party who has specially appeared in an action for the purpose of moving to quash summons and who has disqualified the judge about to hear the motion under the provisions of section 170.6 of the Code of Civil Procedure, has thereby made a general appearance, thus mooting the special appearance.

Petitioner’s notice of motion to quash service of summons was filed April 19, 1971. For reasons which will become apparent, we are not concerned with its merits. Opposition was filed on April 29, and again on May 10,-1971. As a prospective defendant, petitioner was a latecomer to a suit which had been pending for over a year and which had been assigned to Judge Kaufman for all purposes. Judge Kaufman was therefore the judge designated to hear the motion to quash. Counsel for petitioner then filed a declaration of prejudice pursuant to section 170.6 of the Code of Civil Procedure against Judge Kaufman who honored it and ordered the case transferred to another court. Although we do not have a transcript of the proceedings in that court, petitioner and the real parties in interest, the plaintiffs in the underlying litigation, are in agreement that the court ruled that the filing of the affidavit of prejudice constituted a general appearance.

1

[579]

We have come to the conclusion that the respondent court erred in finding that petitioner had made a general appearance. The real parties’ reliance on

Donovan

v.

Superior Court,

39 Cal.2d 848, 851 [250 P.2d 246]; and

Noorthoek

v.

Superior Court,

269 Cal.App.2d 600, 607-608 [75 Cal.Rptr. 61] seems misplaced. In those cases it was held that if a party moves to disqualify a judge under any of the subdivisions of section 170 of the Code of Civil Procedure, he makes a general appearance. Section 170 restricts the privilege to move to disqualify a judge to a party “who has appeared” in the action. No comparable restriction is found in section 170.6.