Brown v. Superior Court

Opinion

FILES, P. J.

This proceeding in mandate was brought here to review an order made by a superior court judge who had been disqualified by a declaration filed pursuant to Code of Civil Procedure section 170.6.

The underlying civil action, entitled Brown et al., plaintiffs, v. 14011 Ventura Boulevard Corporation (Ventura) et al., defendants, was assigned to Judge Rimerman for the purpose of hearing a motion filed by Safeco Insurance Company for leave to intervene. On May 29, 1981, defendant Ventura, through its Attorney Robert Sherman, filed a timely declaration disqualifying Judge Rimerman under Code of Civil Procedure section 170.6.

1

The supervising judge recognized the disqualification and heard the Safeco motion himself.

[1061]

On July 22, 1981, a demurrer to the complaint by defendant Crocker Bank, and a motion by defendant Ventura to file a supplemental complaint, came on for hearing in Judge Rimerman’s department. Before the hearing commenced, the attorney for plaintiff called Judge Rimerman’s attention to the fact that he had been disqualified. Mr. Sherman, who had filed the motion to disqualify on May 29, stated that he wished to proceed before Judge Rimerman. The attorney for plaintiff pointed out that section 170.6 barred any further proceedings before the disqualified judge. Judge Rimerman nevertheless proceeded with the hearing and ruled on the pending matters.

The first sentence of section 170.6 states unambiguously that no judge who has been disqualified under that section shall hear any matter therein which involves a contested issue of law or fact. Thus the disqualification is not limited to a particular motion or issue, but deprives the disqualified judge of jurisdiction in all further contests in that action.

(Solberg

v.

Superior Court

(1977) 19 Cal.3d 182, 190 [137 Cal.Rptr. 460, 561 P.2d 1148];

Zdonek