Schorr v. Superior Court

Opinion

FLEMING, J.

Petition by Henry Schorr to mandate respondent court to disqualify Commissioner Lee B. Ragin from hearing a pending cause and to assign another judge to hear orders to show cause in the matter

[570]

of petitioner’s marriage to real party in interest Norma Schorr. Pursuant to an order of the Supreme Court we issued an alternative writ.

Petitioner husband and real party in interest wife were divorced in 1969, at which time orders for child custody and support were made. Both parties now seek to modify those orders. Wife obtained a show-cause order to modify child support, and husband obtained a show-cause order to modify child custody. Petitioner husband himself set the matter for hearing on October 9, 1979, in respondent court’s southeast district, department M, where Commissioner Ragin was sitting.

On the morning of October 9 the parties stipulated that Commissioner Ragin could hear the orders to show cause as a temporary judge. Subsequent to the stipulation Commissioner Ragin conducted a conference with the parties in chambers. At noon, after the conference, counsel for husband moved to disqualify Commissioner Ragin under Code of Civil Procedure section 170.6 (peremptory disqualification) and section 170, subdivision 5 (disqualification for cause), and orally declared that the commissioner was prejudiced against his client. Counsel for husband also requested that he be given until 2 p.m. to prepare and file a written declaration setting forth the factual basis for his motion to disqualify the commissioner for cause under section 170, subdivision 5. Commissioner Ragin declined to disqualify himself, stating (1) the motions were untimely because the proceeding had already begun, and (2) he was not prejudiced. Counsel for husband then asked the commissioner to continue the hearing on the orders to show cause in order to enable him to seek a writ which would prohibit the commissioner from hearing the matter. The commissioner granted a continuance, but before doing so he ordered an increase in the amount of child support pending resumption of the proceedings in the trial court.

Under Code of Civil Procedure section 170.6 a party or his attorney may peremptorily disqualify a judge or commissioner merely by orally declaring under oath his belief that the party “cannot have a fair and impartial trial or hearing” before the judge or commissioner. Such a peremptory challenge, however, must be made “not later than the commencement of the hearing.” (Code Civ. Proc., § 170.6, subd. (2).) At bench, the hearing on the orders to show cause effectively commenced with the conference in Commissioner Ragin’s chambers. Hence, husband’s motion under section 170.6, made at the conclusion of the conference, was untimely.