Cuneo v. Superior Court

BROWN (R.M.), J.

This is a petition for a writ of prohibition directed to the Superior Court of the State of California for the County of Merced restraining and prohibiting Judge Gregory P. Maushart from hearing any matter and making any order in the aforesaid action and from enforcing any temporary restraining order and preliminary injunction issued in said action and for all other proper relief.

Petitioners are trustees under the last will and testament of George Cuneo, deceased, and as surviving partners of Cuneo Bros., a copartnership, are beneficiaries under two deeds of trust executed by the Heins, the real parties in interest, as security for the payment of two promissory notes, one for $25,000 and the other for $9,675.

On May 11, 1962, the Merced County Title Company, the trustee named in the deeds of trust, filed a notice of default, and on August 10, 1962, the Heins filed an action for declaratory relief claiming there was a controversy between the parties, denying that they were in default, claiming that the obligation had not been breached, praying that the court determine the amount paid and the balance due, if any, and that the title company be enjoined from giving any notice of sale.

[454]

Thereafter, on August 15, 1962, the petitioners filed a notice of motion to bring in new parties (themselves) into this action against the title company, citing under their points and authorities, Code of Civil Procedure section 389. On the same date the petitioners, by Wilda Cuneo, filed a motion to disqualify Judge Maushart under section 170.6 of the Code of Civil Procedure on the ground that he was prejudiced, together with her affidavit in support of said motion.

On August 23, 1962, Judge Sischo made an order granting petitioners’ motion to bring new parties defendant into the action; the petitioners immediately filed an answer praying for dismissal of the proceedings.

On August 27, 1962, the Heins filed a declaration in support of a temporary restraining order and on that date Judge Maushart issued an order to show cause and temporary restraining order restraining the title company from giving any notice of sale or taking any steps provided for in the deeds of trust; and on September 7, 1962, Judge Maushart made an order as the result of a hearing on September 4th, granting the Heins a temporary injunction enjoining the title company from giving any notice of sale and taking any steps as far as the real property was concerned “until such time as it is determined whether or not the trustors of those certain deeds of trust . . . are in default.”