Kohn v. Superior Court

TAYLOR, J.

Petitioners were indicted on counts of extortion, conspiracy to commit extortion, and conspiracy to pervert the administration of the laws. The trial judge denied their motion to set aside the indictment for lack of probable cause made pursuant to Penal Code section 995. Petitioners then filed motions under Code of Civil Procedure section 170.6 to disqualify the trial judge and these motions were denied as untimely. Petitioners now seek a writ of prohibition to restrain the trial judge from proceeding further in the action. The sole question here presented is whether the motion to disqualify the trial judge was timely made.

In 1957, the Legislature adopted Code of Civil Procedure section 170.6 permitting a party, by a simple charge supported by formal affidavit, to disqualify a judge deemed prejudiced. The motion to disqualify had to be timely and the courts held that a motion was too late if filed after the judge had decided preliminary contested matters

(McClenny

v.

Superior Court,

60 Cal.2d 677, 683 [36 Cal.Rptr. 459, 388 P.2d 691]). As stated in

Swartzman

v.

Superior Court,

231 Cal.App.2d 195, at page 200 [41 Cal.Rptr. 721] : “A challenge under section 170.6 is not timely when made after a judge has heard and ruled on contested issues of law or fact in an action or proceeding.” The theory of the courts was that a party should not be allowed to indiscriminately shop for favorable rulings.

In 1965, the Legislature, at the suggestion of the State Bar of California, adopted the following amendment to section 170.6, subdivision 2: “The fact that a judge has presided at

[430]

or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of

contested fact issues relating to the merits