Mayr v. Superior Court

PIERCE, P. J.

Petitioner Alan Lee Mayr seeks prohibition directed to respondent Judge of the Superior Court to desist from sitting as a judge in the divorce action of

Mary Helen Mayr, plaintiff,

v.

Alan Lee Mayr, defendant, No. 12467,

now pending in the Superior Court of the State of California, in and for the County of Tehama. Said judge had denied petitioner’s motion for peremptory disqualification made under Code of Civil Procedure section 170.6.

We have concluded that the motion was timely, that it was properly made, that it should have been granted and that the ease should have been assigned to another judge, all as in said section provided.

Said section provides,

inter alia,

that no judge shall try any civil or criminal action “nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge is prejudiced against any party or attorney. ...”

Prejudice, within the purview of the section, is established by motion supported by affidavit or an oral statement under oath that the challenged judge “is prejudiced against . . . such party or attorney ... so that such party or attorney cannot

or believes that he cannot

have a fair and impartial trial or hearing before such judge.” (Italics supplied.)

[62]

When the motion is directed to a hearing other than the trial of a cause, “the motion must be made not later than the commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be .”

1

When the motion is properly and timely made the challenged judge is vested with no discretion to determine the question of his