Astourian v. Superior Court

California Court of Appeal Dec 27, 1990 No. No. B051841Published

Before: George

AI Brief

AI-generated · verify before citing

Holding. A motion to disqualify a judge under Code of Civil Procedure section 170.6 is untimely when filed during postjudgment contempt proceedings that are a continuation of the original action involving substantially the same issues.

Issues

Whether a motion to disqualify a judge under section 170.6 is timely when filed after the conclusion of the original trial and the issuance of a permanent injunction.
Whether postjudgment contempt proceedings involving the original defendant and alleged aiders and abettors constitute a continuation of the original action.

Disposition. denied

Quotations verified verbatim against the opinion

“we conclude the motion to disqualify Judge Nelson was untimely and deny the petition for writ of prohibition.”

“The gravamen of the Jacobs decision establishes that a proceeding is a continuation of the original action out of which it arises if it involves ‘substantially the same issues’ as the original action.”

“These proceedings necessarily involve substantially the same issues as the original action and, therefore, are a continuation of that action.”

Opinion

GEORGE, Acting P. J. Krikor and Victorine Astourian seek a writ of prohibition to prevent respondent superior court from conducting any further proceedings in the present action other than granting petitioner Krikor Astourian’s motion pursuant to Code of Civil Procedure section 170.6 to [723]disqualify Judge Henry P. Nelson.1 Petitioners contend the motion to disqualify Judge Nelson was timely, although it was filed after the filing of a postjudgment order to show cause re contempt for disobedience of an injunction that had been issued in an action to which petitioners were not parties. For the reasons that follow, we conclude the motion to disqualify Judge Nelson was untimely and deny the petition for writ of prohibition.

Procedural History2

On May 17, 1989, Judge Nelson issued a permanent injunction in an action entitled Sergio Shoe Co., Inc. v. Tankian, Los Angeles Superior Court No. C 618660. This action, to which petitioners were not parties, arose from a covenant not to compete, which was contained in a contract for the sale, by real party in interest Onnik Kouyoumdjian, of shares of stock in Sergio Shoe Company to defendant Khatchadour Tankian.

On April 25, 1990, respondent superior court issued orders to Khatchadour Tankian, Alice Tankian, and petitioners to appear on June 20, 1990, and show cause why they should not be held in contempt for willfully disobeying the permanent injunction.

On May 30, 1990, respondent superior court granted the motion of real parties in interest Onnik Kouyoumdjian and Sergio Shoe Co., Inc., to transfer the order to show cause re contempt to Judge Nelson. That same day, petitioner Krikor Astourian filed an affidavit of prejudice pursuant to section 170.6, seeking disqualification of Judge Nelson. On June 4, 1990, an amended affidavit was filed which, unlike the initial affidavit, was executed under penalty of perjury as required by section 170.6.

On June 11, 1990, respondent superior court denied the motion for disqualification on two grounds: the motion was untimely, and petitioner Krikor Astourian could not file a motion pursuant to section 170.6 because he “ha[d] not been joined as a party to this action.” Regarding the second ground, the court observed that the petitioner could not be held in contempt for violating the injunction because he was not a party to the action, and that the initial inquiry must be whether the injunction should be broadened to include petitioner. The court stated: “Right now Mr. Tankian is under

Astourian v. Superior Court

AI Brief

More from California Court of Appeal

Related research

AI Brief