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District Court of Appeal, Second District, Division 2, California.


Civ. 20281.

Decided: May 12, 1954

John G. Oppenheimer, in pro. per. Edward M. Raskin, Los Angeles, for respondent.

On April 22, 1954, the above entitled court, consisting of Moore, P. J., McComb, J., and Fox, J., dismissed appeals from three orders and affirmed as modified one order of the superior court of Los Angeles County from which plaintiff had appealed. On April 28, 1954, plaintiff filed what purported to be a statement of bias and prejudice of Presiding Justice Minor Moore and Justice W. Turney Fox, which read as follows (omitting the title of the court and cause):

‘Affiant, John G. Oppenheimer, appellant herein, states that Moore, P. J. and Fox, J., are, and that each of them is, biased and prejudiced in favor of Edward M. Raskin, counsel for respondent herein, and against affiant, a citizen, war veteran and non-lawyer.

‘This statement is made pursuant to the provisions of C.C.P. sec. 170, subds. 4 and 5, and on the authority of Rosenfield v. Vosper, 70 Cal.App.2d 217, 160 P.2d 842.

‘Said jurists have permitted said Raskin to jockey for and to change his position, to the loss, damage and injury of affiant.

‘Said jurists have required affiant to suffer by the acts and misdeeds of said Raskin.

‘Said judicial officers have permitted lawyer Raskin to take advantage of his own wrong, to save face, and to heap insult upon affiant, on top of injury, all in a game of unsavory politics played and indulged in against this appellant, to harass, oppress, injure, discourage and bankrupt him, and to cause him despair.

‘No opinion or decision on appeal has been filed by said justices, and particularly, no mention at all has been made even in the mere minute order prepared by them, that their friend and fellow-lawyer, Raskin, had indulged in the chicanery against affiant, of making a wholly baseless, unfounded, frivolous and malicious costs claim for (office) copies of respondent's transcripts on appeal, contending that by reason thereof, he or his client, the respondent herein, were entitled to recover the additional sum of $67.50 from and against affiant and appellant herein, and that plaintiff's motions to strike and to tax said illegal and improper items of cost had been denied in the trial court, by two disqualified judges, to-wit, Rhone and Meyer, who had played along with Raskin's shyster tricks against affiant herein.

‘To save more face for Raskin et al., after affiant had duly appealed from the orders denying his motions to tax respondent's costs on a prior appeal to the Supreme Court of this State, and not to the District Court of Appeal, of the Second Appellate District, and also from the order refusing to vacate the order taxing respondent's costs in the sum of $170.12, as venomously claimed by his rascally lawyer, Raskin, said ministers of right and justice permitted Raskin at an hour somewhat later than the eleventh, to prevent, obstruct and frustrate affiant's appeal from the aforesaid erroneous orders and a review thereof, contrary to Reynolds v. Reynolds, 67 Cal. 176, 178, 7 P. 480, by ‘waiving’ (purportedly with great generosity) said costs of $67.50 for such copies of respondent's own personal transcripts on appeal, bought for convenience and office use of his counsel Raskin, so that the order of denial made by the trial court (Judge Rhone) could be ‘modified by awarding costs to the respondent in the sum of $96.47,’ and then affirming it, with affiant bearing all of the costs on this appeal alone, (unless respondent's office copy of the clerk's transcript on this appeal be considered as ‘costs' to respondent), including the costs for a copy of the remittitur on the former appeal, designated by Raskin to clutter up the record on this appeal. Nothing is said about a reversal of the order taxing said costs in the sum of $170.12, with directions to tax them in the sum of $96.47, much less about appellant's right to costs on this appeal, as the prevailing party, so that affiant must suffer the loss and damage by reason of Raskin's improper claim for ‘costs' for office copies of transcripts on appeal, and the party whose fault it is, pays nothing and is allowed to take advantage of his own wrong, by the ruse of mistitling his confession of error as a motion to dismiss and ‘limit the issues on appeal.’ If the ‘issues' had been ‘limited’ in the trial court, and no claim for ‘costs' for office copies of transcripts on appeal had been made by respondent against appellant, there would have been no need to appeal from orders allowing such larcenous claims, and no $31.15 (plus) expense by affiant would have been incurred for a third appeal in this case.

‘Under the circumstances, the action of Moore, P. J and of Fox, J., is unfair, unreasonable and arbitrary, and permits Raskin to capitalize with impunity on his repeated making of cost claims for copies of transcripts on appeal, at affiant's expense, and without said Raskin believing in good faith or at all, that such claims for such purported ‘costs' are just or meritorious, but on the contrary, the continued making of them is peculiarly designed to vex and oppress affiant, to cause him expense, and for Raskin to get away with such misdeeds and such malicious abuse of process, resorted to without probable cause and for purposes of spite and malice. Said justices are not impartially administering equal justice under the law without regard to personalities, but are rewarding the unjustifiable misconduct of respondent's counsel, to the loss, detriment and prejudice and unlawful property deprivation of affiant, who does not happen to be an officer of the court. That significantly enough, Raskin was not asked by said judges on what, if anything, he was basing the verified claim for costs for copies of transcripts on appeal made by him in the sum of $67.50 against affiant, why he did so, or what his idea (the big idea) in so doing was, and why he should not pay to affiant such costs and expenses proximately caused by reason of and in resisting such unauthorized cost claims, of why any special privileges should be granted him, or on what basis he is entitled to cast the first stone. Affiant was not served with a copy of the trial court clerk's certificate, appearing in respondent's mistitled motion, filed April 2nd; hence, no copy hereof goes to Raskin, either.’

Thereafter on April 29, 1954, each of the above mentioned Justices filed affidavits denying any bias or prejudice against plaintiff. On May 10, 1954, pursuant to the provisions of section 170 of the Code of Civil Procedure, the undersigned was requested by the Honorable John W. Shenk, Acting Chief Justice of the Supreme Court and Chairman of the Judicial Council, to hear and determine the alleged bias and prejudice of Moore, P. J. and Fox, J.

Therefore, after due consideration of the affidavit of alleged bias and prejudice filed by plaintiff* and the answers thereto filed by the respective Justices, it is found:

(1) That Presiding Justice Minor Moore was not and is not biased and/or prejudiced against plaintiff (cf. Johnson v. State Bar, 4 Cal.2d 744, 759 [10], 52 P.2d 928);

(2) That Justice W. Turney Fox was not and is not biased and/or prejudiced against plaintiff (see Johnson v. State Bar, supra); and

(3) That plaintiff's objection that the Justices were biased and prejudiced was filed too late. The ruling as to which plaintiff endeavors to disqualify the Justices was made April 22, 1954, while his alleged statement of bias and prejudice was not filed until April 28, 1954. There is a total absence of any showing that the facts set forth in the alleged affidavit of bias and prejudice were not known by plaintiff on and prior to April 22, 1954.

The law is settled that the objection that a Justice is disqualified from hearing a cause must be made before the commencement of a hearing of any issue of fact; if made thereafter the objection is deemed to have been waived. It is obvious that this rule was not complied with in the instant case. (People v. Schoonderwood, 72 Cal.App.2d 125, 126[1], 164 P.2d 69.)


FOOTNOTE.  There being no provision in the statute (Code of Civil Procedure, sec. 170) (1) for the receipt of evidence other than the statement of bias and prejudice filed by the objecting party and the answer or answers thereto, or (2) for a formal presentation by motion with or without argument, an ex parte consideration of the evidence presented in the statement of the objecting party and the Justice's answer or answers thereto is a proper procedure for determining any issues which may be raised by the foregoing documents. (Bixby v. Hotchkis (hearing denied by the Supreme Court) 72 Cal.App.2d 368, 372[5] et seq., 164 P.2d 808.)

McCOMB, Justice.

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