KEATING v. Harry E. Foster, Real Party in Interest.

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

A. G. KEATING, Petitioner, v. SUPERIOR COURT of the State of California in and for the CITY AND COUNTY OF SAN FRANCISCO, and Honorable Samuel F. Finley, as Judge thereof, Respondents. * Harry E. Foster, Real Party in Interest.

Civ. 16459.

Decided: January 06, 1955

Dan L. Garrett, Jr., San Francisco for petitioner. Morris Lowenthal, Juliet Lowenthal, San Francisco, Karl D. Lyon, San Francisco, of counsel, for respondents and real parties in interest.

Petitioner seeks prohibition to prevent Judge Samuel F. Finley from hearing the retrial of an action on the ground that, because of alleged bias and prejudice, the trial judge is disqualified to hear the case.

Petitioner was the defendant in an action which was brought by the plaintiff to recover compensatory and exemplary damages for a fraudulent conversion of the assets of plaintiff's business. The action was heard before the court without a jury. Shortly before the court announced its judgment for the plaintiff in the sum of $35,000, the judge stated that he did not believe much of the testimony of the defendant as many statements ‘were untrue and palpably false.’

At a later hearing of a motion to increase the judgment petitioner moved to introduce certain of his account books into evidence; the court, in ruling that they were irrelevant, stated: ‘and of course I make the further observation that the figures in the books were placed there either by the hand of or under the direction of Mr. Keating, and I have no confidence at all in Mr. Keating's integrity and veracity, and I wouldn't have any confidence in the figures that were in those books.’

On August 8, 1951, after vacating a prior order concerning the amount of the damages, the court set the damages at $40,940 and judgment was finally entered in the case on August 23, 1951. On appeal, Foster v. Keating, 1953, 120 Cal.App.2d 435, 261 P.2d 529, the judgment was reversed on the issue of the amount of the damages, but was affirmed on all the issues relating to the liability of petitioner. Petitions for rehearing and for hearing before the Supreme Court were denied (the latter on November 24, 1953).

On August 2, 1954, the plaintiff notified petitioner that he intended to move to set the case for a retrial. On August 11, 1954, petitioner filed with Judge Finley a petition for a change of judge. After a hearing on the petition (at which time Judge Finley reaffirmed his opinion that petitioner did not tell the truth during the trial of the action, but denied that he had any prejudice toward petitioner) he struck the petition from the record on the grounds that it was not timely and that there was no evidence which was ample to support a charge of disqualification.

The appellate court in the course of its opinion, Foster v. Keating, supra, 120 Cal.App.2d at page 455, 261 P.2d at page 541, held that: ‘[T]he findings of fact and conclusions of law insofar as they bear upon and determine the issue of liability are correct and amply supported by the evidence and the law, and will not be disturbed’ and stated, 120 Cal.App.2d at page 440, 261 P.2d at page 532: ‘Defendant intentionally kept all records of the business under his supervision and management, placing therein only the data he felt necessary to paint the picture in a light most favorable to him, making up the records and confusing the operations with records pertaining to activities of his own business and to make it impossible for plaintiff or anyone else to detect the true facts.’ Its judgment read, 120 Cal.App.2d at page 455, 261 P.2d at page 541: ‘It is, therefore, ordered that the judgment be reversed, with directions that the trial court revise the findings of fact and conclusions of law, and take such further steps and proceedings in the action as may be meet and proper, all in accordance with the views herein expressed. Each party will bear his own costs on this appeal.’

The effect of this judgment is that the cause was remanded for the sole purpose of correcting the findings of fact and conclusions of law—not for a retrial of all the issues.

The writ must be denied on two grounds. (1) The state of mind of a trial judge as to the lack of credibility of one of the parties, formed during the trial of a case, and based upon the evidence in the case does not amount to bias or prejudice. Kreling v. Superior Court, 25 Cal.2d 305, 310–312, 153 P.2d 734.

(2) A claim of bias must be promptly made. Here the remarks of the trial judge were made in open court on June 11, 1951. No complaint was made by this petitioner during the long course of his appeal from the judgment. It was not until more than three years later, on August 11, 1954, that he first raised the question of bias. Such unexplained delay fully justified the order of the trial court striking his claim of bias from the files. This conclusion is supported by Woolley v. Superior Court, 19 Cal.App.2d 611, 625, 66 P.2d 680, and is the essence of the limitations recited in section 170, Code of Civil Procedure.

The peremptory writ is denied and the alternative writ is discharged.

NONRSE, Presiding Justice.

DOOLING and KAUFMAN, JJ., concur.

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