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District Court of Appeal, Second District, Division 1, California.

James R. McCLENNY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Dora S. McCLENNY, Real Party in Interest.

Civ. 27432.

Decided: August 12, 1963

Brock & Shapero, Hollywood, for petitioner. Harold W. Kennedy and Donald K. Byrne, Los Angeles, for respondent. James A. Hayes, Long Beach, for real party in interest.

This is a petition for a writ of prohibition directed to the Superior Court of Los Angeles County restraining and prohibiting Judge John F. McCarthy from hearing contempt proceedings pending before him.

Petitioner, James R. McClenny, is the defendant in a divorce action instituted by real party in interest, Dora S. McClenny, in October of 1961. The divorce hearing and numerous motions in the litigation were heard and determined by Judge McCarthy in Department South ‘H’ of respondent court.

On April 25, 1963, defendant filed a motion seeking modification of the child custody provisions contained in the interlocutory decree of divorce of December 13, 1962. On April 26, 1963, plaintiff obtained an order to show cause re contempt, signed by Judge McCarthy, based upon asserted violation by defendant of certain custody provisions of said interlocutory decree. The matter was set for hearing on May 22 before Judge McCarthy. On May 10, plaintiff obtained a second and separate order to show cause re contempt signed by the same judge, for alleged disobedience of an order relative to the receivership made in the proceeding by Judge McCarthy on August 2, 1962. This matter was also noticed for hearing on May 22, and defendant's motion for modification was continued to the same date, all matters to be heard by Judge McCarthy.

Pursuant to section 170.6 of the Code of Civil Procedure, and within five days of the date set for hearings, defendant filed a motion and affidavit of prejudice by which he sought to disqualify Judge McCarthy from hearing the contempt proceedings on May 22. The motion came on for hearing on May 21 before Judge McCarthy and was denied upon the ground that the contempt proceeding was but a ‘proceeding designed for the enforcement of the court's own order’ and was a mere continuance of the previous proceedings within the meaning of Jacobs v. Superior Court, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, and Stafford v. Russell, 201 Cal.App.2d 719, 20 Cal.Rptr. 112.

Section 170.6, Code of Civil Procedure, provides, in subdivision (1) that no judge ‘shall try any civil or criminal action or special proceeding of any kind or character 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 or the interest of any party or attorney appearing in such action or proceeding.’ Subdivision (2) thereof provides that prejudice can be established ‘by an oral or written motion without notice supported by affidavit or an oral statement under oath’ charging prejudice. It requires the motion to be made, normally, five days before the day set for trial, or the time the case is assigned for trial.1 It is then provided in subdivision (3) that if the motion is properly and timely made, ‘thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge to try the cause or hear the matter. In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge of the court in which the trial or matter is pending * * *.’ Under this section, the motion cannot be made after the commencement of the trial or hearing, and it is settled in California that, as to any judge who has previously heard any litigated or contested matter in the case, and who could have been but was not challenged for prejudice, the motion cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.

In Jacobs v. Superior Court, supra, 53 Cal.2d 187, 1 Cal.Rptr. 9, 347 P.2d 9, it is stated: ‘Although the statute does not expressly so provide, it follows that, since the motion must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.

‘In situations involving guardianship and custody orders subsequent proceedings to obtain changes in custody are continuations of the original proceeding to determine custody. * * * While, as pointed out in Cooney v. Cooney, 25 Cal.2d 202, 206, 153 P.2d 334, the modification of the custody provisions of a divorce decree is separate from and has no effect upon the portion of the decree dealing with divorce, the subsequent custody proceedings are nevertheless a continuation of the prior custody portion of the action.’ (53 Cal.2d pp. 190–191, 1 Cal.Rptr. p. 11, 347 P.2d p. 11.) Further, at page 191 of 53 Cal.2d, at page 11 of 1 Cal.Rptr., at page 11 of 347 P.2d: ‘If a disqualification were permitted under section 170.6 in matters which are continuations of a prior proceeding, it would mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, and without any judicial determination of the facts, be disqualified from hearing such matters as motions for modification of a support order or an injunction, as well as motions for change of custody of children. Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him without presenting facts showing prejudice, in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues.’

Petitioner does not seek to disqualify the named judge from hearing his motion to modify the interlocutory decree, conceding that such hearing is but a continuation of the divorce action and governed by the Jacobs case. He further concedes that when a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily (§ 1211, Code Civ.Proc.), and that in such case the question of disqualification cannot arise (Turkington v. Municipal Court, 85 Cal.App.2d 631, 635–636, 193 P.2d 795). The position of petitioner is that this is an indirect contempt, a proceeding separate and distinct from the divorce action, and that the judge may be disqualified under section 170.6 despite his participation in the divorce proceedings. Respondent and real party in interest, in support of their contention that the contempt proceedings here involved are but a continuation of prior hearings held and orders made in the divorce action by the same judge, rely upon Jacobs v. Superior Court, supra, and cases2 in which similar reasoning has been applied. We are of the view that, because of the nature and character of a contempt proceeding, it is not ‘a part or a continuation of the original proceedings.’

It is well settled that contempt proceedings which are ancillary to civil actions are of a criminal or quasi-criminal nature. (Phillips v. Superior Court, 22 Cal.2d 256, 257, 137 P.2d 838; Foust v. Foust, 47 Cal.2d 121, 124, 302 P.2d 11; Butler v. Superior Court, 178 Cal.App.2d 763, 765, 3 Cal.Rptr. 180; Collins v. Superior Court, 145 Cal.App.2d 588, 594, 302 P.2d 805; 12 Cal.Jur.2d, § 53, p. 74.) ‘Since the proceeding is essentially punitive and separate from the cause out of which it arises, all the prescribed procedural safeguards must be accorded the alleged contemner.’ (In re Gould, 195 Cal.App.2d 172, 174, 15 Cal.Rptr. 326, 328.)

‘A contempt proceeding is generally regarded as an original special proceeding, collateral to, and independent of, the cause in which the contempt arises, although there is some authority in conflict with this statement.’ (17 C.J.S. Contempt § 62(1), p. 140.) After a review of the California cases, it is our conclusion that the general rule in this respect is followed in this State.

In Bank of America, etc. v. Carr, 138 Cal.App.2d 727, 292 P.2d 587, the question was whether the initiation of contempt proceedings by appellants constituted a general appearance in the main action. The court states, page 733 of 138 Cal.App.2d, page 591 of 292 P.2d: ‘It has been repeatedly held in this State that * * * ‘a general appearance made after entry of judgment has the effect of curing any defect arising from the lack of jurisdiction due to the failure to serve or notify a person of the proceedings.’ [Citations.] However, in all the cases found the acts considered to constitute a general appearance were performed in the trial court and in the proceedings themselves as to which the defendant claimed lack of jurisdiction over his person because of insufficiency of notification. Contempt proceedings are separate and distinct and no part of the original case out of which they arise. They may be instituted by a party beneficially interested, although he was not a party to the original proceedings. [Citation.] This is so, although the practice is to prosecute a matter of contempt by affidavit in the cause out of which it arose and not as a separate proceeding with a title of its own. [Citation.] There is only then a deviation from the special appearance for the purpose of objecting to the jurisdiction over the person so as to constitute a general appearance, when the objecting party takes any other step which is part of the regular proceeding in the case or when he asks any relief which could be granted upon the hypothesis only that the court had jurisdiction of his person. [Citation.] Neither of the two is the case with respect to the affidavits instituting contempt proceedings. The contempt proceeding is no part of the regular proceeding and relief in contempt can be asked by a person interested who had not been a party to the original proceeding; * * *. Such appearance in the contempt proceedings only does not under the above authorities constitute a general appearance which cures defects in service.' (Emphasis added.)

Killpatrick v. Superior Court, 153 Cal.App.2d 146, 314 P.2d 164, involved the review of an order by which petitioner was adjudged in contempt of court and sentenced to jail for his asserted failure to comply with a prior order of the court for the support of his former wife and children. The judgment was annulled because petitioner did not have counsel and had not been advised of his constitutional rights and in particular that he had a constitutional right not to testify. The court quotes from Ex parts Gould, 99 Cal. 360, 33 P. 1112, 21 L.R.A. 751, as stating the pertinent principles applicable: “Contempt of court is a public offense, and by section 166 of the Penal Code is expressly declared to constitute a misdemeanor * * *. It is none the less a criminal offense that the statute authorizes it to be punished by indictment or information, as well as by the summary proceedings provided in sections 1209–1222 of the Code of Civil Procedure. By these provisions, the procedure for the investigation of the charge is analogous to the criminal procedure, and the judgment against the person guilty of the offense is visited with fine or imprisonment or both—the essential elements of a judgment for a criminal offense. * * * ‘Although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action, but is in the nature of a criminal prosecution. Its purpose is not to indemnify the plaintiff for any damages he may have sustained by reason of such misconduct, but to vindicate the dignity and authority of the court. It is a special proceeding, criminal in character, in which the state is the real plaintiff or prosecutor.’ [Citation.]” (Emphasis added.)

In Gale v. Tuolumne County Water Co., 169 Cal. 46, 51, 145 P. 532, 534, the defendant was found guilty of contempt for violation of terms of an injunctive order of court. Its attempt to appeal from that order was dismissed. Defendant claimed ‘that, inasmuch as the action of Gale v. Water Company was a case in equity, it has a right of appeal by virtue of section 4, article 6 of the Constitution, which provides for an appeal from the superior court to the Supreme Court ‘in all cases in equity except such as arise in justices' courts.” The court states: ‘A sufficient answer to this contention, in addition to the authority of the cases cited supra, is that a contempt proceeding, though it may arise in a case in equity, is an independent proceeding between the contemner and the court, criminal or quasi criminal in its nature, and is not itself a ‘case in equity.”

The applicable principles are well stated in Robertson v. State, 20 Ala.App. 514, 104 So. 561, 564–565: ‘A contempt proceeding raises an issue outside of the pending cause. While in some cases, it may, in a sense, be collateral to the main cause, it is not a part of that cause. It is a separate, independent proceeding, governed by well-established rules of procedure, and has no proper place in the record of the main cause. * * * It is in the nature of a special proceeding, collateral to but independent of the cause in which the contempt arises and of a criminal nature. * * *

‘In Ex parte Dickens, 162 Ala. 272, 50 So. 218, our Supreme Court approved a further classification as follows: “A ‘civil contempt’ consists in failing to do something ordered to be done by a court in a civil action, for the benefit of the opposing party therein.' * * * While there have been some opinions to the contrary, the weight of authority, as well as the reason of the case, is that a proceeding for contempt is not a part of the main case, before the court, but is collateral to it, a proceeding in itself, and consequently would not come up for consideration on an appeal in the main case.' * * *

‘We therefore conclude that a proceeding for contempt to punish a respondent for failure to comply with a decree providing for the payment of alimony is sui generis, collateral to but independent of, the cause in which the contempt arises, and while technically classified as a civil contempt, it is quasi criminal, in which the elements of both a civil and criminal proceeding appear.’

In State ex rel. Simpson v. Armijo, 38 N.M. 280, 31 P.2d 703, it was urged, as in the instant case, that the contempt proceeding was ‘to enforce a judgment theretofore rendered, and that the cause had already been tried and is therefore not a new action or proceeding.’ The court states, page 704 of 31 P.2d: ‘However, the instant case is a new proceeding. Though a civil contempt may be prosecuted in the cause out of which it arose and not as a separate proceeding with a title of its own and a number and page on the docket sheet, nevertheless a proceeding to punish for constructive contempt is the institution of a new proceeding, though arising out of a pending cause and auxiliary thereto. The court would have no jurisdiction and no power to punish without the initiation of the proper proceeding.’ (See also, In re Chapman, 141 Cal.App.2d 387, 295 P.2d 573; In re Wales, 153 Cal.App.2d 117, 315 P.2d 433; Petition of Crystal, 330 Mass. 583, 116 N.E.2d 255, 258; Cheney v. Richards, 130 Me. 288, 155 A. 642, 644; New England Novelty Co. v. Sandberg, 315 Mass. 739, 54 N.E.2d 915, 919.)

Decisions indicating the contrary view (see 17 C.J.S. Contempt § 62(6), p. 159) are not controlling since they come from jurisdictions which emphasize a distinction between criminal and civil contempt, depending upon the character and purpose of the punishment, which is not recognized in California. Under that line of cases a civil contempt is said to be ‘instituted and tried as a part of the main cause,’ whereas criminal contempt proceedings ‘are not a part of the original cause.’ (Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444–445, 31 S.Ct. 492, 499, 55 L.Ed. 797.) In City of Culver City v. Superior Court, 38 Cal.2d 535, 541, 241 P.2d 258, 261, our Supreme Court states: ‘The distinction between civil and criminal contempt is important in the federal and some state courts because there are procedural differences, particularly in the safeguards afforded the citee, and also, perhaps, differences in the nature of the intent which must be shown. (See, e. g., Gompers v. Buck's Stove & Range Co. (1911), 221 U.S. 418, 441, 444 et seq., 31 S.Ct. 492, 55 L.Ed. 797; [and other citations].) But in California the proceedings leading to punishment for failure to obey a decree (criminal contempt) and to imprisonment until the omitted act is performed (civil contempt) are exactly the same. (Code Civ.Proc. §§ 1209–1219; see In re Morris (1924) 194 Cal. 63, 67, 227 P. 914.)

‘Although the sections which provide the procedure for both kinds of contempt are in Part III of the Code of Civil Procedure, which is entitled ‘Special Proceedings of a Civil Nature,’ contempt proceedings are said to be ‘criminal in nature’ and those procedural rights and safeguards which are appropriate to criminal contempt proceedings are also afforded, in California, in civil contempt proceedings. (See 5 Cal.Jur., Contempt, § 37.)'

It is our conclusion that, although a contempt proceeding arises out of the original action and is prosecuted in and with the title of that case, whether the purpose is to coerce enforcement or to punish for disobedience of an order made in that case, it is essentially a new and independent proceeding, involving new issues. It is apparent that in such proceeding there is no attempt to modify, change or review in any manner an order previously made; the relief sought in no way affects issues previously determined. Clearly the reason for the rule of Jacobs v. Superior Court, supra, is not present. Nor is it a continuation of a prior proceeding as in Stafford v. Russell, supra, 201 Cal.App.2d 719, 20 Cal.Rptr. 112.

Accordingly, the provisions of section 170.6 are applicable and the within motion, having been timely and properly made, should have been granted. This conclusion, we believe, is in accord with the purposes intended to be achieved by said section. As stated in Johnson v. Superior Court, 50 Cal.2d 693, 697, 329 P.2d 5, 8: ‘It is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid suspicion of unfairness.’ And, as in McCauley v. Superior Court, 190 Cal.App.2d 562, 564, 12 Cal.Rptr. 119, 121: ‘The right conferred by Code of Civil Procedure, § 170.6 is a substantial right which is now part of the system of due process and judicial fair play in this state.’

The demurrer to the petition is overruled. Let a writ of mandate issue directing respondent to assign the two contempt matters for hearing before a judge other than Judge John F. McCarthy.


1.  ‘Where the judge assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. In no event shall any judge entertain such motion if it be made after the drawing of the name of the first juror, or if there be no jury, after the making of an opening statement by counsel for plaintiff, or if there be no such statement, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced. If 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. * * *’ (§ 170.6(2).)

2.  Some of these cases are: People v. Paramount Citrus Ass'n, 177 Cal.App.2d 505, 511, 2 Cal.Rptr. 216 (hearing to take further evidence after partial reversal on appeal); Dennis v. Overholtzer, 179 Cal.App.2d 110, 3 Cal.Rptr. 458 (orders made after judgment continuing in effect temporary injunction, and restraining order designed to maintain status quo pending appeal); People v. Smith, 196 Cal.App.2d 854, 17 Cal.Rptr. 330 (modification or revocation of probation by judge who has tried the case); People v. Rajos, 216 A.C.A. 878, 883, 31 Cal.Rptr. 417 (same); Agnew v. Cronin, 197 Cal.App.2d 535, 540, 17 Cal.Rptr. 273 (motion for new trial); Stafford v. Russell, 201 Cal.App.2d 719, 721, 20 Cal.Rptr. 112 (hearing in a contempt proceeding which was but a continuation of the original contempt matter after the order was upheld in habeas corpus proceeding); Haldane v. Haldane, 210 A.C.A. 659, 668, 26 Cal.Rptr. 670 (motion to modify divorce decree, and application for attorney's fees on appeal).


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