Grivi v. Superior Court (3 Cal. 2d 463, 1935)

THE COURT.

This is an application for writ of mandate by which it is sought to compel the respondent court to strike from its files—and in particular from the records of the case of McAdoo v. McAdoo—a document entitled “Report of Presiding Judge”. It appears that on July 17, 1934, a divorce complaint was filed in the respondent court by Mrs. McAdoo against her husband. On the same day an answer was filed by the defendant admitting all of the allegations, except those relating to extreme cruelty. He denied that any conduct on his part had caused the plaintiff any grevious or mental suffering. On the same day, the papers in the case were taken before Judge Campbell, of Kern County, sitting at the time, by assignment of the chairman of the Judicial Council, in Los Angeles, and, upon stipulation waiving notice of the time and place of trial, the case was tried by Judge Campbell, who granted Mrs. McAdoo an interlocutory decree.

Rule VIII of the Rules of the Superior Court, adopted by the Judicial Council, provides: “In all counties having a presiding judge, cases shall be set for trial under the supervision of the presiding judge.” (213 Cal. lxxxv.) Los Angeles is such a county. Rule XVI says: “In all counties having more than sixteen (16) judges, the presiding judge from time to time shall designate one or more departments as the department or departments in which a master calendar shall be set for the civil departments. Upon the calendar of such department or departments shall be set all civil cases to be tried during the period for which such calendar is set.” Rule III also provides in effect that the presiding judge shall supervise the setting for trial of all civil causes and Rule I says, among other things, that when a case is set for trial upon stipulation “the latter shall be accompanied by a corresponding memorandum”—i. e., a memorandum “which shall state that the cause is at issue, . . . the number and title of the cause, the nature of the cause, the time estimated for the trial thereof” and other pertinent information. Rule VII says: “Nothing in these rules shall prohibit setting for trial at any time, and in any department, any case which can be tried within a period of time not exceeding one hour.”

Under section 129 of the Code of Civil Procedure the court has authority to “make rules not inconsistent with the rules adopted and prescribed by the judicial council or the laws of this state for its own government and the government of its affairs.” We find in the rules of the Superior Court of Los Angeles, adopted pursuant to this section, certain provisions as follows: “The business of this court shall be supervised by one of the judges, to be known as the Presiding Judge. ...” (Rule I, see. 2.) “All civil actions and proceedings shall at the time of their filing be deemed assigned to the department of the Presiding Judge and shall be deemed pending in such department until assigned elsewhere ; ...” (Rule I, sec. 4) and “The Presiding Judge shall supervise the condition of the trial calendar of the court, including the master calendars, and shall readjust the assignment of causes at issue, at or before the time of trial thereof, in such manner as best to dispose of the business, ...” (Rule I, sec. 4.)

Following the trial of the divorce case mentioned the presiding judge made an investigation of the incidents leading up to the trial of the case on the same day the action was started and caused to be filed in the ease the document mentioned which reads as follows:

Report of Presiding Judge.

“My investigation into the case of McAdoo v. McAdoo has resulted in the following findings:

“On the day the case was filed, some woman telephoned my secretary and asked if there were any ‘out-of-county’ judges sitting here. Upon receiving an affirmative reply, she then asked if there was a Judge Campbell and where he was sitting and the location of his court room. Upon receiving the information requested, the woman hung up the telephone.

“The same day and before the trial, some one telephoned Judge Allan B. Campbell asking him if he would try a divorce case. He said he would, as he was ‘here to try cases’ and told the inquirer to bring in the case at either one-thirty or four-thirty p. m. The name of the ease was not disclosed.

“Judge Campbell was not familiar with the practice of this court, which requires that all default divorce cases be set through the calendar department, and he is therefore in no manner to blame for the irregular handling of this case. Judge Campbell comes from Bakersfield, where there are only three judges, and any one of them tries any default case as and when it is presented to him.

“In this court, however, the rule for handling default divorce cases is entirely different. They are, by the Calendar Department, sent in regular rotation to each of our judges except those in the criminal departments and those who have expressed a desire not to handle them. Only those attorneys who desire to ‘slip something over’ attempt to do otherwise.

“As presiding judge, I have on several occasions called back files from departments where the same irregularity was practiced or attempted to be practiced.

“That Mr. Grivi, Mrs. MeAdoo’s attorney was aware of our regular procedure is to me certain and beyond question. That his conduct in this case was irregular and subject to severe censure, is likewise beyond question.

“His actions in this case in violating the well-known method of procedure and in taking advantage of the lack of knowledge of a visiting judge, are contemptible, if not contumacious. He has the brazen effrontery to still assert this his conduct of the case has been regular in all respects.

“By his actions he has brought