Avital v. Superior Court

Citations: 114 Cal. App. 3d 297; 170 Cal. Rptr. 588; 1981 Cal. App. LEXIS 1279Docket: Civ. 60137

Court: California Court of Appeal; January 5, 1981; California; State Appellate Court

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A petition for writ of mandate was filed by Jehuda Avital to compel the Superior Court of Los Angeles County to grant a disqualification motion under Code of Civil Procedure section 170.6. Avital and co-defendant Joseph Zakaria faced serious criminal charges, including two murders and conspiracy offenses. Initially, Judge Leetham was disqualified by Zakaria, after which the case was reassigned to Judge Martin. Avital subsequently sought to disqualify Judge Martin, asserting that his interests were completely adverse to Zakaria's. Avital's counsel provided a sworn declaration outlining several points: Avital's claim of innocence, his agreement to testify against Zakaria, and the existence of facts indicating a conflict of interest. During a hearing, Avital's counsel argued that their positions were fundamentally opposed, and the court acknowledged the conflict but ultimately ordered Avital's disqualification motion to be stricken and the case transferred back to Department 111 for further proceedings. The court confirmed that section 170.6 allows a party to disqualify a judge based on a belief of prejudice affecting the fairness of the trial.

Subdivision (3) prohibits any party or attorney from making more than one motion under section 170.6 in a single action or special proceeding. When multiple plaintiffs or defendants are involved, each side is allowed only one motion. Supreme Court cases have addressed this one-per-side rule. In *Johnson v. Superior Court* (1958), the court clarified that multiple parties are not restricted to one motion if their interests are significantly conflicting. In such cases, it may be appropriate to recognize more than two sides. For example, in a case involving two drivers as defendants in a collision, each may have distinct interests. 

In *Pappa v. Superior Court* (1960), the court denied a defendant’s motion to disqualify a judge after establishing that her interests were not substantially adverse to her co-defendant's. The court noted that mere disagreements over procedural matters do not necessarily indicate substantially adverse interests. It emphasized the necessity for a clear demonstration of how the interests of co-defendants diverge. In the current case, a defendant's attorney articulated a scenario that exemplifies substantially adverse interests, where one defendant seeks to shift blame onto another, aligning with the precedent set in *Pappa*.

Petitioner’s interests are asserted to be substantially adverse to those of his codefendant, as indicated by Avital's attorney's declaration, which lacked detail. During oral arguments, the codefendant's position was characterized as denying personal involvement while implicating the co-defendant. The trial judge's remark about a "conflict of interest" was ambiguous, as "conflict" could refer to either a minor or a significant conflict. However, the record indicates that both the court and prosecutor understood the implications of counsel's statements regarding the nature of the conflict. Avital's attorney reasonably chose not to disclose detailed facts pretrial, instead offering to provide further information during an in camera hearing. The trial court's decision that no hearing was needed was clear and not arbitrary, indicating satisfaction with the existing information regarding the conflict. Consequently, the respondent court overstepped its jurisdiction by striking the motion. A writ of mandate is to be issued, requiring the respondent court to vacate its order from August 12, 1980, denying the motion to disqualify Judge Martin and to grant the motion instead. Judges Kingsley and Woods concurred.