Spector v. Superior Court, 361 P.2d 909 (Cal. 1961). · Go Syfert
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Spector v. Superior Court, 361 P.2d 909 (Cal. 1961). Cases Citing This Book View Copy Cite
143 citation events (37 in the last 25 years) across 4 distinct courts.
Strongest positive: Marriage of Ciliberto and Firth CA2/7 (calctapp, 2016-01-19)
Treatment trajectory · 1962 → 2026 · click a year to view as-of
1962 1994 2026
Top citers, strongest first. 35 distinct citers.
discussed Cited as authority (rule) Marriage of Ciliberto and Firth CA2/7
Cal. Ct. App. · 2016 · confidence medium
(See Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [“[i]t is a cardinal principle of our jurisprudence that a party should not be bound or concluded by a judgment unless he has had his day in court”]; In re Marriage of Ramirez (2011) 198 Cal.App.4th 336, 344-345 [order vacating FLARPL was void because court cannot extinguish a FLARPL without joining the attorney to protect his or her lien interests]; Knowles v. Tehachapi Valley Hospital Dist. (1996) 49 Cal.App.4th 1083, 1091 [“respondent was not a ‘party’ to the stipulated judgment, and was not bound by the determinations there…
discussed Cited as authority (rule) Conservatorship of David L.
Cal. Ct. App. · 2008 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ ” (Marsden, supra, at pp. 123-124 , quoting Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) Because the reasoning expressed in Marsden is equally applicable to LPS conservatorship proceedings, we conclude that the trial court must afford a prospective conservatee a full opportunity to state the reasons for requesting substitute counsel in accordance with Marsden…
discussed Cited as authority (rule) In Re Marriage of Carlsson
Cal. Ct. App. · 2008 · confidence medium
It amountfs] to a deprival of a substantial statutory right ...” (Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ] (Spector).) “Only judge when you have heard all.” — Greek proverb.
discussed Cited as authority (rule) Bricker v. Superior Court
Cal. Ct. App. · 2005 · confidence medium
It amount[s] to a deprival of a substantial statutory right . . . .” (Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) California Rules of Court, rule 155, which deals with the dismissal of small claims appeals, does not contemplate the procedure followed by the superior court in this matter. 3 In Moore v. California Minerals etc. Corp. (1953) 115 Cal.App.2d 834 [ 252 P.2d 1005 ], following tire parties’ opening statements at trial, the trial judge essentially granted an unnoticed motion for judgment on the pleadings.
discussed Cited as authority (rule) People v. Dickey
Cal. · 2005 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].)’ (Marsden, supra, 2 Cal.3d at p. 124.)” (People v. Jones (2003) 29 Cal.4th 1229, 1244 [ 131 Cal.Rptr.2d 468 , 64 P.3d 762 ].) “A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in…
discussed Cited as authority (rule) People v. Braxton
Cal. · 2004 · confidence medium
(See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 197 [ 96 Cal.Rptr.2d 463 , 999 P.2d 686 ]; People v. Flood (1998) 18 Cal.4th 470, 488 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ]; People v. Cahill, supra, 5 Cal.4th at p. 495, fn. 11; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70 [ 2 Cal.Rptr.2d 389 , 820 P.2d 613 ]; People v. Succop (1967) 67 Cal.2d 785, 790 [ 63 Cal.Rptr. 569 , 433 P.2d 473 ]; People v. Modesto (1963) 59 Cal.2d 722, 730 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ]; Spector v. Superior Court (1961) 55 Cal.2d 839, 844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) On further co…
discussed Cited as authority (rule) People v. Jones
Cal. · 2003 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].)” (Marsden, supra, 2 Cal.3d at p. 124 .) A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.
discussed Cited as authority (rule) People v. Earp
Cal. · 1999 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].)” (People v. Marsden, supra, 2 Cal.3d at p. 124 .) A defendant is entitled to have appointed counsel discharged upon a showing that counsel “ ‘ “is not providing adequate representation” ’ ” or that counsel and defendant “ ‘ “have become embroiled in such an irreconcilable conflict that ineffectiv…
discussed Cited as authority (rule) Meller & Snyder v. R & T PROPERTIES, INC.
Cal. Ct. App. · 1998 · confidence medium
(Cf. Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ] [refusal to permit petitioner to present any evidence or argument in support of motion for order modifying preliminary injunction]; Fewel v. Fewel (1943) 23 Cal.2d 431, 433 [ 144 P.2d 592 ] [plaintiff denied right to produce evidence and precluded from cross-examining adverse witnesses]; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677 [ 56 Cal.Rptr.2d 803 ] [plaintiffs prevented from offering evidence to establish their case]; Estate of Buchman (1954) 123 Cal.App.2d 546, 560 [ 267 …
discussed Cited as authority (rule) Beverly Hills Multispecialty Group, Inc. v. Workers' Compensation Appeals Board
Cal. Ct. App. · 1994 · confidence medium
(See Dvorin v. Appellate Dept. (1975) 15 Cal.3d 648, 651 [ 125 Cal.Rptr. 771 , 542 P.2d 1363 ] [summary judgment ordered without motion]; Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ] [judge refused to allow party to present any evidence or argument]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 364, p. 366.) Because BHMG was denied due process by the failure to serve the defense medical reports, BHMG was denied a fair trial.
discussed Cited as authority (rule) San Diego County Department of Social Services v. Agatha B.
Cal. Ct. App. · 1993 · confidence medium
While an analysis of prejudice would often be called for when considering the effect of an inappropriate waiver of procedural rights, we believe no such analysis is required where, as here, the right to a hearing itself has been abandoned by the guardian ad litem (see Spector v. Superior Court (1961) 55 Cal.2d 839, 844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ]).
discussed Cited as authority (rule) In Re Christina B.
Cal. Ct. App. · 1993 · confidence medium
Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit. (3b) While an analysis of prejudice would often be called for when considering the effect of an inappropriate waiver of procedural rights, we believe no such analysis is required where, as here, the right to a hearing itself has been abandoned by the guardian ad litem (see Spector v. Superior Court (1961) 55 Cal.2d 839, 844 [ 13 Cal. Rptr. 189 , 361 P.2d 909 ]).
discussed Cited as authority (rule) In Re Marriage of O'Connell
Cal. Ct. App. · 1992 · confidence medium
(Moore v. California Minerals etc. Corp. (1953) 115 Cal.App.2d 834, 836-837 [ 252 P.2d 1005 ]; cf. In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1168-1171 [ 208 Cal.Rptr. 345 ]; Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ]; Gov.
discussed Cited as authority (rule) Gutzi Associates v. Switzer
Cal. Ct. App. · 1989 · confidence medium
(See Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) During a hearing, however, the trial judge signaled his intention to address the issue in an amended memorandum of decision, indicating at the same time that his initial decision in favor of the Switzers, issued almost two months earlier, would not change.
discussed Cited as authority (rule) Williams v. State
Md. Ct. Spec. App. · 1989 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention "is lacking in all the attributes of a judicial determination.” (Spector v. Superior Court, 55 Cal.2d 839, 843 , 13 Cal.Rptr. 189, 192 , 361 P.2d 909, 912 (1961)).
discussed Cited as authority (rule) Bouchard v. Insona
Cal. Ct. App. · 1980 · confidence medium
In holding that the noticed date was not too late for challenging the judge regularly assigned to the law and motion department, the court, after quoting the language of Eagle Maintenance set out above, observed that “. . . there was a distinct possibility that [the regularly assigned judge]. . . would not be presiding over the matter at the subsequent date agreed upon, either because of his absence from the court or because the matter might be transferred to another, department.” 2 (Id., at p. 395.) Similarly, in Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361…
discussed Cited as authority (rule) People v. Wright
Cal. Ct. App. · 1977 · confidence medium
Munoz thus considered the trial court’s action as “tantamount to a refusal on the part of the court to adjudicate a fundamental issue. . . .” ( Munoz, supra, 41 Cal.App.3d 62, 66 .) The failure of the trial judge in Munoz to make careful inquiry into the reasons advanced by defendant and in simply listening to the defendant’s complaints made the trial court’s ruling “lacking in all the attributes of a judicial determination.” (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) But, in the instant case, the court accepted defendant’s reques…
discussed Cited as authority (rule) LA CTY. DEPT. OF PUB. SOC. SERV. v. Superior Ct.
Cal. Ct. App. · 1977 · confidence medium
Cases may be transferred at any time before the regular time fixed for adjournment. "`.... .... .... .... ...'" [6] Rule 245(a)(1), entitled Distribution of Business — in General, provides in pertinent part: "All cases, except those under the Juvenile Court Law and Conciliation Court Law, shall on filing be assigned automatically to the department of the presiding judge; ..." (Italics added.) [7] It appears that even before this amendment, the request for a transfer would not have barred a subsequent disqualification motion since in Spector v. Superior Court, 55 Cal.2d 839, 842-843 [ 13 Cal. …
discussed Cited as authority (rule) L.A. Cty. Dep't of Pub. Soc. Servs. v. Superior Court of L.A. Cty.
Cal. Ct. App. · 1977 · confidence medium
Rule 245(a)(1), entitled Distribution of Business—in General, provides in pertinent part: “All cases, except those under the Juvenile Court Law and Conciliation Court Law, shall on filing be assigned automatically to the department of the presiding judge; ...” (Italics added.) It appears that even before this amendment, the request for a transfer would not have barred a subsequent disqualification motion since in Spector v. Superior Court, 55 Cal.2d 839, 842-843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ], our Supreme Court upheld the timeliness of such a motion where the facts disclosed that pe…
discussed Cited as authority (rule) In Re Olson
Cal. Ct. App. · 1974 · confidence medium
(See Randone v. Appellate Department, 5 Cal.3d 536, 547 [ 96 Cal.Rptr. 709 , 488 P.2d 13 ] [cert, den., 407 U.S. 924 ( 32 L.Ed.2d 811 , 92 S.Ct. 2452 )]; People v. Marsden, 2 Cal.3d 118, 124-125 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ]; Spector v. Superior Court, 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ]; In re La Opinion, 10 Cal.App.3d 1012, 1019 [ 89 Cal.Rptr. 404 ].) We observe, however, that even if it be assumed that there was invalidity in the August 18 order for failure to give notice to respondents, this appeal is unaffected by any such invalidity.
discussed Cited as authority (rule) In Re Miller
Cal. Ct. App. · 1973 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) “Further support for the defendant’s contention that it was error to deny his motion without an opportunity for explanation comes from the line of authority beginning with People v. Youders (1950) 96 Cal.App.2d 562, 569 [ 215 P.2d 743 ].
discussed Cited as authority (rule) People v. Jacobs (2×)
Cal. Ct. App. · 1972 · confidence medium
(See People v. Marsden, supra, 2 Cal.3d 118, 124 ; Spector v. Superior Court, 55 Cal.2d 839, 843 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) The record before us discloses that the judge below requested both parties to file affidavits and that at the hearing on the motion he specifically asked defendant if he had anything further to add in support of his motion.
discussed Cited as authority (rule) People v. Marsden (2×)
Cal. · 1970 · confidence medium
A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention "is lacking in all the attributes of a judicial determination." ( Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [ 13 Cal. Rptr. 189 , 361 P.2d 909 ].) (1b) The People contend that there was no need to hear the defendant's examples of misconduct because he had limited the scope of his motion to the record before the court when he stated, "I think the transcript, court's transcript prior to this meeting here can reveal that fact." The People thus presume the defendant…
discussed Cited as authority (rule) People v. Succop
Cal. · 1967 · confidence medium
(Cf. Spector v. Superior Court, 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ] ; People v. Sarazzawski, 27 Cal.2d 7, 18 [ 161 P.2d 934 ].) The order committing defendant to Atascadero State Hospital for a period not to exceed 90 days and the order denying probation are vacated.
discussed Cited as authority (rule) In re Burhans
Cal. · 1966 · confidence medium
(See Spector v. Superior Court, 55 Cal.2d 839, 843 [3] [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) In the present case, a petition was filed March 25, 1966, by petitioner’s wife under section 5551 of the Welfare and Institutions Code to have him committed by court order to a state hospital for the mentally ill.
discussed Cited as authority (rule) People v. Wilson (2×)
Cal. · 1963 · confidence medium
People v. Brommel, 56 Cal.2d 629, 634 [ 15 Cal. Rptr. 909 , 364 P.2d 845 ], held that, "... the admission of involuntary confessions compels a reversal, and section 4 1/2, article VI, of the Constitution can under no circumstances save the judgment." (See also People v. Trout, 54 Cal.2d 576 [ 6 Cal. Rptr. 759 , 354 P.2d 231 ].) In Spector v. Superior Court, 55 Cal.2d 839, 844 [ 13 Cal. Rptr. 189 , 361 P.2d 909 ], it was held that the refusal of the trial judge to permit the presentation of evidence or the making of an argument in support of a motion amounts "... to a deprival of a substantial …
discussed Cited as authority (rule) Thompson v. Superior Court
Cal. Ct. App. · 1962 · confidence medium
In People v. Smith, *707 196 Cal.App.2d 854 , 859 2 [ 17 Cal.Rptr. 330 ], the court states: “We construe it to be the intent of the Legislature that where a litigant has not previously exercised his privilege under 170.6 he may do so in a proceeding supplemental to the original action as to a judge other than any judge who has previously heard any phase of the matter, provided that he does so before the commencement of the hearing of the supplemental proceedings by such judge and within the time limitations specified in the section.” (See also Spector v. Superior Court, 55 Cal.2d 839, 843 …
discussed Cited as authority (rule) Callahan v. Chatsworth Park, Inc.
Cal. Ct. App. · 1962 · confidence medium
(See Spector v. Superior Court, 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ]; People v. Elliot, 54 Cal.2d 498, 506 [ 6 Cal.Rptr. 753 , 354 P.2d 225 ] ; People v. Sarazzawski, 27 Cal.2d 7, 11 [ 161 P.2d 934 ].) Judgment reversed.
discussed Cited as authority (rule) McCarthy v. Mobile Cranes, Inc.
Cal. Ct. App. · 1962 · confidence medium
(Spector v. Superior Court, 55 Cal.2d 839, 843-844 [ 13 Cal.Rptr. 189 , 361 *510 P.2d 909]; People v. Elliot, 54 Cal.2d 498, 506 [ 6 Cal.Rptr. 753 , 354 P.2d 225 ]; 3 Witkin, California Procedure, § 112, p. 2285.) Judgment reversed.
discussed Cited "see" In re Daryan H. CA4/1
Cal. Ct. App. · 2023 · signal: see · confidence high
“A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination’ ” and constitutes an abuse of the 31 court’s discretion.4 (People v. Marsden (1970) 2 Cal.3d 118, 124 ; see Spector v. Superior Court of San Mateo County (1961) 55 Cal.2d 839 , 843‒844 [an order entered by a judge without affording the party to be bound with an opportunity “to be heard and to offer evidence” “is lacking in all the attributes of a judicial determination”].) Second, the vide…
discussed Cited "see" Midway Venture LLC v. County of San Diego
Cal. Ct. App. · 2021 · signal: accord · confidence high
“It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 .) “ ‘In a contested proceeding, no court may render judgment without conforming to the constitutional guarantees which afford due process of law. [Citation.] Due process requires that all parties be notified of the facts and issues in dispute, that each party be afforded a fair opportunity to present evidence in open court, and that judgment be rendered based on an evalua…
discussed Cited "see" Midway Venture LLC v. County of San Diego
Cal. Ct. App. · 2021 · signal: accord · confidence high
“It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 .) “ ‘In a contested proceeding, no court may render judgment without conforming to the constitutional guarantees which afford due process of law. [Citation.] Due process requires that all parties be notified of the facts and issues in dispute, that each party be afforded a fair opportunity to present evidence in open court, and that judgment be rendered based on an evalua…
discussed Cited "see" Marriage of Sample CA3
Cal. Ct. App. · 2014 · signal: see · confidence high
(Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677 ; see Spector v. Superior Court (1961) 55 Cal.2d 839, 843, 844 .)” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357 , italics omitted.) When mother appeared for the hearing on April 11, 2011, Ms. Huddle made it clear to the trial court that she was not prepared to put on evidence and she believed the hearing was simply a continued short cause hearing.
examined Cited "see" Elkins v. Superior Court (6×)
Cal. · 2007 · signal: see · confidence high
(Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677 [ 56 Cal.Rptr.2d 803 ]; see Spector v. Superior Court (1961) 55 Cal.2d 839, 843, 844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) As stated by an appellate court in 1943 with reference to a trial court’s refusal to permit a witness to testify in a marital dissolution matter: “We are fully cognizant of the press of business presented to the judge who presides over the Domestic Relations Department of the Superior Court . . . , and highly commend his efforts to expedite the handling of matters which come before him.
examined Cited "see" Dvorin v. Appellate Department (3×)
Cal. · 1975 · signal: see · confidence high
(Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 610 [ 22 Cal.Rptr. 606 ]; see Spector v. Superior Court (1961) 55 Cal.2d 839, 844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ].) Defendant next contends the appellate department’s construction of the promissory note was erroneous.
DAVID S. SPECTOR, Petitioner,
v.
SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE INSTITUTE OF MEDICAL PHYSICS (A Nonprofit Corporation) Et Al., Real Parties in Interest
S. F. 20644.
California Supreme Court.
May 22, 1961.
361 P.2d 909
Moerdyke, Anderson, Evans & Rhodes and Stanley R. Evans for Petitioner., No appearance for Respondent., Rosellini, Vallerga & Mitchell and James M. Mitchell for Real Parties in Interest.
McCOMB.
Cited by 54 opinions  |  Published
McCOMB, J.

— Petitioner is a director, a member, and the Executive Director of The Institute of Medical Physics, a nonprofit California corporation (hereinafter referred to as “the corporation”). He seeks (1) a writ of mandate to restrain the Honorable Aylett R. Cotton, Judge of the Superior Court of San Mateo County, from proceeding further with judicial dissolution of the corporation, and (2) a writ of mandate directing the vacation of an order denying petitioner’s motion to modify a preliminary injunction allowing such dissolution.

Chronology

(1) September 27, 1960, petitioner filed a complaint on behalf of the corporation in the San Mateo Superior Court, proceeding No. 91313.

It was alleged that the four named defendants, also directors of the corporation, had been guilty of breach of trust in[*841] diverting corporate funds for their personal gain, or for the benefit of organizations in which they were personally interested, and in stating their desire to dissolve the corporation and distribute the assets to themselves as individuals. The prayer of the complaint requested that defendants be removed as directors and be required to reimburse the corporation for such illegally diverted funds. It also requested a preliminary injunction pendente lite restraining defendants from taking any action as directors.

(2) October 11, 1960, after a hearing, Judge Wayne E. Millington, of the San Mateo Superior Court, granted a preliminary injunction restraining defendants from performing any acts as directors (including the filing of a petition for dissolution of the corporation) other than those required to carry on the routine daily business of the corporation, and appointed a temporary receiver to supervise such business.

(3) October 24, 1960, defendants filed, without notice to petitioner, in the Superior Court of San Mateo County, a petition for dissolution of the corporation, proceeding No. 91688, and on the same date filed a motion in proceeding No. 91313 for an order vacating the preliminary injunction of October 11, 1960.

(4) October 31, 1960, Judge Cotton heard and denied defendants’ motion to vacate the preliminary injunction.

(5) November 16, 1960, the receiver petitioned the court for instructions because of the conflict between the terms of the preliminary injunction and the steps taken by defendants toward dissolving the corporation.

(6) November 25, 1960, following a hearing, Judge Milling-ton made an order providing that the receiver 11 shall continue to supervise the conduct of the business [of the corporation] ... in the manner provided for” in the preliminary injunction.

(7) November 29, 1960, defendants filed a notice of motion for modification of the preliminary injunction.

(8) December 8, 1960, Judge Cotton heard defendants’ motion filed November 29, 1960, and modified the preliminary injunction to allow them to proceed with a dissolution of the corporation.

(9) December 14,1960, an order to show cause was issued in proceeding No. 91688 directing petitioner to show why the corporation should not be dissolved.

(10) December 16, 1960, petitioner moved in proceeding No. 91313 for an order modifying the preliminary injunction (as modified by the order of December 8. 1960) to restrain[*842] defendants from dissolving the corporation and to require them to rescind steps already taken toward dissolution. The motion was accompanied by affidavits of petitioner and his counsel setting out (a) the fact that the corporation has an annual budget of $150,000 and is solvent and (b) a detailed list of the services and outstanding legal and ethical obligations of the corporation to its many public and private clients in medical research and related disciplines. No counteraffidavits were filed.

(11) December 21,1960, the motion filed December 16,1960, in proceeding No. 91313 and the order to show cause in proceeding No. 91688 were called at the same time on the law and motion calendar, with Judge Cotton presiding.

Counsel for petitioner immediately requested that both matters be heard by Judge Millington (who was available), because the latter had issued the original injunction and had instructed the receiver and therefore “was familiar with the background of the litigation.” Judge Cotton denied the request and ruled that he would hear the matters.

Petitioner’s counsel then promptly filed an affidavit of bias and prejudice as to each of the matters, requesting that Judge Cotton disqualify himself. Judge Cotton denied petitioner’s request, on the ground that the affidavits of disqualification were filed “too late.”

After a brief hearing, Judge Cotton made an order declaring the corporation dissolved and appointing a receiver, and an order denying petitioner’s motion to modify the preliminary injunction.

(12) January 1, 1961, Judge Cotton retired from the Superior Court of San Mateo County.

These are the questions necessary for us to determine:

First. Should Judge Cotton have disqualified himself under the provisions of section 170.6 of the Code of Civil Procedure when petitioner’s counsel filed the affidavits of bias and prejudice against him ?

Yes. He should have disqualified himself in proceeding No. 91688.

Section 170.6 of the Code of Civil Procedure provides that no judge of any superior court of the State of California shall try any civil action or special proceeding of any kind or character, nor hear any matter therein which involves a contested issue of law or fact, when any party or any attorney anpearing in such action or proceeding establishes prejudice by an oral or written motion, without notice, supported by an[*843] affidavit that the judge before whom such action or proceeding is pending is prejudiced against such party, or the interest of such party, so that such party cannot, or believes that he cannot, have a fair and impartial trial or hearing before such judge.

Where the judge assigned to, or who is scheduled to try the cause or hear the matter, is known at least ten days before the date set for trial or hearing, the motion shall be made at least five days before that date.

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.

Applying the foregoing rules to the facts of the present case, it appears that petitioner’s counsel, as soon as he knew that Judge Cotton was going to hear the matters before him, filed an affidavit of bias and prejudice against Judge Cotton as to each of the matters, requesting that he disqualify himself. The record shows that petitioner’s motion was made “at the commencement of the hearing on December 21, 1960,” and that petitioner did not know prior to such date that Judge Cotton intended to hear these matters.

Since the December 21, 1960, hearing was the first court hearing in proceeding No. 91688, it is clear that Judge Cotton was disqualified from taking further action in that proceeding and should have disqualified himself. (Cf. Johnson v. Superior Court, 50 Cal.2d 693 [329 P.2d 5].)

Second. In proceeding No. 91313 was petitioner deprived of his day in court?

Yes. On December 21, 1960, when petitioner’s motion for an order modifying the preliminary injunction came on for hearing, Judge Cotton refused to permit counsel for petitioner to present any evidence or argument in support of his client’s position.

It is a cardinal principle of our jurisprudence that a party should not be bound or concluded by a judgment unless he has had his day in court. This means that a party must be duly cited to appear and afforded an opportunity to be heard and to offer evidence at such hearing in support of his contentions.

His right to a hearing does not depend upon the will, caprice or discretion of the trial judge who is to make a decision upon the issues.

An order or judgment without such an opportunity is lacking in all the attributes of a judicial determination. (Mc- [*844] Clatchy v. Superior Court, 119 Cal. 413, 418, 421 [51 P. 696, 39 L.R.A. 691]; Collins v. Superior Court, 145 Cal.App.2d 588, 594 [4] [302 P.2d 805]; Estate of Buchman, 123 Cal.App. 2d 546, 554 [5], 560 [267 P.2d 73, 47 A.L.R.2d 291] [hearing denied by the Supreme Court].)

Refusal to permit counsel for petitioner to present evidence and make a reasonable argument in support of his client’s position was not a mere error in procedure. It amounted to a deprival of a substantial statutory right and is not covered by article VI, section 4%, of the Constitution. (People v. Sarazzawski, 27 Cal.2d 7, 17 [13] et seq. [161 P.2d 934].)

It would appear that the two actions here involved present essentially the same, or overlapping, issues and therefore should be consolidated and disposed of as a single proceeding.

Let a writ of mandate issue directing respondent court (1) to vacate its order of December 21, 1960, dissolving the corporation in proceeding No. 91688 and (2) to set aside the order denying petitioner’s motion in proceeding No. 91313, and requiring respondent court to grant petitioner a hearing on said motion.

Gibson, C. J., Traynor, J., Schauer, J., Peters, J., White, J., and Dooling, J., concurred.