Weekly Law Resume - April 4, 2013: Civil Procedure – Peremptory Challenge Under CCP §170.6

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Entente Design, Inc., et al. v. Superior Court of San Diego County.
Court of Appeal, Fourth District (March 12, 2013)

Where a party believes that it cannot get a fair and impartial hearing or trial from the judge, commissioner or referee assigned to the case, California Code of Civil Procedure section 170.6 gives the party the right to disqualify him or her without having to show a reason. In this case, the Court of Appeal considered whether, when a matter was originally assigned to one judge who was unavailable, his assignment of the matter to a second judge constituted a “master calendar court assignment,” such that the challenge had to be made immediately.

This petition arises from a corporate dissolution action filed by a minority shareholder against a company and its majority shareholders. The case was originally assigned to Judge John S. Meyer for all purposes. On November 6, 2012, counsel attended a hearing and Judge Meyer granted a request to continue the start of trial by one day. The Judge advised counsel he would not be available on the new start date and would tell them at trial call on November 9, which trial judge would be assigned the case.

On November 9, counsel appeared before Judge Meyer and agreed to a bench trial. Judge Meyer informed counsel that Judge Vargas was available to try the case on November 14. Although defendants dispute this point, according to Judge Meyer both counsel indicated they had no problem with having the case assigned to Judge Vargas. Judge Meyer directed them to report to Judge Vargas's courtroom "forthwith." Counsel immediately reported to the courtroom and briefly consulted with Judge Vargas. Within an hour after leaving the courtroom, defense counsel filed a section 170.6 challenge to Judge Vargas. Judge Vargas denied the challenge as untimely. Defendants then filed this petition asserting the court improperly denied the challenge.

Section 170.6 permits a party to an action to disqualify summarily an assigned judge based on a sworn statement of the party's belief that the judge is prejudiced against that party or the party's attorneys. Provided the statement is timely and in proper form, the judge has no discretion to refuse the challenge. Generally, a section 170.6 challenge is permitted any time before the commencement of a trial or hearing. There are, however, three exceptions to the general rule: the all-purpose assignment rule, the 10-day/5-day rule, and the master calendar rule. People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171.

Under the all-purpose assignment rule, a section 170.6 challenge to a judge must be filed within 10 days for criminal cases, or within 15 days for civil cases, after notice of the judge's all-purpose assignment. Under the 10-day/5-day rule, a section 170.6 challenge to a judge who has not been assigned for all purposes must be filed at least five days before the trial date if the judge's identity is known more than 10 days before that date. Neither party contended these exceptions applied, but rather, that the master calendar rule applied.

Under the master calendar rule, a section 170.6 challenge must be filed no later than the time the case is assigned for trial. Here, whether the master calendar rule applied depended on whether Judge Meyer was managing a true master calendar when he assigned this case to Judge Vargas.

A judge manages a true master calendar when the judge assigns trial-ready cases to trial-ready courtrooms, for it is this circumstance that justifies the master calendar rule. When there is a trial judge ready and able to commence a trial, it is impracticable to allow litigants the time period permitted under the other rules to consider the advisability of making a section 170.6 challenge. By requiring litigants to make their challenges immediately upon assignment from the master calendar, the master calendar rule allows the judge in the master calendar courtroom to promptly utilize a challenged trial judge for another pending trial.

The Court of Appeal held that there was no true master calendar assignment because the case was not ready for immediate trial when Judge Myer assigned it to Judge Vargas. The trial was to commence no earlier than two court days after the assignment. Where cases are assigned to a trial judge for a future trial, the justification for the master calendar rule does not exist and the rule does not apply. The Court held that even if Judge Meyer was managing a true master calendar when he assigned this case to Judge Vargas, the master calendar rule does not apply unless the parties had advance notice Judge Meyer was acting as master calendar judge then. Because a master calendar judge and a judge assigned to a case for all purposes function differently, the parties would not have necessarily anticipated Judge Meyer was acting as a master calendar judge when he assigned the case to Judge Vargas. It would have been more reasonable for them to believe the transfer of the case to Judge Vargas was encompassed within Judge Meyer's all-purpose assignment duties. Under these circumstances, the Court issued a writ of mandate ordering the Superior Court to vacate its order denying the section 170.6 challenge.

COMMENT

This case explains the circumstances under which a section 170.6 challenge is timely. It also clears up confusion about what will be considered a timely challenge to a judicial assignment by an independent calendar court. Under the circumstances, the independent calendar court was not functioning as a master calendar court, so the challenge was timely.

For a copy of the complete decision see:

www.courts.ca.gov/opinions/documents/D062951.PDF