Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Frank Gafkowski, Jr., Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), No. CIVDS917290
Pollak, Vida & Fisher, Michael M. Pollak and Anna L. Birenbaum for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
OPINION
MILLER, Acting P. J.
In this matter we have reviewed the petition and considered the record. Although we have invited real parties in interest to file an informal response, they have not done so. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Plaintiffs filed an action arising out of an automobile accident against petitioner Allstate Indemnity Company (Allstate) and others on December 3, 2009.
The case was assigned to Judge Frank Gafkowski in department S37 for all purposes. Notice of this case assignment was mailed by the superior court clerk on December 7, 2009.
On January 11, 2010, Allstate filed a peremptory challenge to Judge Gafkowski pursuant to Code of Civil Procedure section 170.6.
The trial court rejected the peremptory challenge on January 12, 2010, on the ground that it was untimely. Allstate’s counsel declares that when she asked the courtroom clerk for details, the clerk responded that the judge made the decision and, second, the challenge was filed more than 10 days after service of the complaint upon Allstate.
DISCUSSION
When a case has been assigned for all purposes to a judge, a party has 10 days from the date of his/her first appearance to file a peremptory challenge under Code of Civil Procedure section 170.6 or within 15 days in a fast track case. (Gov. Code, § 68616; La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500 (La Seigneurie).)
The trial court apparently believed that the 10-day period began on the date Allstate was served. This was error. The word appearance as it is used in Code of Civil Procedure section 170.6 means “general appearance.” (La Seigneurie, supra,29 Cal.App.4th at p. 1504.)
Allstate had not made any appearance in the case—general or special—prior to filing the challenge. The challenge was therefore timely.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to set aside its order denying Allstate’s motion for disqualification of Judge Frank Gafkowski and to issue a new order granting this motion.
Petitioner Allstate is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner Allstate is to bear its own costs.
We concur: HOLLENHORST, J., RICHLI, J.