Opinion
NOT TO BE PUBLISHED
Petition for writ of mandate, Los Angeles County Super. Ct. No. SD023958, David J. Cowan, Commissioner.
Damon A. Duval, in pro. per., for Petitioner.
No appearance for Respondent.
Law Offices of Roy L. Kight and Roy L. Kight, for Real Party in Interest.
DOI TODD, J.
Damon Anthony Duval, appearing in pro. per., appeals from the order denying his peremptory challenge to Commissioner David J. Cowan in this family law case. The challenge was denied on the basis that it was untimely. We treat the appeal as a petition for writ of mandate and deny the petition.
BACKGROUND
The parties stipulated that Commissioner Cowan would hear matters as judge pro tem in this case. The record does not disclose when this stipulation was made, but real party in interest Tammy LaDonna Williams asserts that this stipulation was entered on March 21, 2007, at a hearing over which Commissioner Cowan presided. The record discloses that from that time forward, Commissioner Cowan presided over numerous hearings in this case, on matters including orders to show cause re contempt for violating custody and visitation orders at which petitioner appeared and testified. The record also contains a judgment of dissolution signed by Commissioner Cowan on August 30, 2007.
On April 11, 2008, more than a year after Commissioner Cowan had begun presiding over this case, petitioner filed a peremptory challenge to Commissioner Cowan pursuant to Code of Civil Procedure section 170.6. That same day Commissioner Cowan denied the challenge as untimely. Three days later petitioner filed a notice of appeal, checking the box for order after judgment but failing to identify the date of any order. Shortly after filing his opening brief on appeal stating that he was appealing the denial of his peremptory challenge, petitioner filed a writ petition on December 22, 2008 challenging Commissioner Cowan’s denial of his request for a stay. The petition was summarily denied.
All statutory references shall be to the Code of Civil Procedure, unless otherwise noted.
DISCUSSION
Failure to File Writ Petition
As an initial matter, we note that section 170.3, subdivision (d) provides in relevant part: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court’s order determining the question of disqualification.” Although this section refers to a “judge,” this word is expressly defined to mean “judges of the superior courts, and court commissioners and referees.” (§ 170.5, subd. (a).) The rule that an order on a motion to disqualify is reviewable only by timely petition for writ of mandate applies whether the disqualification was sought for cause (§ 170.3) or by peremptory challenge (§ 170.6). (People v. Hull (1991) 1 Cal.4th 266, 273–274; In re Sheila B. (1993) 19 Cal.App.4th 187, 193–195; Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1159.)
Petitioner did not file a writ petition from the denial of his peremptory challenge. Nevertheless, we have discretion to treat an appeal from a nonappealable order as a petition for writ of mandate. Ordinarily that discretion should be exercised only in extraordinary circumstances. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1349; Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698.) We would normally be inclined to find that no extraordinary circumstances exist here. But in light of the facts that both parties have failed to address the issue of whether the appeal should be dismissed pursuant to section 170.3, subdivision (d) and have briefed the appeal on the merits, we exercise our discretion to treat the appeal as a writ petition, in the interest of conserving judicial economy.
No Abuse of Discretion
We review a trial court’s ruling on a peremptory challenge for abuse of discretion. (Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098.) We find no abuse of discretion here.
Section 170.6, subdivision (a)(2) sets forth the time limits for making a peremptory challenge. The statute provides in relevant part: “Where the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. If directed to the trial of a cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance.... The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding, or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner here in before provided.” (§ 170.6, subd. (a)(2).)
Petitioner’s filing of a peremptory challenge more than a year after the parties stipulated to Commissioner Cowan hearing matters in this case was clearly untimely. Petitioner does not suggest, nor could he, that the matters over which Commissioner Cowan presided did not involve contested issues of fact. Rather, petitioner suggests that his challenge was timely filed under section 170.3, subdivision (c)(1), which allows a party to file a statement of disqualification “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” But that section applies only to motions for disqualification made for cause. In this case, petitioner made a peremptory challenge under section 170.6, which has very specific deadlines.
The two cases cited by petitioner do not assist him. In Schorr v. Superior Court (1980) 105 Cal.App.3d 568, the court held that a peremptory challenge pursuant to section 170.6 was untimely when made at the conclusion of a hearing on orders to show cause, though the party’s motion for cause under former section 170 was timely. And in Mayr v. Superior Court (1964) 228 Cal.App.2d 60, 64 the court held that a party had no obligation to move for disqualification under section 170.6 until the matter involved a contested issue of fact. The Mayr court also stated: “The purpose of the rule requiring timeliness of motion is obvious. The statutory allowance to a party or his attorney of the right to disqualify a judge, ‘automatic’ in the sense that a ‘belief’ in prejudice is sufficient, is an extraordinary right. The Legislature did not intend thereby to permit the halting of already-commenced hearings and trials to be reheard before a new judge whenever one of the parties senses or thinks that he senses that the judge has become unfavorably disposed towards his cause. That the Legislature did not so intend is explicit in the requirement of motion before the commencement of hearing and in the provision relating to motions before trial that they be made at least five days before trial.” (Mayr v. Superior Court, supra, at p. 63.)
DISPOSITION
The petition for writ of mandate is denied.
We concur: BOREN, P. J., CHAVEZ, J.