Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03FL04248
SIMS, Acting P.J.David D. Pebley appeals from the denial of his motion to set aside as void a post-judgment “findings and order after hearing” that was signed by a judge who had been disqualified under Code of Civil Procedure section 170.6, but which merely formalized a ruling previously made by another judge who had not been disqualified.
Undesignated statutory references are to the Code of Civil Procedure.
Finding no prejudicial error, we shall affirm the order.
BACKGROUND
Karen and David married in 1998. After they separated in 2003, Karen petitioned for dissolution.
Karen and David signed a marital settlement agreement on August 4, 2003, in which they divided their community debts and marital property (including various parcels of real property) and confirmed their respective interests in separate property items. As relevant to subsequent events, the agreement contains David’s acknowledgment that the court has jurisdiction over him. It also states:
(1) The agreement was negotiated and prepared by Karen’s counsel, representing her alone; Karen’s counsel did not advise or represent David and, despite advice to seek independent counsel, he chose to represent himself;
(2) The parties intended to divide their property equally, expressly waiving any actual inequality; and
(3) Either party may obtain a judgment of dissolution without further notice to the other.
The agreement was approved by the family court, and incorporated into the judgment of dissolution entered on November 4, 2003.
After the judgment was entered, David hired a lawyer and began to assert that the parties’ property division did not consider his right to separate property reimbursement from an inheritance of $243,000.
The Motion to Set Aside the Dissolution Judgment
In July 2004, David moved to “set aside [the] default and default judgment” on the grounds of “extrinsic fraud or mistake.” In support of his motion, David averred he was recovering from alcoholism when he signed the marital settlement agreement and “was mentally unprepared to properly read, analyze and, request modification to the document.” As a result, he had not realized Karen’s counsel did not represent them both. Based on statements by Karen’s counsel, David believed no judgment could be entered on the agreement until after he submitted certain financial disclosure documents, so he “did not urgently seek an attorney” to review Karen’s financial disclosure documents. Finally, David averred he learned for the first time that “a default judgment had already been taken against [him]” after he retained a lawyer.
While David’s motion to set aside the dissolution judgment was pending, Karen filed a preemptory challenge to Judge James Mize. (§ 170.6).
David’s motion to set aside the default and default judgment was heard on October 13, 2004, by Judge John Winn, who denied it. The minute order of the motion proceedings states “THESE ORDERS ARE EFFECTIVE FORTHWITH AND ARE NOT CONDITIONAL ON ENTRY OF A FORMAL ORDER.” However, it also directed Karen’s counsel to prepare a formal order for the court’s signature.
A form “findings and order after hearing,” prepared by Karen’s counsel, was filed November 22, 2004. It states that the hearing was conducted by Judge Winn, but it bears the signature stamp of Judge Mize.
David filed a notice of appeal from Judge Winn’s October 13, 2004, order on February 9, 2005. This court dismissed the appeal as untimely.
Karen asks us to take judicial notice of the appellate record of David’s prior dismissed appeal, our case number C049040. (Evid. Code, §§ 452, subd. (d), 459.) We decline to take judicial notice of this record as it is not necessary to our resolution of the case. (Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 128, fn. 2.)
Current Proceedings: Motion to Vacate Judge Mize’s Order as Void
David then moved to vacate the November 22, 2004, order signed by Judge Mize, on the ground any order by Judge Mize signed after he was disqualified is void as a matter of law.
His motion was denied. The trial court (by Judge Hight) found that Judge Mize, though disqualified, had neither heard nor decided David’s motion to set aside the judgment; rather, the order after hearing signed by Judge Mize “reflected the ruling of Judge John Winn at the hearing held on October 13, 2004, in which Judge Winn denied [David]’s request to set aside” the judgment and which, by its own terms, “expressly stated that the order was to be ‘effective forthwith’ and ‘not conditional on entry of a formal order.’” Accordingly, the court reasoned, “the subsequent formal order signed by Judge Mize did nothing more than memorialize the language of the order that took effect on October 13, 2004, ” and “no further legal purpose would be served” by voiding Judge Mize’s order.
The court also noted that, in his first appeal, David sought review from Judge Winn’s minute order, not the subsequent formal order by Judge Mize.
Accordingly, the trial court concluded it “need not determine” whether Judge Mize’s order was void or voidable.
It is from this ruling that David now appeals.
DISCUSSION
Section 170.6 permits a party to an action to peremptorily disqualify a judge for prejudice based on a sworn statement, without having to establish the prejudice as a fact. (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4; see generally Curle v. Superior Court (2001) 24 Cal.4th 1057, 1070-1071.) Subdivision (a)(1) of that section states in part: “No judge . . . shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it shall be established as hereinafter provided that the judge . . . is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action or proceeding.” (§ 170.6, subd. (a)(1).) Subdivision (a)(3) similarly provides in part that, once a proper motion and declaration have been made, “the judge supervising the master calendar, if any, shall assign some other judge . . . to try the cause or hear the matter.” (§ 170.6, subd. (3).)
“‘[S]ection 170.6 should be liberally construed with a view to effect its objectives and to promote justice.’” (People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 698, quoting Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, 683.)
Although the record contains no order to that effect, there appears to be no dispute that Judge Mize was properly disqualified in this case.
But the trial court (by Judge Hight) found that “[t]he language in the formal order [signed by Judge Mize] reflected the ruling of Judge John Winn at the haring held on October 13, 2004, in which Judge Winn denied [David]’s request to set aside the default in the action. . . . [¶] As a matter of record, Judge Mize did not hear or decide [David]’s request to set aside on October 13, 2004. Judge Mize did sign the order dated November 22, 2004. [¶] While [David] contends that that November 22, 2004 order is void and should be replaced by another order, [David] presumes that the ruling of Judge Winn was not in effect as an enforceable court order as of October 13, 2004. The court record shows that Judge Winn’s ruling was set forth in detail and entered in writing into the court minutes on October 13, 2004, and as such, is denominated an order under Code of Civil Procedure § 1003 (In re Marcus (2004) 138 Cal.App.4th 1009, 1015-1016; see In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170, the trial court’s oral ruling on a motion does not become effective until it is filed in writing with the clerk or entered in the minutes.) It is also noted that even though one part of the written minutes of October 13, 2004, directed counsel for [Karen] to prepare a formal order, another part expressly stated that the order was to be ‘effective forthwith’ and ‘not conditional on entry of a formal order.’ Thus, the subsequent formal order signed by Judge Mize did nothing more than memorialize the language of the order that took effect on October 13, 2004. At this present time no further legal purpose would be served to carry out the order of Judge Winn if the court voids Judge Mize’s order and enters another formal order this [sic] is signed either by Judge Winn or another judge pursuant to Code of Civil Procedure section 635.” (Some paragraph breaks omitted.)
The trial court got it right. A trial court’s oral ruling on a motion is effective if it is filed in writing with the clerk or entered in the minutes. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.) Here, Judge Winn’s order denying David’s motion was entered in the court’s minutes, and expressly made effective immediately, and not conditional on entry of a subsequent formal order.
Ordinarily, of course, if a trial court’s minute order expressly indicates that a written order will be filed thereafter, the subsequent written order is the effective one. (See 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 50, pp. 74-75; Cal. Rules of Court, rule 8.104(d)(2)(former rule 2(b).) This rule developed to “do away with the old rule, which was to the effect that whether a minute entry was final or not frequently depended upon whether the judge who ordered it made intended to follow it with a formal order. If he did, the minute entry was not final; if he did not, it was. As this intention did not have to be expressed in the minutes, a litigant was always in a quandary to determine whether to appeal from the minute entry or to wait and see if a formal order were filed, and then to appeal from the latter.” (Hirschberg v. Oser (1947) 82 Cal.App.2d 282, 286.)
But here, David was in no such quandary. He cannot have been mistaken as to whether Judge Winn’s minute order denied his motion to set aside the default and default judgment, “effective forthwith” and “not conditional on entry of a formal order.” In fact, he acknowledged that Judge Winn’s October 13 minute order constituted an appealable order, when he sought appellate relief from it in this court (though his notice of appeal was untimely).
We have no quarrel with Judge Hight’s ruling on David’s motion. The hearing on David’s motion to set aside the default and default judgment was conducted by Judge Winn, who was not disqualified. Judge Winn’s order to that effect, “effective forthwith” and “not conditional on entry of a formal order,” was a final and appealable order in this case. That provision of the minute order directing Karen’s counsel to prepare a formal order was, under the circumstances here, rendered superfluous by the order’s express provisions that the order was immediately effective and “not conditional on entry of a formal order”; being superfluous, it cannot vitiate other portions of the minute order which give immediate effect to Judge Winn’s denial of David’s motion. (Civ. Code, § 3537.)
Because we agree that the “formal order signed by Judge Mize did nothing more than memorialize the language of the order that took effect on October 13, 2004[,]” we decline the parties’ invitation to engage in the ongoing debate as to whether the acts of a disqualified judge are void or merely voidable. (See, e.g., North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 768-769 [“California law holds that rulings by a judge later found to be disqualified are either ‘void’ or ‘voidable’ — the precise label depending on which line of authority the particular court decides to follow”]; compare Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776, 779–780 with 2 Witkin, Cal. Procedure (5th ed. 2008) Courts, §§ 93–96, pp. 136–143 [advocating view that because court has subject matter jurisdiction, disqualified judge’s rulings are voidable rather than void].)
DISPOSITION
The order is affirmed. Respondent shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RAYE, J., MORRISON, J.