Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 097539
McGuiness, P.J.
Petitioner Jessica Pan (Pan) petitions this court for a writ of mandate, seeking to have us reverse the denial of her peremptory challenge against Commissioner Susan Jakubowski of the San Mateo Superior Court. Her challenge was denied in the superior court as untimely because the Commissioner had ruled on two ex parte applications before the challenge was filed. As explained below, the challenge was timely and we therefore issue a writ directing the superior court to vacate its order of January 15, 2008, denying petitioner’s peremptory challenge and to issue a new and different order granting it.
PROCEDURAL HISTORY
On December 27, 2007, real party in interest Michael Beesley (Beesley) filed a petition to establish parental relationship, alleging that he is the father of an infant, William Michael Beesley, born December 6, 2007, and asserting that Pan is the child’s mother. On January 2, 2008, the case was assigned to Commissioner Jakubowski’s department, Department 29, for all purposes. The same day, Beesley submitted an ex parte application to have custody awarded to him. Beesley did not notify Pan of that application because, he claimed, notice “would frustrate the purpose of the orders sought” in that it would cause Pan to “become emotionally irrational and distraught,” thereby placing the infant at risk. On the strength of this ex parte application, the Commissioner awarded temporary sole physical and legal custody to Beesley on January 2, and the order was filed on January 3.
On January 4 Pan submitted an ex parte application seeking to regain custody of her son and disputing the factual allegations Beesley had alleged in his ex parte application. In response, on January 8, the superior court modified its previous order: (1) Beesley continued to have temporary sole physical custody of the child, (2) Pan and Beesley were now to share legal custody, (3) Pan was permitted up to three weekly, four-hour, unsupervised visits with the baby, (4) Pan was to provide Beesley with breast milk to feed the child while he was in Beesley’s care, and (5) the parties were to attempt to attend mediation before January 24.
The court’s order erroneously states that “Petitioner”—who below is Beesley—may have unsupervised visitation with the infant; clearly, given the court’s order awarding petitioner sole physical custody, the order should have read that the “respondent”—Pan—was entitled to the visitation. The court’s interlineations in paragraph four of the order, which refer to “respondent” visiting the baby, clarify its true intent.
On January 11, 2008, Pan submitted her peremptory challenge, pursuant to California Code of Civil Procedure section 170.6, asserting that Commissioner Jakubowski was prejudiced against her. On January 15, the superior court denied this challenge because there had been a “determination of [a] contested factual issue made on 1/2/08 by Dept. 29.”
Pan filed her petition on January 23, seeking a writ of mandate from this court. On that date, we temporarily stayed all proceedings before Commissioner Jakubowski pending consideration of this matter, and directed real party to file an informal opposition by January 30. In our order we clarified that the superior court retained jurisdiction to reassign any proceedings in this case to another department on an interim or permanent basis. We also gave notice that if the circumstances so warranted, we might issue a peremptory writ in the first instance.
On January 25, 2008, pursuant to a new ex parte custody application, Judge Pfeiffer ordered that sole temporary physical custody be returned to Pan. At the same time, Judge Pfeiffer reassigned the case to her department, Department 14, pending the determination of this writ petition.
Neither party informed this court of what has taken place in the superior court after the writ petition was filed. The fact that the child was returned to his mother temporarily is taken from the San Mateo Superior Court Register of Actions in this matter, of which we take judicial notice on our own motion. (See Evid. Code § 452, subd. (d).)
On January 30, the day real party’s opposition to the writ petition was due, we received a letter from his counsel stating that he did not intend to oppose the petition.
DISCUSSION
Section 170.6 of the Code of Civil Procedure, the statute that sets out the standards for peremptory challenges, provides, in pertinent part: “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.” (Code Civ. Proc. § 170.6, subd. (a)(2).) The issue of timeliness here turns solely on whether the Commissioner’s January 2 and 8 rulings are determinations of contested factual issues on the merits.
In denying the peremptory challenge, the superior court relied exclusively on the January 2 rulings. We note that the court’s January 8 modification of its January 2 rulings was similarly in response to an ex parte application: Pan’s, submitted on January 4.
A judicial officer’s having acted on some preliminary hearing or matter that does not determine a contested factual matter on the merits is not a bar to a party’s subsequently bringing a peremptory challenge against that officer. (Code Civ. Proc.§ 170.6, subd. (a)(2).) Nothing in the Commissioner’s rulings is relevant to the paternity determination—the subject of the petition below. The only published case on point squarely holds that rulings on ex parte motions are not determinations of contested factual matters on the merits. (See Thompson v. Superior Court (1962) 206 Cal.App.2d 702.) In Thompson, the judge had issued various orders in the case including (1) orders to show cause, applied for by each of the parties, seeking temporary custody of the minors, (2) an ex parte temporary restraining order enjoining the defendant from removing the children from the family home, (3) ex parte temporary restraining orders enjoining the plaintiff from disposing of community property, from harassing the defendant, from residing within the family home and from removing the children from the defendant’s physical custody, and (4) various continuances. (Id. at 708.) Both the plaintiff and the defendant had brought ex parte applications before the judge when plaintiff sought to disqualify him. Because every order made by that judge had either been made pursuant to an ex parte application or a stipulation of the parties, “none was the result of a hearing upon a contested issue.” (Id. at 709.) Thus, the Thompson court concluded the judge who had issued those orders based on ex parte applications was subject to a section 170.6 challenge. (Id. at 710.)
In the more than 45 years since the publication of Thompson, no California published decision has disagreed with the principle that a judicial officer’s having acted on ex parte motions does not bar a party from bringing a peremptory challenge against him or her. Under controlling statutory and case law, petitioner’s section 170.6 challenge must be deemed timely.
One case, Mayr v. Superior Court (1964) 228 Cal.App.2d 60, 64, criticized Thompson on the grounds that the time for challenging a judge should run not from when an order is entered, but from when a hearing is convened. Such a distinction has no bearing on the issues currently before us.
We note that we have received three requests to publish this opinion. Since requests for publication are to be made after an opinion is filed (see Cal. Rules of Court, rule 8.1120(a)(3)), these requests are premature. Interested parties may make a timely request for publication pursuant to California Rules of Court, rule 8.1120.
The relevant statute and the single published case on point support the conclusion that petitioner’s challenge was timely. Real party did not oppose the petition. Thus, the accelerated Palma procedure (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171) is appropriate because “no purpose could reasonably be served by plenary consideration of the issue.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241.)
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order denying petitioner’s peremptory challenge to Commissioner Jakubowski and enter a new and different order granting petitioner’s section 170.6 challenge.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.