Opinion
B237334
02-02-2012
RAYTHEON COMPANY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BELYNDA BYRD, Real Party in Interest.
Cohon & Pollak, Jeffrey M. Cohon and Kristina S. Keller for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(L.A.S.C. No. BC467279)
OPINION AND ORDER
GRANTING PEREMPTORY
WRIT OF MANDATE
ORIGINAL PROCEEDING; petition for writ of mandate. Susan Bryant-Deason, Judge. Petition granted.
Cohon & Pollak, Jeffrey M. Cohon and Kristina S. Keller for Petitioner.
No appearance for Respondent.
Law Offices of Victor L. George and Victor L. George for Real Party in Interest.
We hold that, because the 15-day period for filing a peremptory challenge was suspended while the matter was pending in federal court, the peremptory challenge of petitioner Raytheon Company (Raytheon), defendant in an underlying age discrimination action filed by former employee Belynda Byrd (Byrd), was timely. Accordingly, we grant the petition and order the superior court to transfer the matter to a judge other than the Honorable Susan Bryant-Deason.
BACKGROUND
On August 29, 2011, after real party Byrd exercised her peremptory challenge, the case was assigned to Judge Susan Bryant-Deason. On September 27, Raytheon made its first appearance by filing its answer. On September 29, Raytheon was successful in having the case removed from the superior court to federal court. On October 25, the federal court remanded the matter back to state court. On October 26, notice of remand was served electronically on Raytheon and Byrd and via United States mail on the superior court. On October 27, Raytheon filed a notice of remand and its peremptory challenge to Judge Bryant-Deason, who struck the challenge as untimely on the basis that it had not be filed within 15 calendar days of the date that Raytheon made its first appearance in the superior court.
Raytheon filed the instant petition. We requested informal opposition be served and filed. Byrd filed a "Statement of Non-opposition." We issued a Palma notice, notifying the parties that we were considering the issuance of a peremptory writ in the first instance. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1238; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) No party filed any responsive papers.
DISCUSSION
If the matter had remained in the superior court, then the filing of the peremptory challenge on October 27 would have been untimely, as that date is beyond the 15-day period for filing a peremptory challenge to a judge assigned for all purposes to a case. "If directed to the trial of a civil 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 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance." (Code Civ. Proc., § 170.6, subd. (a)(2).)
The 15-day period stopped running for the period of time during which the matter was pending in federal court, because the state court's jurisdiction was suspended during that period. (28 USC §§1446, 1447.) "[T]he state court's jurisdiction is suspended when the defendant seeking removal gives notice to the state court clerk, and it is reacquired when the district court clerk gives notice to the state court clerk in the form of a certified copy of the remand order." (Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 356.)
Thus, the 15-day period commenced to run when Raytheon made its first appearance on September 27 and was suspended on September 29. It recommenced running upon return of the matter to the superior court, so that, only a few days having run, the filing of the peremptory challenge on October 27 was well within the statutory period for the filing of a peremptory challenge.
As the superior court's jurisdiction was suspended while the matter was pending in federal court, the peremptory challenge was timely made.
ACCORDINGLY,
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate "in the first instance." (Code Civ. Proc., § 1088.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court: (1) To vacate its order of November 3, 2011, in Los Angeles Superior Court case No. BC467279, entitled Belynda Byrd v. Raytheon Company, denying the peremptory challenge of Raytheon Company pursuant to Code of Civil Procedure section 170.6; (2) To issue a new and different order granting same, and (3) To transfer the matter to a judge other than the Honorable Susan Bryant-Deason.
The temporary stay order is hereby terminated.
All parties shall bear their own costs.
NOT TO BE PUBLISHED
THE COURT:
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MALLANO, P. J.
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ROTHSCHILD, J.
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JOHNSON, J.