Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV19530
RAYE, Acting P.J.Petitioners Gregory A. Rossini and Dennis A. Gardemeyer seek a writ of mandate challenging the November 26, 2007, order of respondent, the Placer County Superior Court, denying as untimely petitioners’ peremptory challenge pursuant to Code of Civil Procedure section 170.6. Respondent’s order was based on a local rule providing for telephonic notification of trial assignments and requiring any challenge to be exercised within two hours of notification. Real party in interest Donald V. Ryan (real party) originally filed a “responding brief” in which he disclaimed any desire to contest the matter or offer substantive arguments in response.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The order by Presiding Judge Larry D. Gaddis stated the disqualification was untimely under the Superior Court of Placer County, Local Rules, rule 20.10(A). However, in a January 8, 2008, letter to this court, Judge Gaddis states that the policy is now set forth in local rule 20.9. Local Rule 20.9 provides, in part: “Exercise of Peremptory Challenge Under Code of Civil Procedure Section 170.6 [¶] A. If a case was previously placed on telephone stand-by, the parties to such action shall have 2 hours from the time notice of the assignment of the case to a particular judge for trial or hearing is actually received to exercise any challenge to the assigned judge under CCP § 170.6.” (Sup. Ct. Placer County, Local Rules, rule 20.9(A), eff. Jan. 1, 2007, italics added.)
Following our review of the petition and relevant case law, we notified the parties we were considering the issuance of a peremptory writ of mandate in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma); Lewis v. Superior Court (1999) 19 Cal.4th 1232) directing the respondent court to vacate its order denying the peremptory challenge (§ 170.6) and to enter in its place an order accepting the filed challenge.
Thereafter, the superior court responded by letter declining to vacate its order, real party filed an “opposing brief,” and petitioners filed a reply.
In petitioners’ reply, they contend that real party should not be able to submit two different oppositions to the petition. We do not reach the merits of this contention because our Palma order specifically permitted the filing of a subsequent opposition.
After reviewing the responses received, we conclude the applicable principles of law are clear and the relevant facts undisputed; the peremptory challenge to the newly assigned judge was timely. Accordingly, issuance of a peremptory writ in the first instance is appropriate.
Factual and Procedural Background
The record provided to this court is sparse, confined as it is to the facts each party has chosen to give to us in support of their positions. The picture painted by the parties is incomplete. We are not informed of the nature of the underlying litigation and have only the barest description of its procedural history. Nonetheless, the critical facts are clear and undisputed.
On August 17, 2007, the parties met for a civil trial conference, at which time a trial date was set and, according to Presiding Judge Larry Gaddis, the attorneys were notified of a “telephone standby procedure.” Thereafter, though we are not provided with many details, the litigation proceeded. The trial date set on August 17 was vacated at a case management conference held on September 4, 2007, and the case was reset for trial the week of November 26, 2007. A referee was appointed to determine the fair market value of the property at issue, the parties’ respective interests, and to make a recommendation on partition. Both parties had filed motions concerning the referee’s report that were to be heard on November 27, 2007, in department 7.
It is undisputed that the master calendar clerk was ordered by the presiding judge to assign the case to be heard on November 27 at 10:30 a.m. before Judge Garbolino in department 17. Whether both counsel were notified of the trial assignment is disputed. The legal assistant for real party’s counsel confirms a telephone notification on November 21. While the clerk declares that on the same date she personally “noticed” petitioners’ counsel of the trial assignment, counsel has a different recollection. He declares the clerk called in response to his earlier inquiries about the case and during the course of the conversation stated that the case “may be assigned to Judge Garbolino” but “we would not know for sure until Monday, November 26,” the next court day following the Thanksgiving holiday.
Petitioners’ counsel states he was not made aware of the assignment of the case to Judge Garbolino until November 26, when he saw a tentative ruling on the cross-motions pertaining to the referee’s report that had been posted on the court’s Web site. The tentative order issued by Commissioner Wells, presiding in department 7, stated:
“The cross-motions to confirm, reject or modify the report prepared by the court-appointed referee have been continued to 10:30 am [sic] on November 27, 2007, in Department 17 of the Court in Lincoln to be heard by Judge James D. Garbolino at that time.”
At or around 1:15 p.m., petitioners’ counsel personally filed a peremptory challenge to Judge Garbolino at the court clerk’s office in Auburn and then at about 2:00 p.m. at department 17 in Lincoln.
Later that afternoon, both attorneys received an order from Judge Gaddis holding that the motion to disqualify Judge Garbolino was untimely under Superior Court of Placer County, Local Rules, rule “20.10 A.” The order stated, in part: “The case was assigned by the presiding judge, through master calendar on November 21, 2007. The attorneys for each side were notified telephonically at 11 am [sic].”
Discussion
I. Standard of Review
“‘The standard of review is abuse of discretion, and a trial court abuses its discretion when it erroneously denies as untimely a section 170.6 challenge. [Citations.]’ [Citation.]” (Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098.)
II. PEREMPTORY CHALLENGE TIME LIMITS -- THE MASTER CALENDAR EXCEPTION
Section 170 et seq. sets forth a detailed procedural scheme for the exercise of challenges to judicial officers, including the time during which an affidavit to disqualify a judge may be filed. Section 170.6, respecting peremptory challenges, provides that in all situations but one, the parties and counsel shall have a number of days to decide whether to file a peremptory challenge to a judge after the identity of the judge is revealed. Thus, the general rule is that “a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing.” (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171 (Lavi).) Section 170.6 lists only three exceptions to this rule -- the 10-day/5-day exception when a bench officer is known 10 days before; the exception that applies when a judge is “assigned for all purposes”; and the master calendar exception, the sole exception wherein a peremptory challenge to the judge must be filed immediately. (§ 170.6, subd. (a)(2).)
“. . . 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. . . .” (§ 170.6, subd. (a)(2).)
It is well-settled that “‘[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.)
As real party acknowledges, there is case law defining a master calendar court for purposes of section 170.6, subdivision (a)(2). There must be a ready case assigned to a ready department. A court may not subject every case assignment to the master calendar rule of section 170.6 simply by labeling the assigning court a “master calendar department.” (Lavi, supra, 4 Cal.4th at pp. 1174-1175.)
“As was stated in Villarruel v. Superior Court (1973) 35 Cal.App.3d 559, 563-564 [110 Cal.Rptr. 861]: ‘It appears to be the theory of the respondent court that any case which has been assigned by a master calendar department has been assigned from a “master calendar.” That theory is irreconcilable with the concept of a master calendar, as the term has been used in the Judicial Council rules, and subverts the legislative policy of allowing the litigant to make [its] motion five days before the trial. In every multi-judge court it is necessary to have some procedure whereby a presiding judge or supervising judge transfers and retransfers cases in order to distribute the business of the court. It is common to refer to the department of the presiding judge or supervising judge as the “master calendar department.” But section 170.6 cannot be construed as meaning that whenever a case is transferred from the presiding or supervising judge to another department, the motion must be made at that time or be forever barred.’” (Lavi, supra, 4 Cal.4th at pp. 1174-1175, italics added by Lavi.)
In a similar context, the Fourth District Court of Appeal has held that a telephone call from a court clerk noticing a trial assignment four days away did not fall within the master calendar exception. “The master calendar exception envisions that the parties’ attorneys are personally before the court when the assignment is made. It requires the challenge be made immediately upon the assignment in order to permit the ‘judge in the master calendar department to make an immediate assignment to another department and immediately to utilize the challenged judge for some other pending case.’ [Citation.] However, when a master calendar department assigns a case to a trial department well in advance of the trial date, the rationale of the master calendar rule does not apply. [Citation.]” (Stevens v. Superior Court (1997) 52 Cal.App.4th 55, 59-60, italics added.)
The record does not show that either the attorneys or the parties were present before Judge Gaddis on November 21 or were ready for immediate trial before an immediately available court. We have no minute orders or docket sheets that reflect such a proceeding. Indeed, there is no indication that the attorneys or parties had ever appeared before Judge Gaddis; the record shows that other proceedings were pending before Judge Wachob and Commissioner Wells. The fluid status of this litigation does not seem to satisfy the strict requirement of a ready case in a master calendar department. This appears to be an administrative assignment. It would defeat the purpose of section 170.6 to apply the master calendar exception to a situation in which neither the parties nor counsel are present or are ready for trial in a ready courtroom.
III. Application of the Local Rule
Respondent court has promulgated a local rule that purports to extend the time within which a challenge to a master calendar assignment must be exercised while providing an alternate method of notification that avoids the necessity of a personal appearance before the master calendar judge. The rule adds an additional two-hour window to file a Code of Civil Procedure section 170.6 challenge when cases are assigned out of a master calendar court, but only applies to cases “previously placed on telephone stand-by.” (See fn. 2, ante.) However, the local rule can only operate within the confines of section 170.6. Government Code section 68070, subdivision (a) provides, in part: “Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.” While courts also have “‘inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority’” (First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 333), such powers cannot be exercised in derogation of a specified statutory procedure (Motion Picture & Television Fund Hospital v. Superior Court (2001) 88 Cal.App.4th 488, 492).
Whether Superior Court of Placer County, Local Rules, rule 20.9 is compatible with section 170.6 is open to question in light of the cases on the master calendar exception discussed earlier. In any event, petitioners have not raised the issue and we have no occasion to consider it because there is no substantial evidence that the local rule applied. In order to invoke the local rule, it must be established that the case “was previously placed on telephone stand-by.” Despite ample opportunity to demonstrate otherwise, neither real party nor the trial court has provided us with any documentary evidence concerning if or when such an assignment to telephone stand-by status was previously made as required by local rule 20.9. The presiding judge’s letter simply states that the parties were informed of the “procedure” in August 2007. We have no evidence of any agreement by petitioners to this status or any relevant court order.
At oral argument, counsel for real party explained that there was never an actual assignment to telephone standby status in Placer County because all cases were assigned by telephone. Counsel for petitioners, however, whose office is not in Placer County, was entitled to conclude that the case had not been placed on telephone standby because of the plain language of Superior Court of Placer County, Local Rules, rule 20.9 that contemplates some act of assignment. “Although courts have inherent supervisory and administrative powers to carry out their duties [citation omitted], ‘[i]t is unrealistic to expect all counsel, including those who may primarily practice in other counties, to be aware of the unwritten rules for assignment of cases. . . .’ [Citation omitted.]” (Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 44.)
Petitioners argue that they only received official notice of the case assignment to Judge Garbolino on November 26. Our conclusion that the local rule does not apply avoids the need to resolve this factual dispute.
Because the present case was not assigned in a manner that permits application of Superior Court of Placer County, Local Rules, rule 20.9, the timeliness of petitioners’ challenge is governed by the clear and unqualified language of section 170.6. As we earlier explained, under the facts presented, the assignment of the case for trial did not invoke the master calendar exception, and thus petitioners’ peremptory challenge to Judge Garbolino was timely filed. The petition must be granted.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order of November 26, 2007, denying as untimely petitioners’ motion to disqualify Judge Garbolino and to enter a new and different order accepting the motion as timely and assigning further proceedings to a different judge. The stay of proceedings issued by this court is dissolved. Petitioners shall recover costs. (Cal. Rules of Court, rule 8.490(m)(1)(A).) Pursuant to the agreement of both parties at oral argument, we shall order this case to be final forthwith.
We concur: MORRISON, J., CANTIL-SAKAUYE, J.