Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Michael Brenner, Judge. Petition granted., Super. Ct. No. 05CC10701.
Brewer & Brewer and Carl N. Marschall for Petitioners.
No appearance for Respondent.
No appearance for Real Party in Interest.
Before Rylaarsdam, Acting P.J., O’Leary, J., and Ikola, J.
Petitioners Ali Danny Talebi and David Mehrdad Talebi (the Talebis) seek extraordinary relief from an order striking as untimely their motion under Code of Civil Procedure section 170.6 to disqualify the judge. (All further statutory references are to the Code of Civil Procedure.) Finding plain error, we issue a peremptory writ of mandate in the first instance directing the trial court to grant the disqualification motion.
Background
On September 28, 2005, real party in interest American & European Aircraft Sales Co. (A&E Aircraft) filed a complaint against the Talebis. The case was eventually assigned for all purposes to Judge Michael Brenner. On February 15, 2006, A&E Aircraft obtained permission to serve the Talebis by publication, and eventually succeeded in having their defaults entered. On August 25, 2006, the court issued a minute order granting a default judgment against the Talebis in the amount of $153,939.37. The court entered judgment to that effect on September 22, 2006.
On May 15, 2007, the Talebis filed a section 170.6 motion to disqualify Judge Brenner. (The Talebis assert in their writ petition that they “[c]oncurrently” filed a motion to quash service of the summons and complaint and for an order vacating entry of judgment, but that motion is file-stamped May 17.) On May 16, Judge Brenner issued a minute order striking the disqualification motion as untimely based on the court’s “having granted Default Judgment” against the Talebis and “having filed said Judgment” the previous year.
The Talebis filed this petition for a peremptory writ of mandate. We invited A&E Aircraft to file an informal response, but it declined to do so. As we explain below, we determine the trial court plainly erred in striking the motion to disqualify as untimely. Because “petitioner’s entitlement to the relief requested is so obvious that no purpose could be served by plenary consideration of the issue,” we issue a peremptory writ of mandate in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)
Discussion
A party may file a peremptory challenge to a judge in connection with any trial, special proceeding, or hearing involving “a contested issue of law or fact[.]” (§ 170.6, subd. (a)(1); Grant v. Superior Court (2001) 90 Cal.App.4th 518, 526-527.) Where, as here, a judge is assigned for all purposes, the pertinent timing requirements for a peremptory challenge are as follows: “[T]he 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).) Because the Talebis had not yet made an appearance in the action when they filed their peremptory challenge against Judge Brenner, their challenge clearly met this statutory deadline.
The court wrongly concluded that its earlier action in granting a default judgment against the Talebis rendered their disqualification motion untimely. The fact a trial judge has presided at some earlier hearing or proceeding in the case “is not a bar to a disqualification motion unless [the earlier hearing required] resolution of ‘contested fact issues relating to the merits’ of the case. (§ 170.6, subd. (a)(2).)” (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1133-1134.) By definition, a default judgment is not contested. Thus, Judge Brenner’s entry of the default judgment against petitioners did not make their disqualification motion untimely. (See Bouchard v. Insona (1980) 105 Cal.App.3d 768, 770-771 [defendants’ disqualification motion was timely where defendants were also seeking to vacate entry of default and set aside default judgment].)
The trial court plainly erred in finding the disqualification motion untimely. The Talebis filed their peremptory challenge to Judge Brenner before he had ruled on any contested fact issue and before they had appeared in the action. “When an affidavit of prejudice has been timely filed, the judge's disqualification is automatic and mandatory. [Citation.]” (In re Abdul Y. (1982) 130 Cal.App.3d 847, 854-855.) The court had no choice here but to grant the disqualification motion.
Disposition
A peremptory writ of mandate shall issue directing the superior court to vacate its order striking the motion to disqualify Judge Brenner and to enter a new order granting the disqualification motion.