Opinion
E054140
09-27-2011
TIMOTHY LEWIS WHITING, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; DESERT REGIONAL MEDICAL CENTER et al., Real Parties in Interest.
Timothy Lewis Whiting, in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. INC10008352)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. Harold W. Hopp, Judge. Petition granted.
Timothy Lewis Whiting, in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
In this matter we have reviewed and considered the petition and the record. Real parties in interest have not filed an informal response despite this court's invitation to do so. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
The time limits for filing a peremptory challenge are set forth in subdivision (a)(2) of section 170.6 of the Code of Civil Procedure. As a general rule, a challenge of a judge is permitted any time before the commencement of a trial or hearing. However, section 170.6, subdivision (2), includes three express exceptions to the general rule: (1) the master calendar rule; (2) the all purpose assignment rule; and (3) the 10-day/5-day rule.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
When a judge has not been assigned to a case for all purposes including trial, it is not considered an all purpose assignment or a direct calendar assignment. (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1320.)
Judge Hopp was assigned the matter as the case management judge and this is not considered an all purpose assignment or a direct calendar assignment because he was not assigned the case for trial. Therefore, neither of the time limits applicable to those situations applies here. (See Grant v. Superior Court (2001) 90 Cal.App.4th 518.)
The 10-day/5-day rule applies. Petitioner's first attempt to challenge Judge Hopp was untimely because it was filed only four days before the first demurrer hearing. The second challenge was filed on July 14, 2011, five days before the hearing on July 19. Therefore, it was timely under section 170.6 and should have been accepted.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to vacate its order rejecting the peremptory challenge to Judge Hopp and to accept the challenge and assign the matter to another judge. No opposition having been received, this order shall be final forthwith.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
Acting P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.