Los Angeles County Dept. of Pub. Social Services v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: POTTER; FORD, P.J., and ALLPORT
• Citation: 69 Cal.App.3d 407,138 Cal.Rptr. 43
• Parties: LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, JUVENILE COURT, and Referee Bradley Stoutt, Respondents; DOLORES J., and Raymond Theodore J., Real Parties in Interest. Civ. 50584.
• Decision Date: 27 April 1977

Page 43

138 Cal.Rptr. 43 69 Cal.App.3d 407 LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Petitioner,
v.
SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, JUVENILE COURT, and Referee Bradley Stoutt, Respondents;
DOLORES J., and Raymond Theodore J., Real Parties in Interest. Civ. 50584. Court of Appeal, Second District, Division 3, California. April 27, 1977.

[69 Cal.App.3d 409]

Page 44

John H. Larson, County Counsel, William R. Kirkpatrick, Deputy County Counsel, Los Angeles, for petitioner.

No appearance by respondents.

Thomas J. Scully, Los Angeles, for real parties in interest.

POTTER, Associate Justice.

Petitioner, Los Angeles County Department of Public Social Services (hereinafter 'petitioner') seeks a writ of mandate ordering respondent juvenile court of Los Angeles to disqualify respondent Referee Bradley A. Stoutt from hearing the juvenile dependency proceedings in said court entitled In the Matter of Raymond J., No. J 902311, and In the Matter of Robert Daniel J., No. J 902312, and to transfer these cases to another hearing officer. The sole issue is the timeliness of petitioner's motion for disqualification of the referee pursuant to Code of Civil Procedure section 170.6.

The facts are not in dispute. On November 2, 1976, petitioner filed two petitions in juvenile court seeking to have the aforesaid minors declared [69 Cal.App.3d 410] dependent children of the court pursuant to former section 600 (now § 300) ¹ of the Welfare and Institutions Code.

Page 45

On November 3, 1976, in Department 236 before Referee Mitchell, the minors' mother (hereinafter 'real party in interest') ² and petitioner stipulated to a 'preplea investigation.' The matters were, therefore, continued to December 6 in department 238 for receipt of petitioner's social study and mother's 'arraignment.'

On December 6, 1976, in department 238 before Referee Libow, the matters were again continued to January 6, 1977, in the same department on petitioner's recommendation.

On January 6, 1977, in department 238 before Referee Libow, real party in interest denied the allegations in both petitions. Adjudication proceedings were set for 8:30 a.m. February 25, in department 234 where Judge Giannini, the supervising judge of the juvenile annex building, normally sits.

On February 25, 1977, around noon, Judge Giannini informed counsel in chambers in department 234 that he would be unable to hear the matters that date and was transferring them to department 235 where Referee Stoutt was sitting.

At 2:00 p.m., when the matters were called in department 235, petitioner first moved to continue the proceedings. After that motion was denied, petitioner unsuccessfully sought to transfer the matters back to department 234. ³

Petitioner then filed a declaration pursuant to Code of Civil Procedure section 170.6 and moved to disqualify Referee Stoutt. Referee Stoutt refused to disqualify himself on the ground that the motion was untimely. The court stated that petitioner 'should have let Judge [69 Cal.App.3d 411] Gianinni (sic) know immediately as soon as the judge had indicated to him earlier that it was coming to 235. And then once in 235 . . . he should have immediately commenced by making his motion to disqualify 235 rather than making a motion for a continuance.'

Referee Stoutt proceeded to hear evidence in the adjudication matters the remainder of the afternoon and then continued the proceedings to March 8.

On March 4, 1977, in response to petitioner's request, this court granted an alternative writ of mandate and a stay order and set the matter for hearing on April 20, 1977. On March 8, the juvenile matters were placed off calendar pursuant to said stay order. On March 21, real party in interest filed a return to the petition. Respondent court and referee have not filed a separate return.

Petitioner contends the motion was timely and, therefore, the referee should have disqualified himself. Real Party in interest contends that the motion was untimely because petitioner failed to make the motion to supervising Judge Giannini prior to transfer to Referee Stoutt as would be required under a master calendar. We agree with petitioner that the motion was timely. Accordingly we issue the peremptory writ of mandate as prayed.

The Motion to Disqualify Was Timely

Code of Civil Procedure section 170.6 provides in general that any party to an action may make a motion to disqualify the trial judge, commissioner or referee ⁴ supported by an affidavit of prejudice. As our Supreme Court recently reemphasized in Solberg v. Superior Court, 19 Cal.3d 182, 193, 137 Cal.Rptr. 460, 467, 561 P.2d 1148, 1155, quoting from McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 531, 116 Cal.Rptr. 260, 526 P.2d 268:

Page 46

"It is well recognized that in enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is 'automatic' in the sense that a good faith Belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.' (Italics in original.)'

If 'the affidavit is timely and properly made, immediate disqualification is [69 Cal.App.3d 412] mandatory.' (McCartney v. Commission on Judicial Qualifications, 12 Cal.3d at p. 532, 116 Cal.Rptr. at p. 274, 526 P.2d at p. 282.)

The critical language concerning timeliness of a motion appears in subdivision (2) of Code of Civil Procedure section 170.6, wherein it is stated:

'. . . Where the judge, 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 five 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. In no event shall any judge, court commissioner, or referee entertain such motion if it be made . . . after the making of an opening statement by counsel for plaintiff or . . . after swearing in the first witness or the giving of any evidence or After trial of the cause has otherwise commenced. If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than The commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be. 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 hereinbefore provided.' (Emphasis added.)

The general rule established by section 170.6 is that disqualification is permitted at any time prior to commencement of the trial or hearing. Two exceptions are provided--the 10 day-5 day provision and the master calendar provision. These special time limits are the Legislature's method for 'accommodating the conflicting needs of the litigant and the court, where the party wishes to postpone his motion until he is fully informed, and the court requires time to make adjustments after a disqualification.' (People v. Escobedo, 35 Cal.App.3d 32, 37, 110 Cal.Rptr. 550, 553; Villarruel v. Superior Court, 35 Cal.App.3d 559, 561--562, 110 Cal.Rptr. 861.)

It is undisputed that the 10 day-5 day provision cannot apply to the disqualification of Referee Stoutt since it was not until approximately 12 [69 Cal.App.3d...