Carl v. Superior Court, G038766.

• Decision Date: 21 November 2007
• Docket Number: No. G038766.,G038766.
• Citation: 157 Cal.App.4th 73,68 Cal.Rptr.3d 566
• Court: California Court of Appeals Court of Appeals
• Parties: Andrew F. CARL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Coast Community College District et al., Real Parties in Interest.

68 Cal.Rptr.3d 566

157 Cal.App.4th 73

Andrew F. CARL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent Coast Community College District et al., Real Parties in Interest.

No. G038766.

Court of Appeal, Fourth District, Division 3.

November 21, 2007.

David R. Williams for Petitioner.

No appearance for Respondent.

No appearance for Real Parties in Interest.

OPINION

THE COURT:^*

It has apparently become common practice in the trial courts for litigants to file a "notice of unavailability" under the guise of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 10 Cal. Rptr.2d 371. The notice purports to advise the other parties to the action—as well as the court—that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party. To the extent this practice attempts to put control of the court's calendar in the hands of counsel— as opposed to the judiciary—it is an impermissible infringement of the court's inherent powers.

I

On April 4, 2007, petitioner Andrew Carl filed a statement of disqualification against the assigned trial judge. He then filed a notice of unavailability under Tenderloin, indicating he would be unavailable to respond to anything until May 11, 2007. Given a challenged judge must act on a statement of disqualification within ten days of its filing or be deemed to have consented to the disqualification, on April 13, 2007, the court ordered the statement stricken because it disclosed no legal grounds for disqualification and was untimely. (Code Civ. Proc., § 170.4, subd. (b).) The court clerk served a copy of the order on the parties the same day. Petitioner filed the instant petition for writ of mandate on June 11, 2007.

The petition is untimely on its face. An order striking a statement of disqualification is not appealable; it may only be challenged by a petition for writ of mandate filed "within 10 days after service of written notice of entry of the court's order...." (Code Civ. Proc., § 170.3, subd. (d).) Here the petition was filed almost two months after petitioner was served written notice of entry of the order striking the statement of disqualification.

Petitioner first insists the petition is timely because the trial court served notice on him and did not send written notice to the attorney representing him as required by law. In support of this argument he attaches a copy of the facsimile cover sheet the court used to serve the order on him: it shows his name but not his attorney's. The inference we are asked to draw is that his attorney was never served with the order and thus the time within which to file a petition for writ of mandate has neither started nor expired.

On our own motion we called up the superior court file and take judicial notice of the documents in it. (Evid.Code, § 452, subd. (d)(1).) In addition to the facsimile cover sheet petitioner attached as an exhibit to the petition, the superior court file includes a separate facsimile cover sheet showing service of the order on petitioner's counsel as well as separate cover sheets showing service on all other parties. We are therefore satisfied that petitioner's counsel was served with written notice of entry of the order on April 13, 2007, and that the 10 days within which to file a petition for writ of mandate to challenge the superior court's order started on April 13.

Petitioner then asserts that the time to file the petition could not have started on April 13 because the day before the order was entered petitioner filed a "notice of unavailability" pursuant to Tenderloin. The purported function of this "notice" was to arrest the power of the superior court to issue any order that would require or impose upon petitioner any legal obligation to act. Simply put, petitioner essentially argues that by filing a "notice of unavailability" he...