Citicorp North America, Inc. v. Superior Court

• Decision Date: 25 August 1989
• Docket Number: No. B041990,B041990
• Citation: 213 Cal.App.3d 563,261 Cal.Rptr. 668
• Court: California Court of Appeals Court of Appeals
• Parties: CITICORP NORTH AMERICA, INC., Security Pacific Business Credit, Inc., Wells Fargo Business Credit, Inc., Goldome, and National Bank of Canada, Petitioners, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, KF DAIRIES, INC., et al., Real Parties in Interest. Civ.

Page 668

261 Cal.Rptr. 668

213 Cal.App.3d 563

CITICORP NORTH AMERICA, INC., Security Pacific Business Credit, Inc., Wells Fargo Business Credit, Inc., Goldome, and National Bank of Canada, Petitioners, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent KF DAIRIES, INC., et al., Real Parties in Interest.

Civ. No. B041990.

Court of Appeal, Second District, Division 3, California.

Aug. 25, 1989.

Munger, Tolles & Olson, Ronald L. Olson and Cary B. Lerman, Shearman & Sterling, William M. Burke and William J.F. Roll, III, Los Angeles, for petitioners

No appearance for respondent.

Irell & Manella, Sheldon Eisenberg and Steven P. Jacobi, Los Angeles, for real parties in interest.

CROSKEY, Associate Justice.

Petitioners, (Citicorp North America, Inc., Security Pacific Business Credit, Inc., Wells Fargo Business Credit, Inc., Goldome, and National Bank of Canada) ("petitioners") seek a writ of mandate directing the trial court to vacate its order dated May 8, 1989, striking as untimely their motion to disqualify the trial judge under Code of Civil Procedure section 170.6. ¹

This writ proceeding presents for resolution the novel question of whether a party to a coordination proceeding has an additional five days, beyond the 20 days provided for in rule 1515, California Rules of Court ² to assert a challenge to the assigned trial judge where the order of assignment has been served by mail. We conclude that a fair reading of section 1013 and rules 1504(a) and 1515 compels the conclusion that section 1013 does apply to extend the 20-day time period set out in rule 1515. We therefore grant the writ.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are essentially undisputed. Petitioners are the defendants in all of the included actions in Judicial Council Coordination Proceeding No. 2138, entitled In re Knudsen Milk Producers Litigation ("coordination proceeding") which is now pending in the trial court below. ³ The coordination proceeding was established by order of the Judicial Council in December 1987. Since that time five different trial judges have been assigned to hear various proceedings in the matter. During the period from January 1988 until March 1989, Judges Higa, Stanton and Frisco presided.

In March 1989, Judge Ronald M. Sohigian was assigned as the trial judge. On March 29 plaintiffs in the coordinated case entitled In re K.F. Dairies, Inc., et al. v. Citicorp North America, Inc., et al. (real parties herein; hereinafter "KFD"), filed a motion disqualifying Judge Sohigian under section 170.6. On April 13, 1989, the Chairperson of the Judicial Council assigned Judge Abby Soven to replace him. The order of such assignment was served on the parties by mail on that same date.

On May 5, 1989, petitioners served on all other parties, and submitted to Judge Soven, a written motion for her peremptory disqualification under section 170.6. On May 8, 1989, Judge Soven entered a minute order striking petitioners' motion as untimely.

Petitioners sought a writ of mandate from this court. On May 26, 1989 we issued an alternative writ and an order staying all further proceedings "pending determination of the within petition or further

order of this court." ⁴

ISSUE PRESENTED

We have only a single question to answer. Where the order of assignment has been served by mail, does section 1013 extend the time in which a party to a coordination proceeding may file a motion challenging the assigned trial judge under section 170.6?

DISCUSSION

The record reflects without dispute that the order assigning Judge Soven as the coordination trial judge was dated April 13, 1989, and was served by mail on the same date. Any challenge to Judge Soven, under section 170.6, is governed by rule 1515: "Any motion or affidavit of prejudice regarding an assigned judge shall be submitted in writing to the assigned judge within 20 days after service of the order...." (Emphasis added.) ⁵

It is also undisputed that petitioners served on all parties, and submitted to Judge Soven, a written motion for her disqualification under section 170.6 on Friday, May 5, 1989, 22 days after service (by mail) of the assignment order.

This was obviously untimely, and the trial court was correct in striking the motion, unless the 20-day period provided for in rule 1515 had been extended. Petitioners claim that the manner of service of the order of assignment did result in an extension of the deadline. They cite section 1013 which states in pertinent part: "... [S]ervice [by mail] is complete at the time of the deposit [in a post office or other likely facility regularly maintained by the United States Postal Service], but any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period ... after the service of such document served by mail shall be extended five days if the place of address is within the State of California...." (Emphasis added.) The rules governing the coordination of civil actions state that unless otherwise provided in the rules, "all provisions of law applicable to civil actions generally apply regardless of nomenclature to an action included in a coordination proceeding...." (Rule 1504(a).) ⁶

Petitioners argue, not surprisingly, that the plain language of the cited statute and rules, as applied to these circumstances, gave them a 25-day period in which to file and serve a motion challenging Judge Soven; thus, they argue, they had until May 8, 1989 to file such motion and therefore they made a timely filing on May 5 and Judge Soven was thereafter without jurisdiction to act in the case.

Relevant case law supports their position. Section 1013 is a procedural statute of general application (Simpson v. Williams (1987) 192 Cal.App.3d 285, 289, 238 Cal.Rptr. 566) and it is not limited only to rules or statutes which expressly incorporate its terms. It has been broadly construed. (California Accounts Inc. v. Superior Court (1975) 50 Cal.App.3d 483, 486-487, 123 Cal.Rptr. 304.) In the absence of an exception expressly created by Thus, the cases have consistently held that where a prescribed time period is commenced by some circumstance, act or occurrence other than service then section 1013 will not apply. (Poster v. Southern California Rapid Transit Dist. (1989) 260 Cal.Rptr. 767 [review granted Oct. 12, 1989] [acceptance of a statutory offer under section 998 must be made within 30 days of the time the offer was made ]; County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 63-64, 208 Cal.Rptr. 263 [under Pen.Code, § 1306, subd. (b), bail forfeiture will be exonerated if summary judgment not entered within 90 days after expiration of the 180-day period in Pen.Code, § 1305, subd. (a) ]; Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 576, 579-580, 206 Cal.Rptr. 740 [petition for judicial review of adjudicatory action by local agency must be filed not later than 90 days following date when decision becomes final ]; Mario Saikhon, Inc. v. Agricultural Labor Relations Bd. (1983) 140 Cal.App.3d 581, 583, 189 Cal.Rptr. 632 [a petition for review must be filed within 30 days after issuance of an order of the ALRB] Fritts v. County of Kern (1982) 135 Cal.App.3d 303, 306, 185 Cal.Rptr. 212 [action must be commenced within 30 days after filing of minute order granting relief from claim filing requirement]; Amoroso v. Superior Court (1979) 89 Cal.App.3d 240, 242, 152 Cal.Rptr. 398 [request for trial must be filed within 20 days after filing of arbitration award].) ⁸

                statute or rules, 7 section 1013 applies to extend any prescribed time period following service by mail.  (Richards v. Miller (1980) 106 Cal.App.3d Supp. 13, 17, 165 Cal.Rptr. 276.)   It is a "service" statute and was intended by the Legislature to extend statutory deadlines and time periods initiated or triggered by a notice, document or request which is served by mail.  (Simpson v. Williams, supra, 192 Cal.App.3d at pp. 288-289, 238 Cal.Rptr. 566.)   Indeed, a distinction has even been drawn between a statute's use of the term "service," on the one hand, and the terms "mailing" or "deposit in the mail," on the other.  (Ibid; Cole v. Los Angeles Unified School Dist.  (1986) 177 Cal.App.3d 1, 4, 222 Cal.Rptr. 426;  Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 231-232, 137 Cal.Rptr. 146.)
                

On the other hand, where a prescribed time period is triggered by the term "service" of a notice, document or request then section 1013 will extend the period. (Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1098, 199 Cal.Rptr. 583; Karz v. Karl (1982) 137 Cal.App.3d 637, 645-646, 187 Cal.Rptr. 183; Hirsch v. Ensign (1981) 122 Cal.App.3d 521, 530-531, 176 Cal.Rptr. 17; Shearer v. Superior Court (1977) 70 Cal.App.3d 424, 426-428, 138 Cal.Rptr. 824; California Accounts, Inc. v. Superior Court, supra, 50 Cal.App.3d at pp. 485-487, 123 Cal.Rptr. 304.) As petitioners stress, rule 1515 specifically links the commencement of the 20-day period to service of the assignment notice.

Petitioners additionally emphasize that since rule 1515 provides that all plaintiffs or similar parties in a coordination proceeding constitute a side, and all defendants or similar parties also constitute a side, it is clear that any one party can exercise the sole peremptory challenge to the assigned trial judge which is available to that "side." Therefore, consultations among all similarly situated parties is very important. That process, because of the number of parties and counsel involved and KFD makes essentially two arguments in support of its position. First, it contends that the 20-day period allowed by rule 1515 is already generous enough and to extend it further by applying section 1013 is inconsistent with both the language of the rules and the policy requiring prompt challenges to all-purpose judges. Second, since petitioners knowingly delayed beyond the 20-day period that alone...