Entente Design, Inc. v. Superior Court of San Diego Cnty., D062951

• Court: California Court of Appeals
• Writing for the Court: McCONNELL
• Citation: 214 Cal.App.4th 385,154 Cal.Rptr.3d 216
• Parties: ENTENTE DESIGN, INC., et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Leigh A. Pfeiffer, Real Party in Interest.
• Decision Date: 12 March 2013
• Docket Number: D062951

?214 Cal.App.4th 385
154 Cal.Rptr.3d 216

ENTENTE DESIGN, INC., et al., Petitioners,
v.
The SUPERIOR COURT of San Diego County, Respondent;
Leigh A. Pfeiffer, Real Party in Interest.

D062951

Court of Appeal, Fourth District, Division 1, California.

Filed March 12, 2013

Petition granted.

See 2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 140 et seq.

PROCEEDINGS in mandate after the denial of a challenge to a trial judge under Code of Civil Procedure section 170.6. Luis R. Vargas, Judge. Petition granted. (San Diego County Super. Ct. No. 37–2011–00100624–CU–CO–CTL)

Karcher Harmes, Kathryn E. Karcher; Ravin Glovinsky, William W. Ravin and Jason L. Glovinsky, San Diego, for Petitioners.
Kristine P. Nesthus, San Diego, David E. Westman and Susanne C. Washington for Respondent.
Mitchell Gilleon Law Firm, James C. Mitchell, San Diego, for Real Party in Interest.
McCONNELL, P.J.

[214 Cal.App.4th 387]

INTRODUCTION

In this petition, we must decide whether, for purposes of determining the timeliness of a challenge to a trial judge under Code of Civil Procedure ¹

[214 Cal.App.4th 388]

section 170.6 (section 170.6 challenge), an independent calendar court functioned as a master calendar court when the independent calendar court assigned a case to another courtroom. We conclude under the circumstances presented that the independent calendar court did not function as master calendar court. Therefore, the section 170.6 challenge at issue in this case was timely and the superior court should have granted it.

BACKGROUND

This petition arises from a corporate dissolution action filed by minority shareholder Leigh A. Pfeiffer (plaintiff) against Entente Design, Inc., and majority shareholders John and Carrie Arbuckle (defendants). The case was originally assigned to the Honorable John S. Meyer for all purposes.

On November 6, 2012, counsel attended an ex parte hearing. At the hearing, Judge Meyer granted defense counsel's request to continue the start of trial one day from November 13 to November 14. Judge Meyer also orally advised counsel he would not be available on November 14 and would tell them at trial call on November 9, which trial judge would be assigned the case.

On the morning of November 9, counsel appeared before Judge Meyer and defense counsel agreed to a bench trial. Judge Meyer informed counsel the Honorable Luis R. Vargas was available to try the case on November 14. Although defendants dispute this point, according to Judge Meyer both counsel indicated they had no problem with having the case assigned to Judge Vargas. Judge Meyer directed them to report to Judge Vargas's courtroom “forthwith.” Counsel immediately reported to the courtroom and briefly consulted with Judge Vargas. Judge Vargas confirmed the bench trial and the November 14 trial date. Within an hour after leaving the courtroom, defense counsel filed a section 170.6 challenge to Judge Vargas.

Judge Vargas's clerk contacted defense counsel in the afternoon of November 9 seeking an explanation for why defense counsel failed to raise the issue with Judge Meyer or Judge Vargas that morning. Defense counsel explained he had not had an opportunity to discuss the matter with his clients and did not want to raise the possibility of a section 170.6 challenge unless he was actually going to file one. Judge Vargas subsequently denied the challenge as untimely.

[214 Cal.App.4th 389]

Defendants filed this petition asserting the superior court improperly denied the challenge. After considering the parties' briefing and arguments, as well as briefing and arguments from the superior court,² we conclude the challenge was timely and grant the petition. ³

DISCUSSION

“We review the trial court's denial of the section 170.6 challenge for an abuse of discretion. A trial court ‘abuses its discretion when it erroneously denies as untimely a section 170.6 challenge.’ ” ( D.M. v. Superior Court (2011) 196 Cal.App.4th 879, 886, 126 Cal.Rptr.3d 785.)

“Section 170.6 permits a party to an action to disqualify summarily an assigned judge based on a sworn statement of the party's belief that the judge is prejudiced against that party or the party's attorneys. Provided the statement is timely and in proper form, the judge has no discretion to refuse the challenge. [Citations.] The right to disqualify a judge under section 170.6 ‘ “is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.” ' ” ( Pickett v. Superior Court (2012) 203 Cal.App.4th 887, 892, 138 Cal.Rptr.3d 36.)

Generally, a section 170.6 challenge is permitted any time before the commencement of a trial or hearing. There are, however, three exceptions to the general rule: the all purpose assignment rule, the 10–day/5–day rule, and the master calendar rule. ( People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) For any given factual scenario, a court must determine whether any of the exceptions apply, or whether the general rule applies. ( Id. at p. 1172, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) “ ‘ “As a remedial statute,

[214 Cal.App.4th 390]

section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.” ’ ” ( Pickett v. Superior Court, supra, 203 Cal.App.4th at p. 892, 138 Cal.Rptr.3d 36.)

Under the all-purpose assignment rule, a section 170.6 challenge to a judge must be filed within 10 days for criminal cases, or within 15 days for civil cases, after notice of the judge's all-purpose assignment. (§ 170.6, subd. (2); Lavi, supra, 4 Cal.4th at p. 1178, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

Under the 10–day/5–day rule, a section 170.6 challenge to a judge who has not been assigned for all purposes must be filed at least five days before the trial date if the judge's identity is known more than 10 days before that date. (§ 170.6, subd. (2); Lavi, supra, at p. 1182, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) Neither party contends these exceptions apply in this case.

Instead, the parties dispute whether the master calendar rule applies. Under the master calendar rule, a section 170.6 challenge must be filed no later than the time the case is assigned for trial. (§ 170.6, subd. (2); Lavi, supra, 4 Cal.4th at p. 1172, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) If the rule applies, defendants' section 170.6 challenge was untimely because they made it approximately an hour after Judge Meyer assigned the case to Judge Vargas for trial. If the master calendar rule does not apply, then the general rule applies and defendants' challenge was timely because the defendants made it before the trial commenced.

Whether the master calendar rule applies depends on whether Judge Meyer was managing a true master calendar when he assigned this case to Judge Vargas. ( Lavi, supra, 4 Cal.4th at pp. 1174–1175, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) A judge manages a true master calendar when the judge assigns trial-ready cases to trial-ready courtrooms for it is this circumstance that justifies the master calendar rule. ( Id. at pp. 1175–1177, 17 Cal.Rptr.2d 815, 847 P.2d 1031.) When there is a trial judge ready and able to commence a trial, it is impracticable to allow litigants the time period permitted under the other rules to consider the advisability of making a section 170.6 challenge. By requiring litigants to make their challenges...