Forsythe v. Superior Court of San Diego Cnty.
| Decision Date | 16 October 2017 |
| Docket Number | D072803 |
| Court | California Court of Appeals Court of Appeals |
| Parties | NEVAN FORSYTHE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; KRISTIN DOVE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. 17FL006794C)
ORIGINAL PROCEEDING in mandate challenging an order of the Superior Court of San Diego County. David L. Berry, Judge. Petition granted.
Stephen M Bishop for petitioner.
Kristin P. Nesthus, Court Counsel, for respondent.
No appearance for real party in interest.
By petition for writ of mandate, Nevan Forsythe challenges an order of the Superior Court of San Diego County (the family court) denying as untimely his peremptory challenge to the judge assigned for all purposes to the paternity action filed against him by his former girlfriend, Kristin Dove. We conclude that the challenge was timely filed and in proper form and should have been granted, and therefore grant the petition.
Dove filed a petition against Forsythe in the family court, alleging that he is the father of her son D., who was born in May 2012, and requesting a declaration of paternity and orders regarding custody and visitation of D. At the time of filing, the case was assigned for all purposes to the Honorable David L. Berry. Forsythe signed a notice and acknowledgment of receipt of the petition and the notice of case assignment on June 28, 2017. He retained counsel and filed a responsive declaration to Dove's request for order regarding custody and visitation in September 18, 2017, his first filing in the paternity action. On the same day, Forsythe filed a peremptory challenge on the form used by the family court, in which his attorney declared under penalty of perjury that Judge Berry was prejudiced against Forsythe or the attorney and as a result Forsythe would not receive a fair and impartial trial. Later that day, Judge Berry denied the peremptory challenge as "[n]ot timely filed."
Forsythe challenged the denial by filing a "Petition for Writ of Mandate and Request for Immediate Relief" in this court. He contended that the peremptory challenge filed on the same day that he first appeared in the paternity action was timely. Forsytherequested a writ of mandate "directing [the family court] to immediately grant [the peremptory challenge] and assign all matters to a new and impartial judge for all purposes." We stayed all further proceedings in the underlying action and solicited informal responses from the family court and from Dove. Dove did not respond, and the family court submitted a letter declining to provide a substantive response.
A party or an attorney may disqualify a judge "by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury . . . that the judge . . . before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge . . . ." (Code Civ. Proc., § 170.6, subd. (a)(2).) "A section 170.6 disqualification motion accompanied by an affidavit or declaration alleging such prejudice is alone sufficient, and the motion requires no proof of actual prejudice." (Rothstein v. Superior Court (2016) 3 Cal.App.5th 424, 429.) "[D]isqualification is automatic on filing a timely motion in proper form." (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 806; accord, In re Abdul Y. (1982) 130 Cal.App.3d 847, 854 [].) " " (Entente Design, Inc. v. Superior Court (2013) 214 Cal.App.4th 385, 389.)
The dispositive question in this proceeding is whether Forsythe's peremptory challenge was timely. Where, as here, a civil case "has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance." (Code Civ. Proc., § 170.6, subd. (a)(2).) The record shows that Forsythe had notice of the assignment of the paternity action to Judge Berry for all purposes on June 28, 2017, but he had not yet appeared in the action. The record also shows that Forsythe did not appear until he filed his responsive declaration to Dove's request for order regarding custody and visitation on September 18. (See La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504 []; Wilson v. Barry (1951) 102 Cal.App.2d 778, 781 [].) The peremptory challenge filed on the same day as Forsythe first appeared in the action was obviously filed "within 15 days after the appearance" (Code Civ. Proc., § 170.6, subd. (a)(2)) and was therefore timely. Since the challenge was also in proper form, the family court was required to grant it. (In re Abdul Y., supra, 130 Cal.App.3d at p. 854 [].)
To correct the family court's error in denying Forsythe's peremptory challenge, immediate writ relief is warranted. A petition for writ of...
To continue reading
Request your trial