Guedalia v. Superior Court

• Decision Date: 27 June 1989
• Docket Number: No. D009794,D009794
• Citation: 211 Cal.App.3d 1156,260 Cal.Rptr. 99
• Court: California Court of Appeals Court of Appeals
• Parties: Irwin J. GUEDALIA, et al, Petitioners, v. SUPERIOR COURT, etc., County of San Diego, Respondent. John M. LOMAC, Jr., et al, Real Parties in Interest.

Page 99

260 Cal.Rptr. 99

211 Cal.App.3d 1156

Irwin J. GUEDALIA, et al, Petitioners, v. SUPERIOR COURT, etc., County of San Diego, Respondent John M. LOMAC, Jr., et al, Real Parties in Interest.

No. D009794.

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

June 27, 1989.

Review Denied Aug. 31, 1989.

Sharron Voorhees and William Duerksen, San Diego, for petitioners.

No appearance for respondent.

Bamberg & Associates and Daniel F. Bamberg, San Diego, and Shawn E. Caine, for real parties in interest.

FROEHLICH, Associate Justice.

In this proceeding in mandate, petitioners Irwin J. Guedalia and James C. Martinez III (Guedalia) request that we order the superior court to vacate its order denying Guedalia's peremptory challenge to Judge Pate, and that we vacate all orders of the superior court which were entered subsequent to the date on which the peremptory challenge was allegedly wrongfully denied. We conclude that Guedalia's failure to seek relief by mandamus within 10 days after he was notified of the denial of his peremptory challenge precludes Guedalia from obtaining any relief.

FACTUAL AND PROCEDURAL BACKGROUND

Guedalia filed his complaint for damages against real party in interest John M. Lomac in early 1988, and subsequently obtained a default judgment against Lomac. Guedalia subsequently sought to execute on the judgment, and Lomac responded by moving to set aside the default and default judgment.

The hearing on Lomac's motion to vacate the default was continued on two occasions to allow the respective parties to file papers in support of and in opposition to the motion. The hearing on the various motions was finally held on January 26, 1989.

Prior to the January 26, 1989 hearing, Guedalia filed a peremptory challenge, pursuant to CODE OF CIVIL PROCEDURE SECTION 170.6¹, to disqualify Judge Pate from ruling on any matters in the action. The section 170.6 challenge was filed and served on January 19, 1989. At the hearing on January 26, Judge Pate found that the section 170.6 challenge was untimely, announced that Guedalia's section 170.6 motion was denied, and entered an order denying the motion. Judge Pate thereafter heard arguments on the substantive motions of the parties, and took the motions under submission. On February 8, 1989, Judge Pate entered a minute order granting Lomac's motion to set aside the default and default judgment.

Lomac thereafter calendered a hearing on his demurrer to Guedalia's second amended complaint. Guedalia opposed Lomac's demurrer on its merits. At the March 31, 1989 hearing on Lomac's demurrer, a different judge sustained the demurrer without leave to amend. On April 6, 1989, Guedalia filed his petition for writ of mandate with this court, seeking to escape both from the order vacating the default and from the order which sustained Lomac's demurrer without leave to amend.

We conclude Guedalia's failure to seek appellate relief, by way of mandamus, within 10 days after he had notice that Judge Pate had denied Guedalia's section 170.6 motion, precludes Guedalia from obtaining any relief based on the allegedly erroneous denial of his section 170.6 motion.

1. The Failure to Seek Appellate Review of An Allegedly Erroneous Denial of a Disqualification Motion Under Code of Civil Procedure Section 170.6, by Petition for Mandamus Sought within 10 Days After Notice of the Decision, Precludes the Party From Obtaining Appellate Relief.

A. The Exclusive Avenue to Obtain Appellate Review of the Denial of a Motion To Disqualify a Judge Is by Writ of Mandate Filed within 10 Days of Notice of the Decision.

In 1984, the provisions of Title 2, chapter 3 of the Code of Civil Procedure, which deal with the disqualification of judges, were substantially overhauled by the Legislature. (See Stats.1984, ch. 1555, §§ 1 et seq., pp. 5479-5484.) The Legislature adopted various changes to the substantive grounds on which a party could challenge a judge "for cause" (see 2 Witkin Cal.Procedure (3d ed. 1985) Courts, §§ 79-100, pp. 95-117); adopted procedural rules for asserting and resolving "for cause" challenges at the trial court level (see § 170.3, subds. (a) through (c)); and adopted a limitation on appellate review of disqualification determinations. Regarding appellate review, the Legislature declared: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate ... sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding." ( § 170.3, subd. (d), emphasis added.)

The language of the statute is plain and unambiguous: A party may only seek appellate relief from the improper denial of a motion to disqualify a judge by a timely petition for mandamus. At least one court has held that because the unambiguous language of section 170.3, subdivision (d), demonstrates a clear legislative intent to make mandamus the exclusive remedy for such errors, such errors are not grounds for reversal on appeal. (People v. Jenkins (1987) 196 Cal.App.3d 394, 402-404, 241 Cal.Rptr. 827.) The Jenkins court (dealing with a challenge for cause) concluded mandamus was the exclusive remedy based on both the statutory language and on the legislative history which evidenced an intent to make this remedy exclusive. (Id. at p. 404, 241 Cal.Rptr. 827.)

We believe Jenkins correctly analyzed the statutory language, and the underlying legislative history, and we therefore conclude that section 170.3, subdivision (d) prescribes the exclusive avenue of appellate relief to a party who is aggrieved by the allegedly erroneous denial of his motion to disqualify a judge. ²

B. The 10-Day Limitation Applies to Motions Under Section 170.6.

Guedalia argues that section 170.3, subdivision (d)'s 10-day time limitation for seeking mandamus relief does not apply to peremptory challenges under section 170.6, relying on Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818. For several reasons, we conclude the 10-day limitation is applicable to any motion to disqualify a judge, whether the challenge is peremptory or "for cause," and we therefore disagree with Woodman.

First, the plain language of section 170.3, subdivision (d) does not purport to limit its applicability to challenges "for cause." To the contrary, it is broadly applicable to any "determination of the question of the disqualification of a judge...." It is a paramount canon of statutory construction that statutes should be given effect according to the usual and ordinary import of the words used in the statute. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658, 147 Cal.Rptr. 359, 580 P.2d 1155.) The broad language plainly evinces an intention that section 170.3, subdivision (d) has generic applicability to all disqualification motions, including section 170.6 motions.

Moreover, various parts of a statutory scheme should be construed in the context of the statutory framework as a whole. (Palos Verdes, supra, 21 Cal.3d at p. 659, 147 Cal.Rptr. 359, 580 P.2d 1155.) Here, section 170.3, subdivision (d) is part of the provisions of Title 2, chapter 3 of the Code of Civil Procedure. That chapter deals exclusively with questions of disqualification of judges, and encompasses within its ambit two kinds of disqualification determinations: "for cause" and "peremptory" determinations. Because section 170.3, subdivision (d) is part of this statutory scheme, its limitation on appellate review of disqualification determinations appears fully applicable to any disqualification motions within the ambit of chapter 3, including motions under section 170.6.

The Woodman court reached a contrary conclusion based on its review of the legislative history. Our review of that same legislative history, however, reveals no intention to exclude section 170.6 determinations from the appellate review provisions enacted by the Legislature. While Woodman placed great significance on the legislative statement that the 1984 bill "would not amend that section [i.e., section 170.6]" (196 Cal.App.3d at p. 407, 241 Cal.Rptr. 818, emphasis omitted), our review of the context of that statement convinces that the reference simply stated the obvious: that the 1984 legislation did not intend to abrogate the substantive right to (or the trial court procedures for interposing) a peremptory challenge, but was instead directed toward substantive and trial court procedural reforms of "for cause" challenges. Our conclusion that appellate relief limitations are applicable to peremptory challenges does not contravene the legislative history, since application of appellate relief limitations leaves untouched the substantive and trial court procedural aspects of peremptory challenges.

Our second reason for concluding the 10-day limitation is applicable to section 170.6 motions rests on our belief that the policies underlying section 170.3, subdivision (d) are equally applicable to "for cause" and peremptory challenges. When a disqualification motion is erroneously denied, any subsequent orders and proceedings by the disqualified judge have been characterized as "void for want of jurisdiction." See, e.g., Brown v. Swickard (1985) 163 Cal.App.3d 820, 209 Cal.Rptr. 844, 831. ³ Section 170.3, subdivision (d), by requiring a dissatisfied litigant immediately to pursue appellate review, fosters judicial economy by eliminating the waste of time and money which inheres if the litigation is permitted to continue unabated, only to be vacated on appeal because the subsequent rulings and judgment were declared "void" by virtue of the erroneously denied disqualification motion. The court in People v. Jenkins, supra, 196 Cal.App.3d 394, 241 Cal.Rptr. 827, reviewed the legislative history of 170.3, subdivision (d), and concluded section 170.3, subdivision (d) was designed with this objective in mind: "The Legislature...