Manuel C. v. Superior Court

• Decision Date: 26 January 2010
• Docket Number: No. B220163.,B220163.
• Citation: 181 Cal.App.4th 382
• Court: California Court of Appeals Court of Appeals
• Parties: MANUEL C., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

181 Cal.App.4th 382

MANUEL C., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

No. B220163.

Court of Appeals of California, Second District, Division Four.

January 26, 2010.

Law Offices of Alex Iglesias, Steven D. Shenfeld and Wendy Kingston for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

OPINION

EPSTEIN, P. J.

By petition for writ of mandate, father Manuel C. challenges the juvenile court's denial of his peremptory challenge on the ground that it was untimely pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2).¹ We hold that once the juvenile court terminates jurisdiction over a dependent child, a subsequent case involving the same child and parent is a new matter for purposes of the time limits for filing a section 170.6 motion. For this reason, we grant the requested relief.

FACTUAL AND PROCEDURAL SUMMARY

In January 2009, a Welfare and Institutions Code section 300 petition was filed on behalf of Aura P.'s three children: two daughters, ages 17 and 12, and one son, Manuel C., Jr., age 5. Petitioner was found to be the presumed father of Manuel C., Jr., and was thus a party to that action. The case was assigned to Referee Stephen C. Marpet for all purposes, and it remained in his courtroom until Referee Marpet terminated dependency jurisdiction as to the three children with a family law exit order on October 7, 2009. Petitioner and mother were given joint legal custody of Manuel C., Jr., with physical custody to mother and unmonitored visitation to petitioner.

On October 30, 2009, a new Welfare and Institutions Code section 300 petition was filed on behalf of the same children, alleging in part that petitioner sexually abused mother's 12-year-old daughter. The matter was assigned the same case number as the previously terminated case involving the same children, and it was assigned to Referee Marpet.

That same day, petitioner filed his section 170.6 peremptory challenge, asking that Referee Marpet recuse himself. Referee Marpet denied the motion as untimely, explaining: "This case was assigned to me in January of 2009, and the parties made their first appearance on that date. Since more than ten days have elapsed since both of these dates, the motion is deemed untimely." Petitioner brought this petition for writ of mandate, seeking an order directing the juvenile court to accept the section 170.6 peremptory motion for disqualification and transfer the case to another court for further proceedings. We stayed all further proceedings, and issued an order to show cause. In response, the Los Angeles County Department of Children and Family Services filed a letter brief declining to take a position. We now lift the stay and grant the requested relief.

DISCUSSION

(1) The relevant portion of section 170.6, subdivision (a)(2) provides that if a peremptory challenge is "directed to the trial of a cause that 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 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance."

(2) "A peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action." (Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1493 ; see also Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1099 [time limits in § 170.6, subd. (a)(2) apply only "in the same case as the one in which the peremptory challenge is filed, including any `continuation' of the main proceeding"].) "A subsequent proceeding is a continuation of an earlier action ... if it involves `"substantially the same issues"' and `"matters necessarily relevant and material to the issues involved in the [prior] action."'" (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 589 .)

In Bravo v. Superior Court, supra, 149 Cal.App.4th 1489, the court considered whether a second case between the same parties was a continuation of an original case which had been dismissed after a demurrer was sustained without leave to amend. The original case alleged employment discrimination based on conduct occurring between 1999 and April 2004. After judgment was entered against the employee, he filed a second action against the employer based on conduct occurring between May 2004 and June 2004. The employer filed a notice of related cases, and the case was assigned for all purposes to the same judge who had heard the original case. The employee filed a section 170.6 challenge, which was denied as untimely because the second action was a continuation of the first. The Court of Appeal reversed: "The fact that the cases are related does not resolve the issue of whether the second case is a continuation of the first case for purposes of section 170.6. Here, although the two cases involve the same employee and the same employer, the current action arises out of later events distinct from those in the previous action. Therefore, the current action does not constitute a continuation of the previous action and plaintiff's peremptory challenge is timely." (149 Cal.App.4th at p....