People v. Superior Court (Lavi)

• Decision Date: 01 April 1993
• Docket Number: No. S022419,S022419
• Citation: 4 Cal.4th 1164,17 Cal.Rptr.2d 815
• Parties: , 847 P.2d 1031 The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Yahya LAVI, Real Party in Interest.
• Court: California Supreme Court

Page 815

17 Cal.Rptr.2d 815

4 Cal.4th 1164, 847 P.2d 1031

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Yahya LAVI, Real Party in Interest.

No. S022419.

Supreme Court of California,

In Bank.

April 1, 1993.

As Modified May 13, 1993.

Ira Reiner, Dist. Atty., Maurice H. Oppenheim, Robert W. Carney, Arnold T. Guminski, Donald J. Kaplan and Brentford J. Ferreira, Deputy Dist. Attys., for petitioner.

Wilbur F. Littlefield, Public Defender, Los Angeles, and John Hamilton Scott, Deputy Public Defender, as amici curiae on behalf of petitioner.

De Witt W. Clinton, County Counsel, and Frederick R. Bennett, Asst. County Counsel, for respondent.

Gerald L. Chaleff and Audrey Winograde, Santa Monica, for real party in interest.

LUCAS, Chief Justice.

This case concerns the appropriate time to file a motion to disqualify a judge pursuant to Code of Civil Procedure section 170.6 (all further statutory references are to this code unless otherwise indicated). ¹ The primary issue may be stated as follows: When a master calendar department assigns a case to a "long cause" criminal trial department ² for "trial setting," which, if any, of section 170.6, subdivision (2)'s timeliness requirements (the "master calendar" rule, the "all purpose assignment" rule, or the "10-day/5-day" rule) for making motions under that statute apply? We hold that because respondent court's master calendar department did not operate as a true master calendar, the master calendar rule did not apply. We also hold that petitioner's section 170.6 challenge was timely under either of the remaining rules.

I. Facts

Real party in interest, Yahya Lavi, is charged with multiple sex offenses. Initially, his case was assigned to department 112 of the Los Angeles County Superior Court, where various pretrial motions were heard. On June 27, 1991, the case was transferred from department 112 to department 100, the criminal master calendar department, Judge Klausner presiding. On July 17, counsel for both sides appeared before Judge Klausner to have a trial date assigned, and both indicated that September 23 or 30, 1991, would beacceptable. Judge Klausner transferred the case to department 104, designated a "long cause" department, in which Judge Trammell presides. ³ Judge Klausner asked: "This is 20 [days] of 60 today, ⁴ is that correct?" After receiving an affirmative response and confirming that both parties were desirous of securing a trial date, the judge stated: "This matter will be transferred to Department 104 for tomorrow for setting, counsel. It will be 21 [days] of 60, and you can arrange with the court down there the trial date." (Italics added.) Rather than immediately challenging Judge Trammell, the People waited until later in the afternoon, after the conclusion of the hearing, to file their motion to disqualify him.

On July 18, 1991, Judge Trammell rejected the People's section 170.6 challenge. He ruled that because the case had already been transferred from the master calendar department at the time the challenge was made, it was untimely under section 170.6, subdivision (2)'s dictate that, "If directed to the trial of a cause where there is a master calendar, the [disqualification] motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial." (Italics added.) On July 29, the People filed a petition for a writ of mandate in the Court of Appeal challenging Judge Trammell's ruling; the petition was summarily denied.

On August 12, 1991, the People filed a petition for review. On September 26, we granted the petition and transferred the matter to the Court of Appeal with directions to vacate its order denying the writ and to issue an alternative writ. On January 23, 1992, the Court of Appeal again denied the petition, holding that the master calendar rule (discussed post ) rendered the section 170.6 challenge untimely. On January 31, 1992, the People filed a second petition for review, which we granted. As will appear, we conclude the People's motion under section 170.6 was timely, and that the Court of Appeal judgment should be reversed.

II. Discussion

A. Overview

As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing. (Shipp v. Superior Court (1992) 5 Cal.App.4th 147, 150, 6 Cal.Rptr.2d 685; Los Angeles County Dept. of Public Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 412, 138 Cal.Rptr. 43.) If the general rule applies, petitioner's challenge is timely. Subdivision (2) of section 170.6, however, establishes three exceptions to the general rule, namely, the "10-day/5-day" rule, the "master calendar" rule, and the "all purpose assignment" rule.

Section 170.6, subdivision (2) states, in pertinent part: "Where the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date [hereafter, the 10-day/5-day rule]. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial [hereafter, the master calendar rule]. If directed to the trial of a cause which 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 [hereafter, the all purpose assignment rule].... In no event shall any judge, court commissioner, or referee entertain the motion if it be made after the drawing of the name of the first juror, or if there be no jury, after the making of an opening statement by counsel for plaintiff, or if there is no such statement, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced.... In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be."

Thus, for any given factual scenario, it must be determined whether any of section 170.6, subdivision (2)'s pertinent exceptions (the 10-day/5-day rule, the master calendar rule, or the all purpose assignment rule) are applicable, or whether the general rule (the commencement of trial rule) should apply. As will appear, we conclude that the master calendar rule was inapplicable here, and that the People's challenge was timely under any of the remaining rules. We first discuss the master calendar rule, and then address the all purpose assignment rule and the 10-day/5-day rule.

B. The Master Calendar Rule

The master calendar rule of section 170.6, subdivision (2) requires disqualification motions be filed "not later than the time the cause is assigned for trial" by a "master calendar." If that rule applied here, petitioner's challenge would be deemed untimely because it was made several hours after the initial assignment.

Petitioner contends that because the master calendar court assigned the case for trial setting, rather than for immediate trial, no assignment for trial by a judge supervising the "master calendar" occurred, and thus the master calendar rule should not apply. Respondent court argues the case was assigned for trial by a master calendar judge, and that Judge Trammell's identity was known with sufficient certainty to apply the master calendar rule.

The Court of Appeal agreed with respondent. It declined to construe the statutory phrase "assigned for trial" as containing an immediate trial requirement, as contended by petitioner, and it did not examine the nature of a true master calendar. Furthermore, relying on Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818 (Woodman ), and Augustyn v. Superior Court (1986) 186 Cal.App.3d 1221, 231 Cal.Rptr. 298 (Augustyn ), the court held that a section 170.6 challenge must be made as soon as the assigned judge's identity is known with reasonable certainty. The Court of Appeal ruled that, given the unique nature of respondent's "long cause" trial system, Judge Trammell's identity was known at the time Judge Klausner transferred the case to department 104. The court reasoned that the People should have made their challenge at that time, and that their failure to do so rendered their later motion untimely. ⁵

As we will explain, we find Woodman, supra, 196 Cal.App.3d 407, 241 Cal.Rptr. 818, and Augustyn, supra, 186 Cal.App.3d 1221, 231 Cal.Rptr. 298, inapplicable. Moreover, although there was sufficient assurance that Judge Trammell would sit in the assigned "long cause" department, department 104, the master calendar rule does not apply because here, the master calendar department was not managing a true master calendar by assigning ready cases to departments for trial.

At the initial hearing before Judge Klausner on July 17, 1991, the court stated: "This matter will be transferred to Department 104 for tomorrow for setting, counsel." (Italics added.) As a preliminary matter, although Judge Klausner did not specifically name the judge who sat in department 104, the People have conceded knowledge that Judge Trammell was assigned to this department. Thus, it would not be unfair to invoke the master calendar rule if its requirements are met. ⁶

Was the case assigned for trial by a judge supervising the "master calendar" within the meaning of the master calendar rule? We first note that the fact that Judge Klausner's department is labeled a "master calendar" court, although persuasive, is not conclusive. (See Shipp v. Superior Court, supra, 5 Cal.App.4th at p. 152, 6 Cal.Rptr.2d 685.) A court may not subject...