Zilog v. Superior Court of Santa Clara County

• Decision Date: 07 February 2001
• Citation: 86 Cal.App.4th 1309,104 Cal.Rptr.2d 173
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 6 Dist. 2001) ZILOG, INC., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; PACIFIC INDEMNITY COMPANY et al., Real Parties in Interest. H021144 Filed

104 Cal.Rptr.2d 173 (Cal.App. 6 Dist. 2001)

ZILOG, INC., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; PACIFIC INDEMNITY COMPANY et al., Real Parties in Interest.

H021144

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Filed 2/7/01

(Santa Clara County Super.Ct.No. CV759665)

Trial Court: Santa Clara County Superior Court, Superior Court No. CV 759665, Trial Judge: Hon. William J. Elfving, Attorneys for Petitioner: Pillsbury Wintrop, Stephen Stublarec, John M. Grenfell, Brent W. Brougher, Margaret S. Schroeder, No appearance for Respondent, Attorneys for Real Parties in Interest: Nelson, Thompson, Pegue & Thornton, Romain O. Nelson, Ropers, Majeski, Kohn & Bentley, Richard M. Williams, Dean A. Pappas, Attorneys for amicus curiae on behalf of Real Parties in Interest: Ann Miller Ravel, County Counsel, Laurie F. Faulkner, Lead Deputy County Counsel, David Kahn, Deputy County Counsel, Winifred Botha, Deputy County Counsel

CERTIFIED FOR PUBLICATION

Wunderlich, J.

I. INTRODUCTION

In this original proceeding, we consider which statutory time limits are applicable to a Code of Civil Procedure section 170.6¹ peremptory challenge to a judge sitting in a trial court which has attributes of both a direct calendar court and a master calendar court. Resolution of this issue is critical to determining whether the peremptory challenge filed by Zilog, Inc. (Zilog) was properly denied as untimely on the grounds that in a direct calendar court, Government Code section 68616, subdivision (i), requires that the peremptory challenge be filed no later than 15 days after the judge's assignment or a party's first appearance. Zilog contends that Government Code section 68616, subdivision (i), is inapplicable, because respondent court is not a direct calendar court, and therefore its peremptory challenge was timely filed within the applicable time limit set forth in section 170.6, subdivision (2). Zilog also contends that an order the trial court made regarding a summary adjudication motion is void because the trial court made the order after improperly denying the peremptory challenge. We agree with Zilog's contentions. Accordingly, we will issue a peremptory writ directing respondent court to vacate its order denying the peremptory challenge as well as its subsequent order regarding the summary adjudication motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

This insurance coverage dispute arises from the refusal of Pacific Indemnity Company (Pacific) to defend and indemnify its policyholder, Zilog, in a toxic tort action filed against Zilog in the federal district court in Idaho. After the Idaho action was resolved by settlement, Zilog filed a declaratory relief and insurance bad faith action against Pacific in Santa Clara County Superior Court. During the course of the superior court litigation, this matter has been handled by several judges. In August 1998, the Honorable Donald L. Clark heard and denied Pacific's motion for summary adjudication of its duty to defend. Subsequently, the Honorable William J. Elfving was assigned as case management judge in January 1999.

Respondent court advises that Judge Elfving is a case management judge who has been assigned for all purposes except trial. As case management judge, Judge Elfving presided over the next round of summary adjudication motions, which included Pacific's second motion for summary adjudication of its duty to defend. Zilog responded to the second motion by filing an ex parte application for an order summarily denying or striking Pacific's motion on the grounds that the motion improperly sought reconsideration of Judge Clark's August 1998 order denying Pacific's first summary adjudication motion. Judge Elfving heard the ex parte application and determined that it should be filed and heard as a regularly noticed motion. Zilog then filed a motion captioned "Motion for Order Denying Pacific's Motion for Summary Adjudication or, in the Alternative, Transferring the Motion to the Honorable Donald L. Clark for Hearing." This unique motion (hereafter referred to as motion for order denying Pacific's summary adjudication motion) was set for hearing before Judge Elfving on February 10, 2000. However, before the motion could be heard, Zilog filed a peremptory challenge to Judge Elfving.

B. Zilog's Section 170.6 Peremptory Challenge

On January 28, 2000, Zilog filed a section 170.6 peremptory challenge of Judge Elfving. Pacific filed written opposition to the peremptory challenge, arguing that the challenge should be denied because it was untimely. Pacific asserted that the Santa Clara County Superior Court operates as a direct calendar court subject to Government Code fast track rules, including the time limit for peremptory challenges set forth in Government Code section 68616, subdivision (i). That subdivision, Pacific pointed out, has been construed to require a peremptory challenge to be filed no later than 15 days after the assignment of a direct calendar judge. Therefore, because more than 15 days had passed since Judge Elfving was assigned to the case as a direct calendar judge, Pacific argued that Zilog's peremptory challenge was untimely.

Zilog filed points and authorities in support of its peremptory challenge, contending that the trial court was not a direct calendar court within the meaning of Government Code section 68616, subdivision (i), because its judges are not assigned for all purposes including trial. Zilog asserted that the applicable time limit was set forth in the Code of Civil Procedure, not the Government Code. Specifically, Zilog maintained that its challenge was timely under the 10-day/5-day rule provided by section 170.6, subdivision (2), because it was filed on January 28, 2000, more than 5 days before the February 10, 2000 hearing on Zilog's motion for denial of Pacific's second motion for summary adjudication.

Judge Elfving heard argument concerning the timeliness of Zilog's peremptory challenge on February 8, 2000. He concluded that the challenge was untimely under Government Code section 68616, subdivision (i), because "[t]his court has a calendar system which is really more analogous to and has more of the attributes and features of a direct calendar system. [] Judges such as myself, the other case management judges . . . hear everything but trials. The purpose of this is to get a judge up to speed so that they don't have to reinvent the wheel every time a new motion or new matter comes up." Additionally, Judge Elfving explained, "The whole public policy, as the court sees it, is to prevent judge shopping. I have invested considerable time, I have made some rulings. . . . I think the public policy is behind the court in preventing this sort of late in the game challenge of a judge because they don't like the way things might be going."

Based on this reasoning, Judge Elfving denied Zilog's peremptory challenge in a written order filed February 9, 2000. Then, on February 10, 2000, Judge Elfving proceeded to hear and deny Zilog's motion for denial of Pacific's summary adjudication motion. A written order denying the motion was filed February 14, 2000. Thereafter, Zilog sought extraordinary relief from both the order denying its peremptory challenge and the order denying Zilog's motion for denial of Pacific's summary adjudication motion, by way of a petition for writ of mandate filed in this court. We issued an alternative writ and order to show cause why the relief sought should not be granted, and imposed a temporary stay on trial court proceedings.

III. DISCUSSION

A. Writ Relief Is Available

"The determination of the question of disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding." ( 170.3, subd. (d).) ² The standard of review for an order granting or denying a peremptory challenge is abuse of discretion. A trial court abuses its discretion when it erroneously denies as untimely a motion to disqualify a judge pursuant to section 170.6. (See, e.g., City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 584.) In the present case, we find that petitioner's writ petition was timely filed and, for the reasons discussed below, we conclude that the trial court abused its discretion when it denied petitioner's section 170.6 peremptory challenge as untimely.

B. The Statutory Time Limits for Filing a Peremptory Challenge

"Section 170.6 permits a party to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body." (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4.) Thus, "[w]here disqualification motion is timely filed and in proper form, the trial court is bound to accept it without further inquiry." (Ibid.) Disqualification is required "even if the court suspects that the party has abused its right to utilize section 170.6." (La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1505.) The various time limits for filing a section 170.6 peremptory challenge are set forth in both the Code of Civil Procedure and the Government Code.

1. Time Limits Under Code of Civil Procedure Section 170.6

The rules for timely filing of a section 170.6 peremptory challenge are set forth in subdivision (2) of section 170.6, and were clarified by the California Supreme Court in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164 (hereafter, Lavi). The Supreme Court stated, "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." (Lavi, supra, 4 Cal.4th at p. 1171.) However, the court recognized that section 170.6, subdivision (2), includes three express exceptions to the general...