Lorch v. Superior Court, No. D083609 (D4d1 May 16, 2024)
This writ case concerns the timeliness of a challenge to the assignment of a trial judge under Code of Civil Procedure § 170.6.
In the event there are any non-lawyers who read this blog—which I guess is possible*—§ 170.6 lets a party file a declaration, once in a case, that says “the judge is prejudiced against me.” And that has the effect, whether the claim is true or not, of automatically reassigning the case to a new judge. It is an important procedure in California state court litigation. But since it is the kind of thing that can be abused, it has pretty strict limitations about both how often and when it can be used.
The timing of a § 170.6 depends on the way the court assigns its judges.** Some courts (mostly courts in NorCal, including SF Superior) use a master calendar system. In that system, you are never assigned a judge until trial. There are various judges who do specific pre-trial stuff—discovery, law and motion, etc. But then when you are ready for trial you go to the “master calendar” department—typically Department 1—and there’s a messy cattle call as cases are sent out to trial departments for trials, usually to begin almost immediately. In a master calendar system, you need to paper the judge as soon as you get the assignment. Like, on the spot, to the master calendar judge, live in Department 1. In the master calendar setup, a delay of a few hours will doom your challenge.
Other courts—including most civil cases in SoCal***—use an independent calendar system, where you get assigned a judge to do your case from the very beginning. In an IC system, you have 15 days to strike the judge after being informed of the assignment. In that system, if you get a late transfer to a new judge for trial, so long as the transfer is at least 10 days before trial, you need to strike at least 5 days before the trial date.
But in all events, and under any system, you need to take your strike before the onset of trial.
This case comes out of San Diego Superior, which is mostly an IC court. But SD Superior has a weird local rule that gives individual departments the authority to transfer cases, and it says in doing so, they are acting in a master calendar capacity. Which is an odd hybrid that makes the § 170.6 timing issues very confusing.
So here, the parties are in front of Judge #1, who doesn’t have time to try their case. (Based on the parties, it appears to be a Lemon law case, but the opinion isn’t super clear on that point.) On a Friday morning, Judge #1 tells the parties that they need to come back for a trial call on Monday at 1:30, when he would tell them where they were being transferred to for trial. But later that day, the court clerk calls Plaintiff’s attorney and tells her they are going to be transferred for trial to Judge #2. An hour later, Judge #1 entered a minute order to that effect, but it wasn’t served**** on the parties.
Over the weekend, Plaintiff’s counsel e-files a strike, but she mistakenly checks the box that the client, instead of the attorney, is filing the required affidavit. About an hour beforehand, the parties learn they need to appear before Judge #2, not Judge #1, at 1:30 on Monday. Just before the hearing, Judge #2 issues an order rejecting Plaintiff’s challenge as untimely and “not in proper form.”
The parties appear at 1:30 and Plaintiff raises the strike. Judge #2 informs them about the checkbox error and that the challenge was also denied as untimely under the master calendar rule. On Monday night Plaintiff’s counsel files a corrected form. The parties come back Tuesday and the judge informs them that the corrected form is nonetheless untimely under the master calendar rule. He denies a stay for plaintiff to take writ.
Trial begins later that day. The court’s action was so surprising that nobody has a court reporter. The following day—apparently during trial—Judge #2 signe an order denying the corrected challenge as untimely. The jury renderes a defense verdict the next day, and Judge #2 entered judgment for the Defendant.
Plaintiff takes a writ within the ten-day window to challenge the denial of a judicial disqualification under § 170.3(d). The Court of Appeal issues an OSC.
The only real fight Defendant puts up is to the timing of the writ. Although it was timely under § 170.3(d), Defendant says waiting till after trial gives rise to laches. But the Court of Appeal doesn’t buy it. There’s no unreasonable delay. The idea that Plaintiff’s counsel was going to draft and file a writ petition in a day, on a completely unexpected issue, while trying a case to a jury, is not something to fairly expect of a litigant. So even if laches could apply to a filing within the ten-day window, it wouldn’t apply here.
As to timing issue, the Court notes that, subject to the specific day-based limits in the code, the only time limit in § 170.6 requires the challenge to be filed before a trial or contested hearing begins. The only exception relevant here is the master calendar rule. But the master calendar rule is premised on the parties being live in court, in front of the master calendar judge, when the assignment is made. Under established precedent, see Stevens v. Superior Court, 52 Cal.App.4th 55, 57 (1997), an assignment delivered on a call from court staff is inadequate to give rise to the very time delimited rule applicable to master calendar assignments.
The Court also notes in a footnote that a party should be permitted to correct a technical error in a § 170.6 affidavit, such as the checkbox error made by counsel here.
So far as the local rule that effectively deems every reassignment in San Diego as a master calendar assignment, that runs headlong into Supreme Court precedent that says a “court may not subject every case assignment to the master calendar rule of section 170.6 simply by labeling the assigning court a ‘master calendar department.’” See People v. Superior Court, 4 Cal.4th 1164, 1171 (1993). If you are going to do master calendar, do master calendar. But a “local court rule may not alter the true meaning of the statute by effectively deputizing every judge of the court to act as a master calendar judge.” So the rule is invalid.
And because the strike should have been permitted, everything Judge #2 did afterwards was null and void. So Plaintiff gets a new trial, in front of a new judge.
Writ granted.
*Google has basically bailed on blogging support. So I have no idea who reads this. At this point, I might be writing a public diary about civil procedure. Which, I must admit, is a pretty weird thing to do. Are you there Bernie Witkin? It's me, Mike!
**In typical California fashion, there’s no statutory scheme that actually lays out these options. They just appear to have developed over time in different courts locally, and then § 170.6 was amended to conform to the various options.
***Some courts have master calendar for certain kinds of cases only. For instance, for the past several years, non-complex personal injury cases have used a master calendar system in LA Superior.
****The fact that there isn’t any uniform system where superior courts serve the parties with orders electronically, is, in all candor, a f*cking disgrace. I don’t think there is anywhere else in the world where courts don’t serve orders by some electronic means. But in California, while some departments manage to do it sort of ad hoc, others stick to the slowest mail in the universe. (I get birthday cards from my mom in Pennsylvania in two days, so I am completely baffled how an order sent by first class mail takes two weeks to travel the five blocks from Stanley Mosk to my office. But that happens all the time.) And some courts—looking at you Alameda!—don’t bother to serve orders at all.