NEWS INC v. PEOPLE

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Court of Appeal, Second District, Division 7, California.

B & I NEWS, INC., Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

No. B068722.

Decided: October 14, 1993

Roger Jon Diamond, Santa Monica, for petitioner. De Witt W. Clinton, County Counsel, and Frederick R. Bennett, Asst. County Counsel, for respondent.

In accordance with the directions of the California Supreme Court, we vacate our February 18, 1993, opinion in the instant matter and reconsider the cause in light of People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 17 Cal.Rptr.2d 815, 847 P.2d 1031.

Applying Lavi, we hold that in transferring the instant matter to Judge Dion G. Morrow in Department 57 for trial on May 4, 1992, the Department 1 supervising judge acted as a master calendar judge by assigning a “ready case to a ready courtroom.”  (People v. Superior Court (Lavi), supra, 4 Cal.4th 1164, 1177, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)   Accordingly, petitioner's motion to disqualify Judge Morrow under Code of Civil Procedure 1 section 170.6, not filed until July 21, 1992, was untimely.

We deny petitioner's application for a writ of mandate.

PROCEDURAL BACKGROUND

On March 27, 1989, the Los Angeles City Attorney filed the instant complaint for injunction and abatement alleging petitioner had violated the Red Light Abatement Law.

The case was set for trial in Department 1 of the Los Angeles County Superior Court on April 27, 1992.   On that date the parties appeared, estimated the court trial would take four to fifteen days, and announced “ready for trial.”   The court transferred the case for trial, stating:  “This case is being assigned out on May 4․   All right, next Monday, May 4, 1992, Judge Morrow, that's Dion Morrow, Department 57 at 8:30.” 2

Although, on April 27, 1992, the subject of petitioner filing a section 170.6 or section 170.1 disqualification motion against Judge Morrow was discussed by petitioner and the Department 1 supervising judge, no motion was filed.

The next day, April 28, 1992, petitioner filed with the superior court a motion to disqualify Judge Morrow for cause.  (§ 170.1, subd. (a)(6)(C).) 3

On May 4, 1992, Judge Morrow timely filed a written verified answer denying petitioner's allegations.  (§ 170.3, subd. (c)(3)).   The motion was transferred to Orange County Superior Court Judge Theodore E. Millard who on July 9, 1992, denied petitioner's motion.

On July 17, 1992, Judge Morrow reset the matter in his Department for trial on August 13, 1992.

On July 21, 1992, petitioner filed a motion to disqualify Judge Morrow pursuant to section 170.6.4  Judge Morrow denied the motion as untimely.

Petitioner filed the instant petition (§ 170.3, subd. (d)) and this court issued an alternative writ.

On February 18, 1993, this court denied the petition for a writ of mandate.

On May 13, 1993, our Supreme Court issued the following order:

“Petition for review GRANTED.   The cause is transferred to the Court of Appeal, Second Appellate District, Division Seven, with directions to vacate its opinion and to reconsider the matter in light of People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164 [17 Cal.Rptr.2d 815, 847 P.2d 1031].”

DISCUSSION

Section 170.6 requires that disqualification motions “[i]f 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.”  (Emphasis added.)

 It is undisputed the section 170.6 motion was made “later than the time the cause [was] assigned for trial” and not made to the supervising judge but to the trial judge.

We consider two reasons why the section 170.6 motion might, nevertheless, have been timely filed.

1. Did petitioner have separate and “cumulative” rights under Section 170.6 and 170.1?

Petitioner argues that the right to disqualify judges peremptorily (§ 170.6) and for cause (§ 170.1) are “cumulative” rights and the legislature could not have intended that by exercising one, a party forfeited the other.

Petitioner is mistaken.   The “rights,” although “cumulative,” (§ 170.6, subd. (7)), are statutory.   Their size and duration are statutorily defined.   Had the legislature intended to insure that peremptory and for cause disqualifications could both—always—be exercised, it would have been a simple matter to say so.   It did not.

Section 170.6 contains no exemption for the exercise of a section 170.1 motion and we decline to create one.

Petitioner's reliance upon Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 147 Cal.Rptr. 44 is misplaced.  Pacific holds that a party need not first exercise a section 170.6 motion in order to make a section 170.1 motion.   It does not hold that by making such a 170.1 motion one is somehow later exempted from the requirements of section 170.6.

Arguably, dictum in Waldon v. Superior Court (1987) 196 Cal.App.3d 809, 814–815, 241 Cal.Rptr. 123 does suggest such an exemption.   However, Waldon emphasizes that petitioner, after filing a section 170.3 challenge for cause, reserved his right to file a section 170.6 challenge and the prosecution conceded the timeliness of the section 170.6 motion.   The holding of Waldon is unclear.   If Waldon dictum suggests a section 170.6 timeliness exemption, we disagree for the reasons we have stated.

2. “Was the case assigned for trial by a judge supervising the ‘master calendar’ within the meaning of the master calendar rule?”  (People v. Superior Court (Lavi), supra, at p. 1175.)

As Lavi instructs, “we must look beyond the ‘master calendar department’ label and determine whether a given method of assigning cases effectuates the function and purpose of the master calendar rule before we can conclude that an assignment from a ‘true’ master calendar has occurred for the purposes of section 170.6.”  (Ibid.)

 The test of a master calendar department is whether a “ ‘ready case is assigned to a ready department.’ ”  (Id., 4 Cal.4th at p. 1176, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

In Lavi the assignment of the case to a trial department was not from a “master calendar” because “the case was not ready for trial on the day of the assignment and it was not assigned to a ready department, ․ [i]n fact, no trial date had even been selected.”  (Id. at p. 1177, 17 Cal.Rptr.2d 815, 847 P.2d 1031.   Original emphasis.)

By contrast, in the instant matter the case was ready for trial.   On April 27, 1992, when the supervising judge in Department 1 called the case both sides announced “ready.”   Accordingly, it was a “ready case,” within the meaning of Lavi, that was assigned to Judge Morrow in Department 57.

The remaining question is whether the assignment of the “ready case” was to “a ready courtroom.” 5  As we earlier noted, on April 27th the instant matter was not assigned “forthwith” to Department 57 because the judge in that department, Judge Morrow, was on vacation.   In fact, as we view the record, no assignment occurred on April 27th.   In the words of the Department 1 judge:  “This case is being assigned out on May 4․   All right, next Monday, May 4, 1992, Judge Morrow.   That's Dion Morrow, Department 57 at 8:30.”

So far as the record shows, and petitioner does not contend otherwise, Judge Morrow, in Department 57, was available on May 4, 1992, to commence trial in the instant matter and, but for the section 170.1 disqualification motion, would have done so.

Accordingly, since on May 4, 1992, a ready case was assigned to a ready department, a section 170.6 motion, to be timely, had to be filed in the master calendar court (Department 1) “not later than the time the cause [was] assigned for trial.”  (§ 170.6.)   It was not.

DISPOSITION

The petition for a writ of mandate is denied.

I respectfully dissent.

The Supreme Court returned the original majority opinion in this court for us to reconsider in the light of People v. Superior Court (Lavi ) (1993) 4 Cal.4th 1164, 17 Cal.Rptr.2d 815, 847 P.2d 1031.   Although later in this dissent I renew the grounds argued in my initial dissent, Lavi provides a simpler, more straightforward reason for issuing the writ in this case.   So I begin there.

The Supreme Court could not have been clearer or more definitive in describing when an assignment from a master calendar judge qualifies for the “master calendar rule” thus depriving litigants of the ordinary time span to file peremptory challenges.  Lavi requires these “master calendar” assignments to be to a court prepared to commence trial immediately.   The high court conceded an assignment late in the afternoon to a court prepared to start trial the first thing the next morning might qualify as a “ready” court for purposes of the master calendar rule.   But here we have an assignment to a judge who is on vacation and will not even be in his courtroom until a week after the assignment is made.   This simply was not a “ready court” within the meaning of Lavi and consequently the “master calendar rule” does not apply.

The Supreme Court in Lavi explained the rationale for the “master calendar rule” and why it does not apply when a period of time will elapse between the assignment and the trial.   In a “true master calendar” assignment “ ‘it would be impractical to allow the litigant five days to consider the advisability of a disqualification motion, with the trial department ready and able to commence the trial forthwith.’ ”   But when a master calendar department “ ‘assign[s] a case to a trial department well in advance of the trial date,’ the rationale of the master calendar rule does not apply․”

(People v. Superior Court (Lavi), supra, 4 Cal.4th at p. 1175–76, 17 Cal.Rptr.2d 815, 847 P.2d 1031, quoting People v. Escobedo (1973) 35 Cal.App.3d 32, 110 Cal.Rptr. 550 (italics added in Supreme Court opinion).)

Here the master calendar judge assigned the case to the trial judge a full week in advance of the trial date.   It was by no means “impractical” for petitioner and its counsel to spend a few days considering the advisability of a disqualification motion while the assigned trial judge vacationed.   As it turns out, it only required one of those seven days for the petitioner to ponder this question and decide to file a motion to disqualify for cause.  (Indeed petitioner's counsel had announced to the master calendar judge at the time of the assignment that he probably would be filing a motion to disqualify this trial judge for cause and, if that motion failed, to file a peremptory challenge.)

In an effort to avoid this obvious problem under Lavi, the majority opinion holds the master calendar court did not make an assignment on April 27 for a trial to commence on May 4.   No, according to the majority opinion, what the court did on April 27 was make an assignment on May 4 for a trial to commence on May 4.   This construction, of course, would mean the “master calendar rule” would—or at least could—apply to any trial assignment a master calendar court made for trial in any other court at any time in the future.   If the master calendar court sitting on April 27, 1992, says a certain case is being assigned out on December 1, 1996, for trial by Judge X, the master calendar rule would apply.   This construction of the “master calendar rule” simply fails to square with the limited language and limited purpose of that rule.

In my opinion, our high court made it abundantly clear in Lavi that neither the language nor the rationale of the “master calendar rule” apply to the assignment the master calendar court made in this case.   Consequently, that rule does not control where and when petitioner must file its peremptory challenge under Code of Civil Procedure section 170.6.1

The majority opinion implicitly concedes that if the master calendar rule does not apply petitioner's disqualification motion was made to the proper court and in a timely fashion.   Presumably this is because my colleagues recognize petitioner was aware of the identity of the trial judge only seven not ten days before the initial trial date.   Consequently, the general rule not the 10/5 day rule governs.   As the Supreme Court pointed out in Lavi, “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.  [Citations.]”  (People v. Superior Court (Lavi ), supra, 4 Cal.4th at p. 1171, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)   There is no dispute petitioner filed its section 170.6 motion before trial commenced even though this was several months after the initial trial date and after completion of the proceedings on petitioner's motion to disqualify this same judge for cause.   Consequently, this motion satisfied the “general rule” which is the one which properly applies in this case and this court should issue a peremptory writ requiring the trial court to honor the section 170.6 challenge.

I go further in this dissent only because there exists an independent and sufficient ground for issuance of this writ, one which raises fundamental questions the Supreme Court has not yet resolved.   With respect to this ground, the salient point is not when the 170.6 clock started ticking but whether it stopped ticking while the courts decided petitioner's challenge for cause.   In my opinion, in construing this “remedial” statute to effectuate the avowed purpose peremptory challenges be “cumulative” to challenges for cause requires tolling of the time limits for invoking a peremptory challenge during the period needed to dispose of the challenge for cause.

As explained in another appellate opinion, “section 170.6 is a remedial statute in that it provides a procedure by which a litigant may peremptorily disqualify a judge whom the litigant believes to be biased against him.   Remedial statutes are to be liberally construed and ‘the modern trend of decisions [is] in favor of granting relief unless absolutely forbidden by statute [citations omitted].’ ”  (Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 414, 241 Cal.Rptr. 818.)

The relevant statutes do not “absolutely forbid” a party from exercising a peremptory challenge of a judge after filing and losing a challenge for cause.   Indeed to the contrary section 170.6 contains an express and explicit guarantee a party is to have the right to deploy both types of challenges.   “Nothing in this [peremptory challenge] section shall affect or limit the provisions of [the challenge for cause sections] and [the peremptory challenge section] shall be construed as cumulative thereto.”  (§ 170.6, subd. (7), italics added.)

It is apparent trial courts disobey this legislative command if they disallow a peremptory challenge after having considered and rejected a challenge for cause.

First, by doing so they “affect” and “limit” the ability of parties to invoke the challenge for cause procedure.   Unless the peremptory challenge clock is tolled by filing a challenge for cause, there is almost always a risk that the clock will run out before resolution of the challenge for cause.   Thus, in most situations parties will be unable to risk exercising their “right” to file a challenge for cause (unless and until, of course, they have already used a peremptory challenge on another judge).

Second, by disallowing a peremptory challenge brought after disposition of a challenge for cause, trial courts also fail to follow the instruction they “shall” construe the peremptory challenge as cumulative to the challenge for cause.   Black's law dictionary defines “cumulative” in the following terms:  “Additional;  ․ forming an aggregate.   The word signifies that two things are to be added together, instead of being a repetition or in substitution of the other.”  (See Black's Law Dict. (5th ed. 1979 p. 343, col. 1, italics added.)

By insisting the peremptory challenge be “cumulative to” the challenge for cause the Legislature made it clear the peremptory challenge is not to be an “alternative” remedy to a challenge for cause as to a given judge—that is, something that can be used “in substitution of” a challenge for cause.   Rather, the peremptory challenge is to be an “additional” remedy “to be added” together with the challenge for cause and when necessary deployed “cumulative to,” that is, in addition to, the challenge for cause as to a given judge.

It would be surprising if this were the first time an appellate judge reached this same conclusion about the clear mandate of section 170.6, subdivision (7).   And it is not.   As another appellate court observed in a somewhat different context:  “[P]olicy and sound reason dictate against requiring that a party exhaust the right to disqualify a judge peremptorily ․ before seeking vindication of the right to disqualify a judge for cause․   Such rights are not fungible.   Subdivision (7) of section 170.6 expressly provides ‘[n]othing in this section shall affect or limit the provisions of Section 170 ․ and this section shall be construed as cumulative thereto.’ ”  (Italics added in cited opinion.)  “Section 170.6 provides for disqualification of a judge without factual proof of prejudice.   As such, it provides an ‘ace in the hole,’ a means to disqualify a judge without the showing required by section 170, subdivision 5.   Its purpose would be undercut by now requiring petitioner to exhaust, in reality forfeit, that separate and distinct right before seeking vindication of the right to disqualify a demonstrably biased judge.   Such a remedy, which protects one right only at the sacrifice of another, is not adequate.”  (Pacific Etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 80, 147 Cal.Rptr. 44).

Along with the Pacific Methodist court I read the language of section 170.6, subdivision (7) as creating a second type of challenge, a second “right” to challenge if you will, which is “cumulative to” the “right” to challenge for cause if the latter is denied as to a given judge.   In essence, a party is entitled to “both” rights not “either one or the other” when seeking to challenge a judge.

The majority opinion disregards the legislative instruction the courts “shall construe” the peremptory challenge to be “cumulative to” the challenge for cause in favor of adhering religiously to the time provisions for filing peremptory challenges.   I would reconcile the commandment and the time provisions by tolling the latter while the courts resolve the challenge for cause.   That, I submit, effectuates the policies behind both.   When a party files the challenge for cause within the time frame required for a peremptory challenge, the court gains timely notice the party is challenging the trial judge assigned to hear the case.   Yet because that filing suspends the clock, time does not run out on the party's statutorily guaranteed cumulative right to exercise a peremptory challenge merely because it takes the courts a while to decide the challenge for cause.2

In essence, this is what the appellate court did in Waldon v. Superior Court (1987) 196 Cal.App.3d 809, 241 Cal.Rptr. 123.   There a party filed a challenge for cause.   True, the party coupled that challenge with an announcement to the court it “reserved the right to file a peremptory challenge” should the challenge for cause be denied.   But there is no provision in the statute for such a “reservation of right” nor is there anything in the statute suggesting a “reservation of right to file a peremptory challenge” constitutes the filing of a peremptory challenge for purposes of the time provisions of section 170.6.  (Furthermore, petitioner's counsel in the instant case actually announced to the master calendar court his probable intent to file a challenge for cause and to follow it up with a peremptory challenge if the former proved unsuccessful.   So there was as much of a “reservation of right” here as in Waldon, if such a reservation makes any difference which is something I doubt.)

Consequently, the timeliness of the party's eventual peremptory challenge in Waldon depends on the timeliness of his actual filing of the challenge itself not the reservation of a right to challenge.   And that challenge was not filed until after the challenge for cause had been denied and a writ petition denied in the appellate court.   Nonetheless, the Waldon court found the peremptory challenge was timely even though filed long after the time limits provided in section 170.6.   It did so by disregarding—that is, tolling—the period required for the court system to dispose of the challenge for cause.  “Upon being notified by this court that his petition for writ of mandate on the challenge for cause had been denied, Waldon immediately filed the peremptory challenge․   To require Waldon to file his peremptory challenge before the extraordinary review was completed would effectively deprive him of his right to pursue his challenge for cause.”  (196 Cal.App.3d at pp. 814–815, 241 Cal.Rptr. 123.)

Similarly, in the instant case, to require parties in petitioner's position to file their peremptory challenges before the trial court even gets around to deciding their challenges for cause effectively deprives them of their right to pursue a challenge for cause.   The majority is willing to do so.   I am not.

Nonetheless, as mentioned earlier in this opinion, after the Supreme Court decision in Lavi, I do not regard it as necessary to reach this second issue in order to resolve the writ proceeding before this court.   In my opinion, under that high court decision, the “master calendar rule” does not apply to the peremptory challenge filed in this case.   As a consequence, the petitioner's section 170.6 motion was timely when filed even without bothering to allow any tolling while the motion to disqualify for cause was being decided.

FOOTNOTES

FN1. All statutory references, unless otherwise noted, are to the Code of Civil Procedure..  FN1. All statutory references, unless otherwise noted, are to the Code of Civil Procedure.

2.   Judge Morrow returned from vacation, as scheduled, on May 4, 1992.

3.   The statute, in relevant part, reads:  “A judge shall be disqualified if any one or more of the following is true: .    .    .    .    .(6) For any reason ․ (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

4.   In the relevant part the section reads:“No judge ․ shall try any civil or criminal action ․ nor hear any matter ․ when it shall be established as hereinafter provided that the judge ․ is prejudiced against any party or attorney ․ in the action or proceeding.”

5.   Lavi explains “ready courtroom” as follows:  “By stating that the courtroom must be ‘ready,’ we do not suggest that the courtroom actually be idle at the time of assignment.   Rather, we mean that the courtroom is available or reasonably expected to become available shortly so that the trial may commence.   For example, an assignment made in the morning for a trial expected to begin that afternoon could fall within the master calendar rule, as could an assignment made in the afternoon for a trial expected to begin the following morning.  (Cf.Cal. Criminal Law Procedure and Practice, supra, § 17.1, p. 342 [assignment for trial to begin on the same day].)”  (Id. at p. 1177, fn. 8, 17 Cal.Rptr.2d 815, 847 P.2d 1031.)

1.   Unless otherwise indicated all subsequent references are to the Code of Civil Procedure.

2.   The need for including the “cumulative to” language in 170.6 is underscored by a 1978 decision of the Alaska Supreme Court construing a similar law which lacked such language.  (Wamser v. State (Alaska 1978) 587 P.2d 232.)   In that opinion, the majority of Alaska's high court confronted a situation similar to the instant case but in a criminal prosecution.   A defendant had filed a challenge for cause within the time allowed for filing a peremptory challenge.   By the time the court was able to decide and reject that challenge for cause the time period had run out for filing a peremptory challenge.The trial court rejected the peremptory challenge as untimely and the Alaska Supreme Court ruled this did not represent an abuse of discretion.   The reason given is instructive, however.  “No undue burden is placed on a party by requiring him to elect whether to proceed by means of a challenge for cause or a peremptory challenge.”  (Italics added 587 P.2d at p. 235.)   The Alaska statutes had no provision these remedies were “cumulative” or that one was not to be construed in such a way as to impair exercise of the other.   Thus the court was free to construe these as alternative rights not cumulative ones.   Thus this difference between California and Alaska law, and the strong preference the California Legislature expressed in section 170.6, subdivision (7), assumes overriding importance.   Our Legislature determined it would impose an “undue burden” on parties to require them to “elect” between cause and peremptory grounds when challenging a judge assigned to hear a specific case.Notably, the dissenting justice in Wamser found these remedies cumulative, even in the absence of statutory language to that effect.   He reasoned, “The right of peremptory disqualification was meant to supplement, not to supplant, the right to challenge for cause.   I would hold that the time for filing a peremptory disqualification is tolled while a challenge for cause is pending.   This would fully preserve both rights.”  (587 P.2d at p. 235.)   That position while quite persuasive even under Alaska's statutory framework becomes absolutely compelling under the California version.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.