DAVIS v. CITY OF NEWPORT BEACH

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Court of Appeal, Fourth District, Division 3, California.

Olive DAVIS, et al., Petitioners, v. SUPERIOR COURT of the State of California, Orange County, Respondent. CITY OF NEWPORT BEACH, et al., Real Parties in Interest.

Civ. 30971.

Decided: July 10, 1984

Western Center on Law & Poverty and Jonathan Lehrer-Graiwer, Los Angeles, Legal Aid Society of Orange County and Crystal C. Sims, Santa Ana, for petitioners. No appearance for respondent. Rutan & Tucker, Leonard A. Hampel, Jeffrey M. Oderman and Joel D. Kuperberg, Costa Mesa, for real parties in interest.

OPINION

In this original proceeding we are asked to determine the timeliness of a motion to disqualify a trial judge pursuant to Code of Civil Procedure section 170.6 when the matter in question has been assigned to that judge for all purposes.

The underlying action involves various challenges by petitioners to the housing and land use policies, ordinances and regulations of the City of Newport Beach.   Trial was initially scheduled for October 4, 1982.   On September 29, 1982 the trial date was continued to April 18, 1983 for assignment out of Department 1, the Master Calendar Department.   Sometime between September 29, 1982 and March 2, 1983, the case was assigned to Judge Leonard Goldstein for all purposes by the Presiding Judge of the Orange County Superior Court.1  Prior to April 18, 1983, to accommodate the court's calendar and to facilitate discovery, trial was continued to May 31, 1983 and then again to November 1, 1983.

Between October 1982 and September 30, 1983, Judge Goldstein presided at a number of hearings on motions brought by both petitioners and real parties, and also engaged in settlement discussions with counsel.   On September 30, 1983, petitioners filed their motion.

We initially denied petitioners' petition for a writ but the Supreme Court retransferred the matter to us with directions to issue an alternative writ, citing Zdonek v. Superior Court (1974) 38 Cal.App.3d 849, 113 Cal.Rptr. 669.   Since we find Judge Goldstein properly denied the motion on the ground it was not timely filed, we need not address the additional issues raised by real parties.2

I

 Code of Civil Procedure section 170.6 3 guarantees to litigants an extraordinary right to disqualify a judge.   The right is “automatic” in the sense a good faith belief in prejudice is sufficient;  proof of facts showing actual prejudice is not required.   (Solberg v. Superior Court (1977) 19 Cal.3d 182, 193, 137 Cal.Rptr. 460, 561 P.2d 1148.)   However, the statute prescribes certain time limitations within which the motion must be made:  when the judge is known at least 10 days before the date set for trial or hearing, the motion must be made no later than five days before the scheduled date—the 10-day 5-day rule;  and when the case is assigned from the master calendar, the motion must be made immediately upon assignment.  (§ 170.6, subd. (2), second and third sentences.)

 The 10-day 5-day rule and the master calendar rule are the only express statutory exceptions to the general rule a motion is permitted any time prior to the commencement of a trial or hearing.  (Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 412, 138 Cal.Rptr. 43.)   The next to last sentence of section 170.6, subdivision (2) confers upon the court discretion to rule on the timeliness of peremptory challenges in unspecified situations:  “In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.”   For example, section 170.6 makes no reference to a case assigned to a department.   Noting the distinction between an assignment to a judge and one to a department, courts have been reluctant to apply the 10-day 5-day rule in the latter instance primarily due to the uncertainty accompanying such an assignment, i.e., it would be unfair if a litigant's right to one peremptory challenge were exhausted on a judge who may ultimately not be the judge present in the named department on the day of hearing.  (See, e.g., Bouchard v. Insona (1980) 105 Cal.App.3d 768, 164 Cal.Rptr. 505;  People v. Hall (1978) 86 Cal.App.3d 753, 150 Cal.Rptr. 412;  In re Jose S. (1978) 78 Cal.App.3d 619, 144 Cal.Rptr. 309;  Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 16 Cal.Rptr. 745;  see also, People v. Escobedo (1973) 35 Cal.App.3d 32, 37, 110 Cal.Rptr. 550.)

However, no court has yet distinguished an assignment to a judge for all purposes.4  That distinction is crucial, and, as we shall explain, compels us to formulate a new rule to be applied under circumstances as presented herein.   In so doing, we question the propriety of the ruling in Zdonek v. Superior Court, supra, 38 Cal.App.3d 849, 113 Cal.Rptr. 669.

Petitioners contend their motion was timely since it was filed five days before the continued trial date.   They rely on Zdonek v. Superior Court, supra, 38 Cal.App.3d 849, 113 Cal.Rptr. 669, a case factually similar to ours.   There, a matter was assigned to a judge “for all further proceedings” on April 14.   On September 15, the judge heard and overruled a demurrer.   A motion to test the propriety of the case as a class action was originally scheduled for hearing on September 27, but was continued on the court's own motion to November 2.   On October 4, the petitioner filed a motion to disqualify the judge under section 170.6.   The presiding judge in the Master Calendar Department denied the motion on the ground it was not timely filed.   In granting the petition, the appellate court stated “[t]he cases establish that where a hearing date is set, and the hearing is postponed, a motion filed five days prior to the postponed date is timely.”  (Id., at p. 854, 113 Cal.Rptr. 669.)

However, the cases upon which the Zdonek court relied were inapposite.   In Eagle Maintenance & Supply Co. v. Superior Court, supra, 196 Cal.App.2d 692, 16 Cal.Rptr. 745, the Court of Appeal held timely a motion filed five days before the postponed date of a trial assigned to a department.   Although the Eagle Maintenance court noted the distinction between an assignment to a judge and an assignment to a department, it rendered the anomalous holding a motion under section 170.6 is timely filed “if presented at least five days before the last scheduled date for trial where the judge who is assigned to or scheduled to try the cause is known to the party or his attorney at least 10 days before such date.”  (Emphasis added;  id., at p. 695, 16 Cal.Rptr. 745.)   In People v. Escobedo, supra, 35 Cal.App.3d 32, 110 Cal.Rptr. 550, a motion made more than 5 days in advance of a continued hearing date was held timely.   But that hearing also was assigned to a department.   Even though Zdonek may appear to be factually similar to Eagle Maintenance and Escobedo because they all involved continued hearing dates, it is not.   The Zdonek court, in ignoring the critical distinction between an assignment to a judge and an assignment to a department, erroneously applied a rule designed solely for situations where a case assigned to a department is postponed.

In our view the Zdonek court would have reached the correct result had it applied the 10-day 5-day rule to the original hearing date,5 as indicated in Hospital Council of Northern Calif. v. Superior Court (1973) 30 Cal.App.3d 331, 106 Cal.Rptr. 247.6  Notwithstanding, we believe a section 170.6 motion to disqualify a judge assigned for all purposes is susceptible to a rule of its own—one which embraces the same concerns confronted by the Legislature in enacting the 10-day 5-day rule.

“The time limitations ․ reflect the Legislature's way of accommodating the conflicting needs of the litigant and the court, where the party wishes to postpone his motion until he is fully informed, and the court requires time to make adjustments after a disqualification.”  (People v. Escobedo, supra, 35 Cal.App.3d 32, 37, 110 Cal.Rptr. 550.)   Thus, the benefit afforded to litigants in allowing disqualification of a judge without establishing actual prejudice carries with it a burden to exercise that right within certain designated time parameters.   Recognizing the potential for abuse of this automatic right, our Supreme Court has emphasized the fact “the courts of this state have been vigilant to enforce the statutory restrictions on the number and timing of motions permitted.”  (Solberg v. Superior Court, supra, 19 Cal.3d 182, 197, 137 Cal.Rptr. 460, 561 P.2d 1148.)

To effectuate this intent, the time within which a party may challenge a judge assigned for all purposes must be governed by a standard which considers the conflicting needs of the litigants and the court, as well as the raison d'etre for this type of assignment.  “The reason for an ‘all purpose’ assignment lies in the pragmatic value of having all matters arising in a complicated and potentially long drawn-out case to be heard by one judge, so that the time of litigants, counsel and the superior court need not be wasted in the repetitive education of successive judges in the intricacies of that kind of case․”  (Zdonek v. Superior Court, supra, 38 Cal.App.3d at p. 856, 113 Cal.Rptr. 669 (dis. opn. of Kingsley, J.).)   Without a rule governing all purpose assignments, a judge assigned for all purposes could hear countless motions and if no determination of a factual issue relating to the merits is made 7 (§ 170.6, subd. (2), last sentence), still be subject to disqualification.   Moreover, since we view an all purpose assignment as “one long trial” and a litigant waives the right to a disqualification once trial commences, we perceive no impairment of the statutory right by restricting the time within which the motion must be made.

In light of the foregoing principles we are convinced the interests of judicial economy and litigants' rights are best served by requiring the filing of a section 170.6 challenge of a judge assigned for all purposes as promptly and expeditiously after notice of the assignment as is reasonable under the particular circumstances.   Since we recognize each case must be decided on its own particular facts, we refrain from mandating any fixed time limitations.   For example, a judge assigned for all purposes may spend considerable time reviewing a case long before a hearing is scheduled.   Were we to apply the 10-day 5-day rule and conclude a section 170.6 motion must be filed five days before the first hearing, we would be sanctioning disqualification of a judge who may have already spent time on the matter, thereby defeating the purpose of the original assignment.   In addition, we do not prescribe a rule requiring the filing of a section 170.6 challenge of a judge assigned for all purposes within a specified number of days after notice of the assignment.   A time limitation of this nature is most appropriately determined by the Legislature.

 Nor do we attempt to specifically define the term “reasonable.”   What is reasonable differs from case to case.   Under the facts of this case, we conclude petitioners' motion was not filed within a reasonable time after they received notice of the all purpose assignment.   They waited almost a year, during which time Judge Goldstein presided at numerous hearings and had become actively involved in the case.   Petitioners' contention they had just acquired information which caused them to believe he may be biased is unavailing.   As Justice Kingsley said:  “To permit a challenge under section 170.6 after the parties have held hearings before the designated judge, and [almost] a year after all parties and counsel knew that he was to hear every motion and to preside at the trial, totally frustrates the purpose of the original assignment.”  (Zdonek v. Superior Court, supra, 38 Cal.App.3d at pp. 856–857, 113 Cal.Rptr. 669 (dis. opn. of Kingsley, J.).)

The peremptory writ is denied, and the alternative writ is discharged.

FOOTNOTES

1.   Although petitioners stated in their section 170.6 motion Judge Goldstein had been assigned for all purposes in September or October 1982, they now assert he was then only assigned to hear law and motion matters.   Real parties contend Judge Goldstein was assigned in October 1982 as the “judge for all purposes, including trial.”   The record discloses that at a hearing on March 2, 1983, Judge Goldstein acknowledged, in the presence of counsel for both sides, he had been “designated as a judge for all purposes.”   However, we are not privy to any formal order or minute order wherein he was so assigned.

2.   Real parties contend (1) the motion was untimely because Judge Goldstein had previously heard and determined contested factual issues relating to the merits of the case;  and (2) petitioners waived their right to move for disqualification because their counsel stipulated to permit Judge Goldstein to serve as the settlement judge and the judge for all purposes.

3.   Code of Civil Procedure section 170.6 provides, in pertinent part:“․“(2) Any party to or any attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge, court commissioner, or referee before whom such action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge, court commissioner, or referee.   Where the judge, 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.   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․  If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than the commencement of the hearing.   In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.   The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided․”

4.   To our knowledge only Justice Kingsley's dissenting opinion in Zdonek v. Superior Court, supra, 38 Cal.App.3d 849, 113 Cal.Rptr. 669, addressed this issue.

5.   Petitioners contend since each trial date was continued on the court's own motion prior to each scheduled date, the deadline determined by Judge Goldstein, i.e., April 13, 1983, was only a “theoretical deadline.”   Stated another way, when April 13 arrived, the April 18 date had already been vacated, and thus the preceding five-day period was meaningless under the statute.  (Cf. Hospital Council of Northern Calif. v. Superior Court, supra, 30 Cal.App.3d 331, 106 Cal.Rptr. 247 and Zdonek v. Superior Court, supra, 38 Cal.App.3d 849, 113 Cal.Rptr. 669, where the five-day deadline before the original trial or hearing had passed by the time the attempted challenge was made.)   However, since our formulation of a rule governing all purpose assignments disposes of the timeliness issue, we need not determine whether petitioners' motion would otherwise have been timely.

6.   To our knowledge Hospital Council, one of the cases cited by Judge Goldstein in his order denying petitioners' motion, is the only other appellate decision involving a motion to disqualify where a trial assigned to a particular judge was later continued.  Zdonek acknowledged the rule of Hospital Council (Zdonek v. Superior Court, supra, at p. 855, fn. 6, 113 Cal.Rptr. 669), but intimated it was inapplicable because it relied on People v. Kennedy (1967) 256 Cal.App.2d 755, 64 Cal.Rptr. 345, a case involving a master calendar assignment, and because the motion filed two days before the continued date was untimely in any event.   While Hospital Council did erroneously rely on People v. Kennedy, it nevertheless reached the correct result.  Zdonek not only improperly relied on Eagle Maintenance, but also, its result was incorrect.

7.   As stated in footnote 2, ante, real parties contend the motion was not timely because Judge Goldstein had already made factual determinations relating to the merits of the case.   Although we need not reach this issue, we find Judge Goldstein made no factual determinations which would have precluded disqualification.

TROTTER, Presiding Justice.

SONENSHINE and BRICKNER, JJ.*, concur.