NEWS INC v. PEOPLE (1993)

This matter is before us after a denial of petitioner's motion to disqualify a judge under Code of Civil Procedure 1 section 170.6.

Petitioner, defendant in People v. B & I News (Super.Ct.L.A.County, No. C718662) (a nuisance abatement and injunction action), requests a writ of mandamus to peremptorily disqualify Superior Court Judge Dion Morrow.

The issue is the timeliness of petitioner's section 170.6 motion.

PROCEDURAL BACKGROUND

The Los Angeles City Attorney filed a complaint for injunction and abatement alleging petitioner had violated the Red Light Abatement Law.

The case was calendared in a master calendar court (Superior Court Judge Robert Mallano).   That court transferred it for trial to Superior Court Judge Dion G. Morrow.   In Judge Morrow's court, petitioner moved to disqualify Judge Morrow for cause.  (§ 170.1, subd. (a)(6)(C).) ²

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 denied petitioner's motion.

Petitioner then moved to peremptorily disqualify Judge Morrow pursuant to section 170.6.³  Judge Morrow denied the motion as untimely.

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

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 that the underlying action was pending in a master calendar court and was assigned for trial on April 27, 1992, to Judge Morrow.   No section 170.6 motion was then, or ever, filed in the master calendar court and not until July 21, 1992, was such a motion filed in Judge Morrow's court.   It thus appears the motion was untimely because it was not “made to the judge supervising the master calendar” and because it was filed “later than the time the cause is assigned for trial.”  (§ 170.6.)

 Petitioner, however, argues the motion was timely.   He relies on another provision of the section which states that when specified judicial officers are “known at least 10 days before the date set for trial ․ the motion shall be made at least five days before that date.”  (§ 170.6, subd. (2).)  Petitioner then states that since Judge Morrow set trial for August 13, 1992, the July 21, 1992, peremptory disqualification motion was timely.

Petitioner is mistaken.   The relied upon provision is inapplicable.   It reads:  “Where the judge, other than a judge assigned to the case for all purposes ․ is known at least 10 days before the date set for trial ․ the motion shall be made at least five days before that date.”  (§ 170.6, subd. (2).)  Not only was Judge Morrow “assigned to the case for all purposes,” making the provision inapplicable, but he was assigned the action by a “master calendar” court.

 Finally, 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.

Again 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 170.6.⁴

DISPOSITION

The petition for a writ of mandate is denied.

I respectfully dissent.

I share the majority's apparent uncertainty whether this was a “master calendar” assignment for trial or an assignment to a judge “for all purposes.”   If the latter, petitioner would have had 10 days after notice of this all purpose assignment to file a Code of Civil Procedure 170.6 motion.¹  But if the former, petitioner would have had to file the motion “not later than the time the cause is assigned for trial.”

Some cases might turn on the issue of which form the assignment took.   This is not such a case.   Here 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 the Woodman decision cited in the majority opinion emphasizes, “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.”  (Section 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 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 170.6(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 170.6(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 170.6.

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 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.

FOOTNOTES

FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure..  FN1. Unless otherwise noted, all statutory references are to the Code of Civil Procedure.

2.   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.”

3.   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.”

4.   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.

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.”  (587 P.2d at p. 235, italics added.)   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 170.6(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.