AMINOIL INC v. CITY OF FULLERTON (1988)

OPINION

Petitioner Aminoil, Inc., appeared in the underlying action after its codefendants had agreed to accept the assigned “all-purpose” judge and after that judge had ruled on demurrers to earlier pleadings in the case.   Aminoil claims it was entitled to file a peremptory challenge against the judge despite these facts.   We agree and order the trial court to vacate its order striking Aminoil's disqualification motion.

I

A number of residents living near the McColl dump site in Fullerton, California, filed complaints in the Orange County Superior Court.   They alleged the toxic wastes located at the McColl site caused them to sustain personal injuries.   Their complaints named Aminoil, the City of Fullerton, and other oil companies, property owners and developers as defendants.   On June 4, 1987, the master calendar judge assigned the McColl cases to one judge for all purposes pursuant to California Rules of Court, rule 213.   The assignment order states “[a]ll parties waive [Code of Civil Procedure section] 170.6 notice.” ¹

Although Aminoil was not yet a party to the action, its counsel learned of the all-purpose assignment on June 11.   Counsel of record thereafter collaborated on pleading and discovery matters.   Aminoil's attorney participated to a limited extent;  however, he cautioned the other attorneys his client would not decide whether to challenge the assigned judge until it was served with a summons and complaint.   The assigned judge ruled on Fullerton's demurrer to the amended complaint on October 1.

Plaintiffs served Aminoil in February 1988.   On March 31, counsel filed a notice of appearance on Aminoil's behalf and a motion to disqualify the assigned judge pursuant to section 170.6.   Fullerton moved to strike the disqualification motion on two grounds:  (1) the motion was untimely because it was made long after the assignment from the master calendar department and the assigned judge had already tried factual issues;  and (2) Aminoil had waived its section 170.6 rights or was estopped from asserting them.   Fullerton supported its waiver/estoppel argument by claiming Aminoil knew of the all-purpose assignment one week after it was made but chose not to challenge it;  instead, Aminoil's attorney attended several meetings of defense counsel and helped draft discovery documents for use by Aminoil's codefendants.   Fullerton also maintained each “side” was entitled to only one peremptory challenge and Aminoil's codefendants had waived Aminoil's section 170.6 rights on June 4, 1987.

The trial court granted Fullerton's motion and Aminoil filed its writ petition in this court.   Aminoil argues no section 170.6 rights accrued until it appeared in the action and it should not have to appear to preserve those rights.   This court invited the superior court and Fullerton to respond pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893, but only Fullerton has accepted our invitation.   We appreciate Fullerton's response but conclude that Aminoil is entitled to peremptory relief.

The statute is clear and unambiguous: ²  Section 170.6 rights are possessed, and can only be asserted, by parties (or their legal representatives) who have made a general appearance in the action or proceeding.   Potential interveners, unnamed defendants, and defendants named but unserved (or otherwise not “of record”) are powerless to assert the benefits of the statute.  (See generally Code Civ.Proc., § 367;  4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 102, pp. 137–138;  3 Witkin, op. cit. supra, Actions, § 44, pp. 70–72.)   This would seem to end the matter, but Fullerton doggedly pursues its arguments.   Each is easily rejected.

Fullerton, relying on Waldon v. Superior Court (1987) 196 Cal.App.3d 809, 241 Cal.Rptr. 123 and Augustyn v. Superior Court (1986) 186 Cal.App.3d 1221, 231 Cal.Rptr. 298, argues Aminoil's motion was untimely;  counsel did not file it immediately upon learning the identity of the all-purpose judge in June 1987.   However, even if those decisions correctly state the law (see also Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818), they have no application here.   They address the obligations of parties who appear in an action before an assignment order.

Fullerton also claims Aminoil's motion was untimely because it was filed after the trial court ruled on Fullerton's demurrers.  (§ 170.6, subd. (2).)  But those pleadings did not raise contested factual issues;  instead, they presented only legal issues for decision.  (§ 589, subd. (a);  5 Witkin, op. cit. supra, Pleading, § 894, p. 333.)

Fullerton next argues that in multi-party cases “only one [section 170.6] motion for each side may be made in any one action or special proceeding.”   (§ 170.6, subd. (3).)  It claims defendants waived their peremptory disqualification right when they agreed to accept the judge who was assigned to their case on June 4, 1987.   However, the section 170.6 challenge still belongs to the individual parties as tenants in common, not to a “side” collectively.   The statute only prohibits further section 170.6 challenges after any one party has exercised its right.   No defense challenge had been made before Aminoil filed its motion in March 1988.

Fullerton's waiver and estoppel arguments are also unavailing.  (See Guild Wineries & Distilleries v. Land Dynamics (1980) 103 Cal.App.3d 966, 977, 163 Cal.Rptr. 348.)   As previously discussed, Aminoil had no right to disqualify the assigned judge until after it became a party.   Aminoil, consequently, could not have previously waived that right, and its codefendants could not have waived it on its behalf.

Nor is Aminoil estopped from filing the peremptory disqualification motion.   Although counsel attended two or three defense meetings and assisted in drafting some interrogatories and a document production request, he did this after the June 4, 1987, assignment order was made.   Because the court and Aminoil's codefendants did not rely to their detriment on any Aminoil statement or conduct when they settled on an all-purpose judge (or thereafter), Fullerton's estoppel defense must also fail.  (See Johnson v. Johnson (1960) 179 Cal.App.2d 326, 3 Cal.Rptr. 575.) ³  Aminoil is consequently entitled to a hearing on its section 170.6 motion.⁴

A formal hearing and further briefing would add nothing to the presentations already made.   Because Aminoil is entitled to relief as a matter of law, a peremptory writ in the first instance is appropriate.  (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171, 178, 203 Cal.Rptr. 626, 681 P.2d 893.)

Let a peremptory writ of mandate issue ordering respondent to vacate its order striking Aminoil's peremptory disqualification motion and to enter a new order denying the motion and directing that a hearing be conducted forthwith.   Aminoil to receive costs.

FOOTNOTES

1.   All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   Section 170.6 provides:  “(1) No judge, court commissioner, or referee of any superior, municipal or justice court of the State of California shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in such action or proceeding.“(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 court in which the action is pending is authorized to have no more than one judge and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion.   In no event shall any judge, court commissioner, or referee entertain such motion if it be made after the drawing of the name of the first juror, or if there be no jury, after the making of an opening statement by counsel for plaintiff, or if there be no such statement, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced.   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.“A motion under this paragraph may be made following reversal on appeal of a trial court's decision if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.   The motion shall be made within 60 days after the party or the party's attorney has been notified of the assignment.“(3) If such motion is duly presented and such affidavit or declaration under penalty of perjury is duly filed or such oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge, court commissioner, or referee to try the cause or hear the matter.   In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge, court commissioner, or referee of the court in which the trial or matter is pending or, if there is no other judge, court commissioner, or referee of the court in which the trial or matter is pending, the Chairman of the Judicial Council shall assign some other judge, court commissioner, or referee to try such cause or hear such matter as promptly as possible.   Under no circumstances shall a party or attorney be permitted to make more than one such motion in any one action or special proceeding pursuant to this section;  and in actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding.”  (Emphases added.)

3.   Fullerton's formal opposition also states that during the hearing on the assignment motion “the parties met, including plaintiffs' counsel and a representative of Aminoil's side, and agreed upon a list of four judges [including the assigned judge] as being acceptable for all pretrial purposes.   Specifically, the parties waived any right to a 170.6 challenge to these judges, including the [judge ultimately assigned to the case].”  We presume the “representative” was an attorney for one of Aminoil's codefendants and Aminoil's counsel was not in attendance.   Any other construction of the statement lacks support in the record.Although Fullerton has not made the related argument, there also seems to be no basis upon which Aminoil could be said to have ratified its codefendants' acceptance of the assigned judge.   Aminoil appears to have accepted none of the benefits of the assignment, and counsel expressed his intent to preserve his client's section 170.6 rights at the first defense meetings he attended.   The absence of conduct unequivocally consistent with an intent to ratify an agent's earlier acts bars application of the doctrine.  (See generally Civ.Code, § 2310;  Earle v. Lambert (1962) 205 Cal.App.2d 452, 457, 23 Cal.Rptr. 79.)

4.   Fullerton's only remaining argument is that plaintiffs timed their service on Aminoil, and Aminoil filed its motion in a joint effort to keep Fullerton in the action as a defendant;  i.e., Fullerton maintains its pending demurrers and motion for summary judgment would have enabled it to be dismissed from the action had plaintiffs not served Aminoil and moved to continue the hearing on Fullerton's motions.   However, that argument is mere speculation based upon the timing of these events and cannot operate (without more) to bar Aminoil's assertion of its right to move to disqualify the assigned judge.

SONENSHINE, Acting Presiding Justice.

CROSBY and WALLIN, JJ., concur.