TRUCK INSURANCE EXCHANGE v. PARKER (1989)

This proceeding in mandate requires us to determine whether Los Angeles Superior Court's Trial Court Delay Reduction Act,¹ rule 1104.2, requires litigants to file written Code of Civil Procedure section 170.6 ² peremptory disqualification motions directly in the department of the challenged I/C judge.³  We conclude that the rule does require direct filing and that petitioner is not entitled to relief.

Petitioner is a defendant in the underlying civil action, which is subject to the Delay Reduction Act.   After being served with process, petitioner, through its trial counsel, caused an attorney service to file its “first papers” in the central clerk's office.   The filings consisted of a notice of demurrer and demurrer to the complaint, a notice of motion and motion to strike, and a section 170.6 peremptory disqualification motion against the assigned I/C judge who presides in department 32 of respondent court.   Petitioner's attorney service avers that, pursuant to counsel's written filing instructions, it “lodged” a conformed copy of the section 170.6 motion “in department 32” that same day.   No evidentiary facts concerning this “lodging” are alleged.

On the noticed hearing date, approximately three weeks later, petitioner's counsel appeared in department 32.   When counsel arrived, petitioner's matters had already been heard and denied.⁴  After the I/C judge completed the calendar and retired to chambers, counsel asked the department clerk which new I/C judge would hear its motions after petitioner's disqualification of Judge O'Brien.   Counsel then discovered that the department 32 clerk had no knowledge of petitioner's section 170.6 motion and that the clerk denied receiving the conformed copy that the attorney service said it had “lodged” with that department.   Counsel also learned that petitioner's matters had been denied before counsel arrived.   The clerk examined counsel's conformed file copy of the motion and pointed out that it did not bear a department 32 file stamp.

Counsel offered to submit the conformed file copy of the section 170.6 motion to the court, presumably as either a timely motion or as proof that the original motion had been timely filed.   The court clerk took the tendered copy into chambers to relay counsel's assertions and suggestion.   The clerk returned to advise counsel that the judge had determined that the original motion had been “improperly filed.”   The judge declined counsel's request to argue the matter.

Defendant petitioned this court for a writ of mandate contending that the section 170.6 motion was timely and effectively filed with the central clerk's office in compliance with the Delay Reduction Act, rules 1104.1 and 1104.2.   It also contended that, even if direct filing were required, it is an insignificant technicality and must be ignored.   Petitioner also appears to argue by implication that filing the motion with the clerk's office and “lodging” of a conformed copy directly with the I/C judge's department constitutes substantial compliance with the Delay Reduction Act rule.

We summarily denied that petition by written order pointing out that the petition failed even to acknowledge or address the significance of the “before the assigned I/C judge” provision in rule 1104.2, which provision we considered determinative, and that the petition otherwise failed to demonstrate entitlement to relief.

The Supreme Court granted review and ordered us to issue the alternative writ of mandate.   It temporarily stayed all further proceedings in the underlying action before the subject I/C judge.

We issued the alternative writ and heard argument.   After review, we conclude that the section 170.6 disqualification motion was ineffective because it was not filed in conformity with the Los Angeles Superior Court Trial Court Delay Reduction Act.

I.

 Rule 1104.2 expressly requires that a section 170.6 challenge “must be made orally in open court or by written motion before the assigned I/C Judge.”  (Emphasis added.)   The only reasonable construction of this plain language is that in “fast-track” cases written section 170.6 motions must be filed directly with the department of the assigned I/C judge.   This result is required in light of the section 1005.5 specification of how and when motions are deemed to be “made” as well as the fundamental purpose of the Delay Reduction Act.

A section 170.6 peremptory challenge is a motion requesting an order of recusal.  (§§ 170.6, subd. (2) and 1003;  rule 1104.1.)  Section 170.6 expressly provides that written and oral motions thereunder are to be made “without notice.”  (§ 170.6, subd. (2).)

Section 1005.5 provides that “A motion ․ is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled.” ⁵  (Emphasis added.)

Accordingly, pursuant to section 1005.5, section 170.6 motions are deemed to be “made” when filed.  (Ensher, Alexander & Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 324–325, 37 Cal.Rptr. 327;  Batchelor v. Finn (1959) 169 Cal.App.2d 410, 417, 341 P.2d 803, 346 P.2d 795;  Bouchard v. Insona (1980) 105 Cal.App.3d 768, 773, fn. 2, 164 Cal.Rptr. 505;  People v. Dianda (1986) 178 Cal.App.3d 174, 176, 223 Cal.Rptr. 635;  6 Witkin, Cal. Procedure (3rd ed. 1985) Proceedings Without Trial, § 29, pp. 344–345.)   Of equal significance, section 1005.5 establishes that the making of a written motion is a separate and distinct event from the hearing thereof.  (Ensher, Alexander & Barsoom v. Ensher, ibid.)

Thus, by statutory definition, the rule 1104.2 statement that written disqualification motions “must be made ․ before the assigned I/C Judge” means that the motions must be filed directly with the assigned I/C judge's department.

Petitioner ignores the fundamental statutory provisions discussed above when it argues that “made ․ before the assigned I/C judge” means only that a section 170.6 motion must “come before” (i.e., be heard by) that judge.   Petitioner offers no authority for equating “made before” with “comes before” in this context.   Also, as discussed below, petitioner's construction would render the subject language without useful meaning because another Delay Reduction Act rule requires all motions in a “fast track” case to be heard by the assigned I/C judge.

II.

Established rules of statutory construction also support our reading of rule 1104.2.

 The primary rule of statutory construction is that courts should attempt to ascertain the purpose behind the statute, with reference to the overall statutory scheme if necessary, and attempt to construe it so as to effectuate that purpose.  (See Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749;  People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.)

Government Code section 68608 and rule 1100.2 of the Delay Reduction Act of 1986 state that the primary purpose of the pilot project is to “eliminate delay in the progress and ultimate resolution of litigation․”  Rule 1100.2 also recites the Judicial Council's statement of a “guiding principle” of the Act that “ ‘any elapsed time other than reasonably required ․ is unacceptable and should be eliminated.’ ”

It is evident that requirement of direct filing of written disqualification motions with the assigned I/C judge's department eliminates delay in determining the timeliness and effectiveness of the motions and consequent assignment of new I/C judges.   The delay eliminated is the period during which a centrally filed motion is in transit from the clerk's office to the I/C judge's department.   The period might be a matter of hours or days or, in the occasional situation of a temporarily misplaced motion, significantly longer.   Viewed in the perspective of all cases pending under the Delay Reduction Act, the cumulative elimination of delay is significant.   A secondary potential virtue of the rule 1104.2 requirement is that it would also eliminate unnecessary review of pending motions by the targeted I/C judge during the time an effective disqualification motion would otherwise be in transit from the clerk's office.   Direct filing of written section 170.6 motions is also consistent with the fact that in fast-track cases and nonfast-track cases alike (with special exceptions not applicable here), it is the challenged judge who examines the disqualification motion as to timeliness and formal sufficiency.  (Rule 1103.9;  Lewis v. Linn (1962) 209 Cal.App.2d 394, 399–400, 26 Cal.Rptr. 6.)

Also, as demonstrated by the underlying action, direct filing with the I/C judge's department avoids delays resulting from disputes concerning compliance with rule 1104.2 by means of central filing and delivery of a conformed copy to the I/C department or by some other irregular procedure.

 The construction we adopt is also consistent with the corollary rule of construction that every word and phrase employed in a statute or court rule is presumed, whenever reasonably possible, to have an intended useful meaning and function.  (Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 233, 273 P.2d 5.).

Rule 1103.9, entitled “Assignment for All Purposes,” states that in the delay reduction pilot project a case is assigned to an I/C judge for all purposes and the I/C judge shall hear and determines all matters and motions therein.   Accordingly, to read the “made ․ before the assigned I/C judge” provision in rule 1104.2 as meaning only that motions must “come before” (i.e., be heard by) the I/C judge, would render that provision duplicative of rule 1103.9 and superfluous.

The suggestion that rule 1104.2 might be more explicitly worded—by use of the term “filed” instead of “made” and by adding a phrase specifically proscribing filing with the central clerk's office—does not vitiate the plain import of the rule as worded.   Rule 1104.2 grammatically and concisely deals with both oral motions in open court and written motions.   Accordingly, use of the term “made” is appropriate in this context.   The term “filing” is inapposite, and at the least awkward, with reference to oral motions.

Finally, in this regard petitioner argues that language in different local court rules (promulgated at different times and different contexts) demonstrates that rule 1104.2 would have been more explicit had it been intended to require filing directly with the I/C judge's department.   However, these different provisions are not mandatory models of form and do not refer to the making of both written and oral motions.  (See Los Angeles Superior Court Law Department Policy Manual, section 110.)

Neither is it of any significance that California Rules of Court, rule 319 states the general rule that “Unless otherwise provided by local rule, all papers relating to a law and motion proceeding shall be filed with the clerk's office.”   Not only is the rule 1104.2 filing requirement an authorized exception to rule 319, but Government Code section 68612 expressly provides that the procedures of the Delay Reduction Act prevail over inconsistent provisions of the California Rules of Court.

III.

Petitioner appears to argue two additional, somewhat interrelated, secondary contentions.   First, even if rule 1104.2 does require that written section 170.6 motions be filed directly with the assigned I/C judge's department, the requirement is an insignificant technicality and must be ignored in favor of petitioner's right to a disqualification.   Second, even if rule 1104.2 does require direct filing with the I/C judge's department, filing the motion with the clerk's office and “lodging” a conformed copy with the I/C judge's department constitutes “substantial compliance” with the rule.

 With regard to the claim that rule 1104.2 is an insignificant technicality to be ignored, we will show that all of the cases cited by petitioner in support of this theory are materially distinguishable and one supports the opposite position.

In Retes v. Superior Court (1981) 122 Cal.App.3d 799, 176 Cal.Rptr. 160, and People v. St. Andrew (1980) 101 Cal.App.3d 450, 161 Cal.Rptr. 634, the technical defect of omitting to verify a written and an oral section 170.6 motion, respectively, is held curable when the motions had been filed at the proper time and place immediately prior to commencement of a scheduled hearing and the challenged judge refused to advise or permit correction of the defect.  (Retes, supra, 122 Cal.App.3d at 802, 176 Cal.Rptr. 160;  St. Andrew, supra, 101 Cal.App.3d at 456, 161 Cal.Rptr. 634.)   In St. Andrew the requirement of verification was deemed to be an important one that could not simply be ignored.   The court rejected the suggested application of the “substantial compliance” doctrine.   The defect was deemed cured under the constitutional compulsion, unique to criminal cases, to provide competent defense counsel.⁶

The critical distinction to be made as to the cases petitioner cites is that they involve situations where the formal defect may be cured before the underlying purpose of the particular requirement is violated.   In contrast, by the time a challenged I/C judge would receive a section 170.6 motion filed in and transmitted from the central clerk's office, the very delay against which the rule 1104.2 direct-filing requirement is aimed will necessarily have already occurred.   As discussed, whatever period of delay would be occasioned in each instance of noncompliance with rule 1104.2, the cumulative delay in all fast-track cases is potentially great.   We cannot conclude that the rule 1104.2 requirement at issue is a hollow formality that may be ignored.

For the reasons discussed in part I of this discussion, the I/C judge was justified in regarding the improperly filed disqualification motion as ineffectual under rule 1104.2.   The justification for disregarding such filing is analogous to that established in nonfast track cases where a disqualification motion is untimely under the section 170.6 “master calendar” rule or the “10–day/5–day” rule.   Rule 1104.2 and these other special rules similarly reduce delay in determination of the effectiveness of disqualification motions.   They also expedite assignment of new judges and early rescheduling of hearings.   Both of these delay reducing filing rules are always strictly enforced.

We need not reach the issue of substantial compliance because we are compelled by rules of appellate review to assume that respondent resolved adversely to petitioner the factual dispute concerning the “lodging” of a “conformed” copy of the section 170.6 motion in the I/C judge's department.   Thus, the factor upon which petitioner would rely for a claim of substantial compliance (i.e., concurrent notice of motion to the challenged judge) is not cognizable here.

 Pertinent rules of writ review are that appellate courts must assume that the lower court resolved all factual disputes in a manner supporting its ruling (Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534;  Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 587, 147 Cal.Rptr. 915;  Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784–785, 59 Cal.Rptr. 141, 427 P.2d 805) and that (subject to exceptions not applicable here) appellate courts may consider only evidence that was before the lower court and may draw reasonable supporting inferences therefrom.  (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 507–508, 289 P.2d 476.)

 Accordingly, we must assume that respondent accepted as true the claim of the clerk in his department that she was not tendered any copy of the section 170.6 motion, despite petitioner's contrary, nonspecific assertion that such a copy was “lodged” with that department.

There was substantial evidence before respondent to support this determination.   The supporting declaration of petitioner's trial counsel concedes that the department 32 clerk immediately denied ever receiving the “lodged” conformed copy of petitioner's disqualification motion.   Also, the clerk pointed out to counsel that no department 32 stamp appeared on counsel's conformed file copy.⁷

The declarations submitted in support of the petition for mandate are of no value on this question because they only state the bare conclusion that a conformed copy of the motion was “lodged in department 32.”   They do not state any evidentiary facts concerning how, when or to whom the conformed copy of the motion was delivered.  (See Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1, 8, 82 Cal.Rptr. 288.)   There is, of course, a reasonable possibility that the copy was inadvertently delivered to the wrong department or was left in the department in a manner such that it did not come to the court clerk's attention.

 Even if we were to reach the “substantial compliance” issue, we would conclude that effective application of rule 1104.2 and the policy underlying the Delay Reduction Act render use of that principle inappropriate here.⁸

While it might on first impression appear provident to permit an earnest, nonconforming party relief under the doctrine of substantial compliance, the broader policy consideration of efficient administration of the Delay Reduction Act requires that rule 1104.2 be strictly applied.

The peremptory writ of mandate is denied and the alternative writ is discharged.

FOOTNOTES

1.   Promulgated under authority of Government Code section 68600 et seq.   All further references to rules are to the Delay Reduction Act rules unless otherwise specified.   Cases subject to this Act are sometimes referred to as “fast track” cases.

2.   All further statutory and section references are to the Code of Civil Procedure unless otherwise specified.

3.   An “I/C” judge is the judge assigned to a case being administered under the Delay Reduction Act pilot program who handles such cases on an individual or all purpose calendar and hears and determines all matters and motions in such cases.  (Delay Reduction Act, rules 1101.4 and 1103.9.)

4.   The return filed by respondent to the alternative writ states that the department 32 law and motion calendar is routinely commenced at 8 a.m. rather than the 9 a.m. time stated in petitioner's notices.   The assistant county counsel who authored the return avers that petitioner's trial counsel had appeared several times during 1988 at the department 32 8 a.m. law and motion calendar.   This averment has not been disputed.

5.   Prior to enactment of section 1005.5 in 1953, the common law rule in this state was that a motion is deemed to be made when oral application for an order is made before the judge in open court.   The statute's proviso reserving to parties the right to oral argument after this change in procedural law underscores the distinction between the making and the hearing of motions.

6.   In People v. Whitfield (1986) 183 Cal.App.3d 299, 228 Cal.Rptr. 82, the third case relied upon by petitioner for the claim that noncompliance with rule 1104.2 should be ignored, a criminal defendant announced immediately prior to commencement of a noticed hearing that he intended to make an oral section 170.6 motion.   The judge proceeded to rule on the pending motion and then denied as untimely the oral disqualification motion defendant was belatedly permitted to make.   On appellate review it was simply held that the party should have been given the fair opportunity to make his intended motion prior to commencement of the hearing.  Whitfield clearly has no application here.

7.   We also point out that the three written declarations submitted in support of the petition for mandate were never submitted to respondent before it made the challenged ruling on the disqualification motion.   Accordingly, these declarations are technically outside the cognizance of this court on review of the challenged ruling, except to the extent that they aver what was communicated to the judge by way of facts and argument concerning counsel's claim of an effective filing.  (Cal. Rules of Court, rule 56(c)(4)(ii).)   The appropriate procedure for petitioner to have followed was to move respondent for reconsideration by written motion on the basis of the different showing of facts in the subsequent declarations.  (Code Civ.Proc. § 1008;  Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1013, 183 Cal.Rptr. 594.)   If the motion were again denied, then these declarations would be properly before this court on a petition for writ of mandate.   Finally, we point out that the November 1, 1988 declaration of trial counsel, which was included for the first time in the petition for review, suffers from the same problem and is clearly hearsay as to how respondent court handles rule 1104.2 motions.   Even if we could validly take judicial notice of the facts asserted therein, we are not bound by lower court interpretations of statutes and rules.   It is a proper function of appellate courts to stop incorrect practices by lower courts.  (See Balassy v. Superior Court (1986) 181 Cal.App.3d 1148, 1151, 226 Cal.Rptr. 817.)

8.   Even if such motions were centrally filed and conformed copies delivered immediately to the challenged I/C judge's department, the judge must await transmittal of the original motion before determining its formal sufficiency and timeliness.   Only after the judge determines that the motion effects a disqualification could the case be transferred to the master calendar department for assignment of a new I/C judge.Also, permitting parties to deviate from the filing requirement set forth in rule 1104.2 could perpetuate procedural irregularities and result in similar delay in other cases while parties litigate whether some other variation from the language of rule 1104.2 constitutes “substantial compliance.”

ARLEIGH M. WOODS, Presiding Justice.

GEORGE and GOERTZEN, JJ., concur.