202 Cal. App. 4th 1463
Cal. Ct. App.2012Background
- This case concerns whether a superior court local rule conflicts with Code Civ. Proc. §170.6(a)(2); the court holds the local rule is void for conflict.
- Section 170.6(a)(2) allows a 60-day motion window to disqualify a judge after notice of assignment following remand.
- Former Local Rule 7.5(f) provided the 60-day window began on the remittitur issuance.
- Facts involve a complaint for assault, intentional infliction of emotional distress, and false imprisonment, with a demurrer sustained due to alleged statutes of limitation.
- Plaintiffs sought correction of the clerk’s record; judgment entered for defendants; remittitur issued August 26, 2010, but proceedings were not timely scheduled.
- Plaintiffs were notified of a reassignment to Judge Stem on June 3–10, 2011; a 170.6 motion to disqualify was filed June 10, 2011 and denied June 22, 2011; the appellate writ petition followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Former Local Rule 7.5(f) conflicts with §170.6(a)(2). | Plaintiffs argue the rule dispatches the 60-day period from remittitur. | Respondent argues the rule harmonizes with §170.6(a)(2) despite lack of explicit notification mode. | Yes, conflict; rule void. |
Key Cases Cited
- Home Ins. Co. v. Superior Court, 34 Cal.4th 1025 (Cal. 2005) (limits on abuse of §170.6 and single motion per action)
- Hendershot v. Superior Court, 20 Cal.App.4th 860 (Cal. App. 1993) (notification for assignment governs §170.6 timing)
- Cybermedia, Inc. v. Superior Court, 72 Cal.App.4th 910 (Cal. App. 1999) (actual notice of assignment triggers §170.6 window)
- Peracchi v. Superior Court, 30 Cal.4th 1245 (Cal. 2003) (1985 amendment origin of §170.6(a)(2))
- Elkins v. Superior Court, 41 Cal.4th 1337 (Cal. 2007) (local rules cannot conflict with statutes; inherent power acknowledged)