9 Cal. App. 5th 559
Cal. Ct. App.2017Background
- Juvenile dependency petition filed Feb 7, 2017 (Welf. & Inst. Code §300) regarding Minor E.R.; initial detention hearing held Feb 8.
- Father appeared, counsel was appointed and requested a contested detention hearing but sought continuance for investigation; court offered a one-day continuance to Feb 9.
- At the Feb 8 hearing the court read the detention report, found a prima facie showing under §300, found substantial danger and ordered temporary detention pending further hearing, placing Minor with mother.
- Father’s counsel filed a disqualification motion under Code Civ. Proc. §170.6 on Feb 9. The juvenile court denied it as untimely, reasoning that substantive detention findings had been made Feb 8.
- Father petitioned the Court of Appeal for writ of mandate; appellate court stayed proceedings and treated the matter for possible peremptory writ in the first instance.
- The Court of Appeal concluded the Feb 8 detention acts did not resolve contested factual issues and granted the writ, ordering the trial judge disqualified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Father’s §170.6 disqualification motion timely? | Motion filed within statute (filed Feb 9 — one day after initial hearing), so timely under statutory deadlines. | Court asserted motion untimely because it followed substantive detention rulings made Feb 8. | Motion was timely; filing two days after petition satisfied statute. |
| Did the Feb 8 initial detention hearing involve determination of contested factual issues related to the merits so as to bar a later §170.6 challenge? | Feb 8 hearing did not resolve contested facts: no witnesses, only detention report and a prima facie finding; matter continued for further hearing. | Trial court: its temporary detention findings were substantive determinations that precluded a timely §170.6 challenge. | Feb 8 findings were analogous to a probable-cause/prima-facie detention determination and did not resolve contested merits issues; thus did not bar the challenge. |
| Was issuance of a peremptory writ in the first instance appropriate? | Urgency and undisputed facts justified accelerated Palma procedure; no need for full plenary briefing. | (No opposition; Agency took no position.) | Peremptory writ in the first instance granted given clear entitlement and urgency. |
| Remedy required of juvenile court after writ? | Vacate denial and enter order disqualifying judge from the dependency proceedings. | N/A | Court ordered the superior court to vacate its Feb 9 denial and enter a new order disqualifying the judge. |
Key Cases Cited
- Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (Cal. 1984) (peremptory writ in first instance procedure)
- People v. Superior Court (Lavi), 4 Cal.4th 1164 (Cal. 1993) (discussion of §170.6 mechanics and terminology)
- Barrett v. Superior Court, 77 Cal.App.4th 1 (Cal. Ct. App. 1999) (preliminary/probable-cause hearings do not usually resolve contested merits issues)
- Daniel V. v. Superior Court, 139 Cal.App.4th 28 (Cal. Ct. App. 2006) (arraignment/initial hearings do not preclude timely §170.6 challenge)
- Jose S. v. Superior Court, 78 Cal.App.3d 619 (Cal. Ct. App. 1978) (initial detention and related pretrial actions did not resolve contested merits issues)