Opinion
INTRODUCTION
In this petition, we must decide whether, for purposes of determining the timeliness of a challenge to a trial judge under Code of Civil Procedure
BACKGROUND
This petition arises from a corporate dissolution action filed by minority shareholder Leigh A. Pfeiffer (plaintiff) against Entеnte Design, Inc., and majority shareholders John and Carrie Arbuckle (defendants). The case was originally assigned to the Hon. John S. Meyer for all purposes.
On November 6, 2012, counsel attended an ex parte hearing. At the hearing, Judge Meyer granted defense counsel’s request to continue the start of trial one day from November 13 to November 14. Judge Meyer also orally advised counsel he would not be available on November 14 and would tell them at trial call on November 9, which trial judge would be assignеd the case.
On the morning of November 9, counsel appeared before Judge Meyer and defense counsel agreed to a bench trial. Judge Meyer informed counsel the Hon. Luis R. Vargas was available to try the case on November 14. Althоugh defendants dispute this point, according to Judge Meyer both counsel indicated they had no problem with having the case assigned to Judge Vargas. Judge Meyer directed them to report to Judge Vargas’s courtroom “forthwith.” Counsel immediately repоrted to the courtroom and briefly consulted with Judge Vargas. Judge Vargas confirmed the bench trial and the November 14 trial date. Within an hour after leaving the courtroom, defense counsel filed a section 170.6 challenge to Judge Vargas.
Judge Vargas’s сlerk contacted defense counsel in the afternoon of November 9 seeking an explanation for why defense counsel failed to raise the issue with Judge Meyer or Judge Vargas that morning. Defense counsel explained he had not had an opportunity to discuss the matter with his clients and did not want to raise the possibility of a section 170.6 challenge unless he was actually going to file one. Judge Vargas subsequently denied the challenge as untimely.
DISCUSSION
“We review the trial court’s denial of the section 170.6 challenge for an abuse of discretion. A trial court ‘abuses its discretion when it erroneously denies as untimely a section 170.6 challenge.’ ” (D.M. v. Superior Court (2011)
“Section 170.6 permits a party to an action to disqualify summarily an assigned judge based on a sworn statement of the party’s belief that the judge is prejudiced against that party or the party’s attorneys. Provided the statement is timely and in proper form, the judge has no discretion to refuse the challenge. [Citations.] The right to disqualify a judge under section 170.6 ‘ “is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.” ’ ” (Pickett v. Superior Court (2012)
Generally, a section 170.6 challenge is permitted any time before the commencement of a triаl or hearing. There are, however, three exceptions to the general rule: the all-purpose assignment rule, the 10-day/five-day rule, and the master calendar rule. (People v. Superior Court (Lavi) (1993)
Under the аll-purpose assignment rule, a section 170.6 challenge to a judge must be filed within 10 days for criminal cases, or within 15 days for civil cases, after notice of the judge’s all-purpose assignment. (§ 170.6, subd. (a)(2); Lavi, supra,
Under the 10-day/five-day rule, a section 170.6 challenge to a judge who has not been assigned for all purposes must be filed at least five days before the trial date if the judge’s identity is known more than 10 days before that date. (§ 170.6, subd. (a)(2); Lavi, supra,
Instead, the pаrties dispute whether the master calendar rule applies. Under the master calendar rule, a section 170.6 challenge must be filed no later than the time the case is assigned for trial. (§ 170.6, subd. (a)(2); Lavi, supra, 4 Cal.4th at p. 1172.) If the rule applies, defendants’ section 170.6 сhallenge was untimely because they made it approximately an hour after Judge Meyer assigned the case to Judge Vargas for trial. If the master calendar rule does not apply, then the general rule applies and defendants’ chаllenge was timely because defendants made it before the trial commenced.
Whether the master calendar rule applies depends on whether Judge Meyer was managing a true master calendar when he assigned this case to Judge Vаrgas. (Lavi, supra, 4 Cal.4th at pp. 1174—1175.) A judge manages a true master calendar when the judge assigns trial-ready cases to trial-ready courtrooms, for it is this circumstance that justifies the master calendar rule. (Id. at pp. 1175-1177.) When there is a trial judge ready and able to commence a trial, it is impracticable to allow litigants the time period permitted under the other rules to consider the advisability of making a section 170.6 challenge. By requiring litigants to make their challenges immediately upon assignment from the mastеr calendar, the master calendar rule allows the judge in the master calendar courtroom to promptly utilize a challenged trial judge for another pending trial. (Lavi, at pp. 1175-1176, citing People v. Escobedo (1973)
The instant case did not involve a true master calendar assignment because the case was not ready for immediate trial when Judge Meyer
Even if Judge Meyer was managing a true master calendar when he assigned this case to Judge Vargas, the master calendar rule does not apply unless the parties had advance notice Judge Meyer was acting as master сalendar judge then. (Ruiz v. Appellate Division of the Superior Court (2004)
On the date the parties to the defendant’s case announced they were ready for trial, the trial court informed the parties it would be trying another matter that day and it transferred the case to another trial department. (Ruiz, supra,
The appellate court, however, concluded the master calendar rule did not apply to cases transferred from a direct set court to another courtroom for trial if the defendants did not have аdvance notice the direct set court was acting as a master calendar court in that circumstance. (Ruiz, supra, 119
The parties do not assert and the record does not show the parties had advance notice Judge Meyer was acting as a master calendar judge when he assigned this case to Judge Vargas for trial. Because a master calendar judge and a judge assigned to a case for all purposes function differently (see Zilog, Inc. v. Superior Court, supra,
The superior сourt’s rule for civil case assignments also does not provide the parties notice that all-purpose assignment judges act as master calendar judges when they transfer cases for trial. The rule states in relevant part, “At the time an actiоn is filed, it will be assigned either to the master calendar or to a judge for all purposes.” (Super. Ct. San Diego County, Local Rules, rule 2.1.3, italics added.) The either/or dichotomy implies an assignment for all purposes and an assignment to the master calendаr are mutually exclusive. (See, e.g., People v. Hunter (1977)
As this case was not trial ready when Judge Meyer transferred it to Judge Vargas and as the record does not show the parties had notice Judge Meyer was acting as a master calendar judge when he made thе transfer, we conclude the master calendar rule does not apply to defendants’ section 170.6 challenge. Accordingly, we conclude the superior court abused its discretion when it denied the challenge as untimely.
Let a writ of mandate issue directing the superior court to vacate its November 9, 2012, order denying the section 170.6 challenge and issue a new order granting it. The stay issued by this court on November 13, 2012, is vacated. Petitioners are entitled to recover their costs in this writ procеeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
O’Rourke, J., and Aaron, J., concurred.
Notes
Further statutory references are also to the Code of Civil Procedure.
Although we recognize the superior court ordinarily lacks standing to oppose a petition such as this (Curle v. Superior Court (2001)
While this petition was pending, Judge Vargas retired. Notwithstanding the petition’s arguable mootness, we exercise our inherent discretion to decide it because it involves matters of continuing public interest. (Oaks Management Corporation v. Superior Court (2006)
For the first time in their reply, defendants argue they are entitled to file a challenge to Judge Meyer under section 170.6, subdivision (a)(2), when this matter is returned to the superior court. They further request we direct the superior court to send the case to the master calendar department for reassignment to a judge other than Judge Meyer. We decline to address these matters as defendants have not established they are properly before us.