Dohner v. Super. Ct.

Filed 8/22/07 Dohner v. Super. Ct. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ORIGINAL PROCEEDINGS; petition for writ of mandate. Rolf M. Treu, Judge. Petition granted.

Alan R. Dohner, in pro. per., for Petitioner.

No appearance for Respondent.

No appearance for Real Parties in Interest.

___________________________

The trial court abused its discretion when it denied Alan Dohners (Dohner) Code of Civil Procedure section 170.6, subdivision (a)(2)[1] challenge. Accordingly, we grant the petition for writ of mandate.[2]

INTRODUCTION

On April 8, 2004, plaintiff Dohner filed an action against several defendants, alleging that while he was an inmate in state prison, defendants conspired to steal his money and file false police reports against him. While serving time in prison, Dohner retained counsel to file and pursue this action. But the attorney abandoned the case without informing his client. Counsel failed to attend a status conference, eventually resulting in dismissal of the case on March 14, 2005.

Dohner moved to set the dismissal aside based on abandonment. Judge Rolf M. Treu denied the motion on December 29, 2005, stating that Dohner had not diligently prosecuted the action. Dohner sought reconsideration, arguing that the case was not subject to dismissal for lack of prosecution because it had not been on file for at least two years. Judge Treu denied the motion, concluding he had authority to dismiss the case even though it had been on file for less than one year.

Dohner appealed and this Court reversed holding that the trial court abused its discretion in denying Dohners motion to set aside the dismissal. This Court, on remand, ordered Judge Treu to restore the case to the civil active list. The remittitur issued on May 3, 2007.

On May 11, 2007, Judge Treu issued an order restoring the matter to the civil active list and setting a case management conference.

Dohner timely moved to disqualify Judge Treu pursuant to section 170.6, subdivision (a)(2). On June 18, 2007, Judge Treu denied the peremptory challenge and stated: This Courts function, following reversal, as ordered by the Court of Appeal, was strictly ministerial. This Court was ordered to return the case to the civil active list, and that order has been complied with. [] There is therefore, no new trial to conduct, nor any re-examination of factual or legal issues for the Court to engage in.

Dohner filed a petition for writ of mandate in this Court seeking an order requiring Judge Treu to grant the section 170.6 motion.

DISCUSSION

This court reviews an order granting or denying a peremptory challenge pursuant to section 170.6 for an abuse of discretion. A trial court abuses its discretion when it erroneously denies a motion to disqualify a judge. [Citation.] (People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391, 395.)

Section 170. 6, subdivision (a)(2), provides, in relevant part: A motion under this paragraph may be made following reversal on appeal of a trial courts decision, or following reversal on appeal of a trial courts final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the partys attorney has been notified of the assignment.

The phrase new trial encompasses the reversal of a dismissal. (People v. Superior Court (Maloy), supra, 91 Cal.App.4th 391, 397.)

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of June 18, 2007, denying petitioners peremptory challenge pursuant to Code of Civil Procedure section 170.6, and to issue a new and different order granting same, in Los Angeles Superior Court case No. BC313515, entitled Alan R. Dohner v. Ernesto M. Vazquez et al.

All parties shall bear their own costs.

NOT TO BE PUBLISHED

THE COURT:

______________________ ______________________ ______________________

MALLANO, Acting P. J. ROTHSCHILD, J. JACKSON, J.**

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[1] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

[2] As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance. (Code Civ. Proc., l088; Alexanderv. Superior Court (l993) 5 Cal.4th 1218, 1222-1223; Ngv. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the courts intention to issue a peremptory writ. (Palmav. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

** Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.