Ewing v. Super. Ct.
Filed 5/25/10 Ewing v. Super. Ct. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
MARC EWING, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; FIDELITY NATIONAL TITLE COMPANY, INC. etc. et al., Real Parties in Interest. | B223807 (Super. Ct. No. BC411712) |
ORIGINAL PROCEEDINGS. Petition for Writ of Mandate. Ramona G. See, Judge. Petition granted.
Law Offices of Rob Hennig, Rob Hennig for Petitioner Marc Ewing.
No appearance for Respondent.
No appearance for Real Parties in Interest Fidelity National Title Company and Michael Findlay.
Plaintiff, Marc Ewing, has filed a mandate petition pursuant to Code of Civil Procedure section[1]170.3, subdivision (d) challenging the respondent courts finding that his section 170.6 peremptory disqualification motion was untimely. On March 24, 2010, the respondent court served by mail a case reassignment notice. On April 7, 2010, plaintiff filed a section 170.6 peremptory disqualification motion seeking to disqualify the new judge to whom the case was reassigned. On April 12, 2010, the respondent court ruled the section 170.6 peremptory disqualification motion was untimely.
Section 170.6, subdivision (a)(2) provides, in a case assigned for all purposes, that the section 170.6 peremptory disqualification motion must be filed within 10 days of the assignment notice. Section 1013, subdivision (a) states that when service of any document is by mail, the time to perform any act is extended by five days. The five-day section 1013, subdivision (a) extension applies to section 170.6 peremptory disqualification motions. (Department of Fair Employment and Housing v. Superior Court (2002) 99 Cal.App.4th 896, 901; see Citicorp North America, Inc. v. Superior Court (1989) 213 Cal.App.3d 563, 567.) Thus, the section 170.6 peremptory disqualification motion filed on April 7, 2010, in response to the March 24, 2010 reassignment order, was timely. Government Code section 68616, subdivision (i), which sets forth a separate time frame for filing a section 170.6 peremptory disqualification motion after a initial appearance in a Trial Court Delay Reduction Act case, has no application to this case where plaintiff first appeared on April 13, 2009. (Motion Picture & TelevisionFundHospital v. Superior Court (2001) 88 Cal.App.4th 488, 493-494; Stubblefield Construction Co. v. Superior Court (2001) 81 Cal.App.4th 762, 768.) In light of entirely clear well settled authority concerning an extension of time to file any document pursuant to Code of Civil Procedure section 1013, subdivision (a), this is an appropriate case for issuance of a peremptory writ of mandate in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1261; Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171, 180.)
The mandate petition is granted. Upon remittitur issuance, the respondent court is to set aside its order finding the section 170.6 peremptory disqualification motion was untimely. The respondent court is to then issue a new order finding the section 170.6 peremptory disqualification motion to be timely. No costs are awarded in this proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.
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[1] Except as noted, all future statutory references are to the Code of Civil Procedure.
