Filed 3/14/18 Ford Motor Co. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



FORD MOTOR COMPANY,

Petitioner,

v.

THE SUPERIOR COURT OF
RIVERSIDE COUNTY,

Respondent;

LEONARD COON,

Real Party in Interest.


E069775

(Super.Ct.No. MCC1300767)

OPINION


ORIGINAL PROCEEDINGS; petition for writ of mandate and/or prohibition. Sunshine S. Sykes, Judge. Petition is granted.
Horvitz & Levy, Lisa Perrochet, Frederic D. Cohen, Allison W. Meredith; LeClairRyan, Peter J. Van Zandt, Paul H. Efstratis, for Petitioner.
No appearance for Respondent.
Knight Law Group, Steve Mikhov, Roger Kirnos, Lauren A. Ungs; The Altman Law Group and Bryan C. Altman; Greines, Martin, Stein & Richland, Robin Meadow, Cynthia E. Tobisman, Alana H. Rotter, for Real Party in Interest.
In this matter, we have reviewed the petition, the opposition filed by real party in interest, and petitioner’s reply. We have determined that resolution of the matter involves the application of settled principles of law, and that the equities favor petitioner. We conclude that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
I.
DISCUSSION
This is a products defect case involving an allegedly faulty diesel engine in a Ford F-350 pickup. There are four related cases. All five are pending before the Riverside Superior Court, Department 6 (Judge Sykes). The four trailing cases are also before this court in petitions for writ of mandate (case Nos. E069827 (Watts); E069828 (Ettleman); E069829 (Tanner); and E069830 (Nolan)), also involving automotive claims, and will be addressed separately in due course. The petitions are not concerned with the merits of the automotive claims, however. Here, petitioner seeks relief from Judge Sykes’s denial of its Code of Civil Procedure section 170.6 disqualification statement as untimely after assignment to her department from the master calendar court.
“As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing. [Citations.] . . . Subdivision [(a)](2) of section 170.6, however, establishes three exceptions to the general rule, namely, the ‘10-day/5-day’ rule, the ‘master calendar’ rule, and the ‘all purpose assignment’ rule.” (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171 (Lavi).) Under the “master calendar rule,” a party “directed to trial of a cause where there is a master calendar” must make a section 170.6 challenge to the judge supervising the master calendar at the time of the assignment. (§ 170.6, subd. (a)(2).) But, “[u]nder a true master calendar, a ‘ready case is assigned to a ready department.’ [Citation.]” (Lavi, at p. 1175.) “ ‘When the case is assigned for a future trial, the reasons for the special “master calendar” provision in section 170.6 do not exist.’ ” (Id. at p. 1176, citing Villarruel v. Superior Court (1973) 35 Cal.App.3d 559, 564.) Nonetheless, “[b]y stating that the courtroom must be ‘ready,’ we do not suggest that the courtroom actually be idle at the time of assignment. Rather, we mean that the courtroom is available or reasonably expected to become available shortly so that the trial may commence. For example, an assignment made in the morning for a trial expected to begin that afternoon could fall within the master calendar rule, as could an assignment made in the afternoon for a trial expected to begin the following morning. [Citation.]” (Lavi, at p. 1177, fn. 8.)
The Riverside Superior Court went to a master calendar system effective January 2, 2018. At 8:30 a.m. on January 5, 2018 (Friday calendar session), counsel in Coon (and additional counsel for the related cases) appeared before Judge Vineyard in Department 1 for trial setting. Judge Vineyard greeted all counsel with, “Welcome to the first Friday morning of our 2018 master calendar.” Both parties announced ready for trial. Judge Vineyard had three courtrooms for assignment. His intent was “to assign them all to one department with Coon to start Monday morning and the others to trail back to back, depending on what the judge wants to do.” Counsel affirmed their trial documents were ready. Judge Vineyard also reiterated that his department was the master calendar court. He confirmed that no section 170.6 papers had been filed in any case and that “in a perfect world, nobody is going to do that and mess up the plan. The first test is going to be when I assign you to trial in an hour or so,” to keep the five cases together. The court then recessed, to reconvene at 10:30 a.m. He then assigned the five cases to Department 3, Judge Irma Asberry. Real party in interest’s counsel immediately exercised a section 170.6 disqualification to all five cases. Judge Vineyard responded, “Okay. In that case, you are assigned to Department 6, Judge Sykes. She’s actually here today. She’s still on vacation, but she’s back working in chambers. [¶] Same orders apply. You are ordered to report today, this morning, to Department 6 to drop off your papers and report Monday morning at 10 o’clock for trial.” He said Judge Sykes knew of the assignment and would address pretrial and motions in limine. Petitioner did not exercise section 170.6.
The parties proceeded to Department 6, where Judge Sykes took the bench. The proceedings were not on the record and instead were memorialized by a minute order. These included receiving the parties’ trial papers and motions in limine, discussing scheduling, consolidation and trial plan, and other trial matters. Judge Sykes stated she would review and rule on the motions in limine in Coon, with rulings to issue on January 9, 2018 (the following Tuesday).
On Monday, January 8, 2018, petitioner filed a section 170.6 disqualification of Judge Sykes, applicable to all five cases. Judge Sykes denied the disqualification as untimely in Coon, described below. In a hearing on January 11, 2018, she also denied a stay. She later denied the other four section 170.6 papers, also as untimely. Petitioner filed the initial petition to this court in Coon followed later by the related petitions in the other four cases.
Petitioner initially claims that it either had no notice or was confused about the master court assignment in Department 1, but adequate notice is incontrovertible, given the announcement of the master calendar role at the beginning and throughout the hearing. However, petitioner primarily argues that Judge Vineyard could not have been acting as a master calendar court in this case, because he stated that Judge Sykes was on vacation that day, meaning that she could not have started trial upon assignment and therefore was not a “ ‘ready’ ” court for trial. (Lavi, supra, 4 Cal.4th, at p. 1175.) Petitioner argues, “It is undisputed here that, even if a challenge to Judge Sykes had been made immediately, she could not have commenced a trial in some other trial-ready matter right away—she was not ready for ordinary courtroom activity on the day of assignment, and did not schedule trial in this case until the following Tuesday.” Notwithstanding, Judge Sykes herself disputed that statement in a January 11, 2018 hearing: “At this time the request for a stay is going to be denied. This case was sent to this department on Friday, January 5th. It should be clear that this Court was not on vacation. I was here present in Court ready to proceed with trial. . . . [¶] . . . [¶] I did then take all of the trial documents that were submitted to my courtroom assistant, all the motions in limine with the understanding that the Court would then be reviewing all of those motions in limine and preparing decisions for them so that when you all returned on Tuesday, the Court would then be giving the decisions on the motions in limine. [¶] Certainly that was the basis for the Court denying the 170.6 as untimely because we were in trial. A trial in these types of case[s] doesn’t begin on the day the first juror is sworn in. . . . That was the basis for the Court denying the 170.6 as untimely. Timely would have been made when you were in Department 1 as plaintiff’s counsel did when they submitted a 170.6 against Judge Asberry. Once you walked into this door and started discussing trial issues, trial had begun.”
Thus, Judge Sykes found that once the parties appeared and she received their motions in limine for determination, the trial had commenced for section 170.6 purposes. But, no case states that the filing of motions in limine sets the “start of trial” for section 170.6 actions, though some cases casually refer in dicta to motions in limine being made or considered at the “start of trial” in general. (See, e.g., Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 429.)
Instead, section 170.6, subdivision (a)(2), states, “In no event shall a judge . . . entertain the motion if it is made after the drawing of the name of the first juror, or if there is no jury, after the making of an opening statement by counsel for plaintiff, or if there is no opening statement by counsel for plaintiff, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced. . . . In the case of trials or hearings not specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly as possible.” More importantly, “The fact that a judge . . . has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein provided.” (§ 170.6, subd. (a)(2), italics and bold added.)
Thus, “[t]he term ‘trial’ as used in section 170.6 clearly means a hearing on the merits, i.e., the proceedings where the accused’s guilt or innocence is determined. [Citations.]” (In re Abdul Y. (1982) 130 Cal.App.3d 847, 857 [in the context of criminal proceedings].) A pretrial in limine determination on an issue involving the merits of the case could mark the “start of trial” for the purposes of section 170.6. (Id. at p. 860.) Here, the record is silent as to the contents of the motions in limine before Judge Sykes, but it is plain that she did not make any determination on any of the motions in limine before petitioner’s section 170.6 disqualification was filed on Monday, January 8, 2018, meaning the “start of trial” for section 170.6 could not have been January 5, 2018.
Additionally, correct or not, when Judge Vineyard assigned this case to Judge Sykes, he stated that she was on vacation but would meet with counsel, who must “drop off your papers” and report back for trial Monday, January 8. First, if Judge Sykes was “on vacation,” as Judge Vineyard believed, she could not have been “trial ready” at the time of the assignment. More to the point, it is reasonable that counsel for petitioner left Department 1 without making a section 170.6 challenge in the belief that the master calendar rule did not apply because the assignment was to a future trial date. Second, trial was set to start Monday morning, the next court day. A master calendar assignment to a trial court need not begin immediately, but the interval must be brief, e.g., assignment in the morning for trial to commence that afternoon or in the afternoon for trial to commence the next morning. (Lavi, supra, 4 Cal.4th, at p. 1177, fn. 8.) Here, the master calendar court made the assignment to Judge Sykes in Department 6 during the morning session on Friday, January 5, 2018. However, trial was not to start until the morning of the following court day, January 8 (then continued by Judge Sykes to January 9). That does not meet the exception footnoted in Lavi.
Accordingly, we have determined that the trial court abused its discretion in denying petitioner’s section 170.6 statement of disqualification, and that the petition should be granted.
II.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order of January 10, 2018, in Riverside Superior Court case No. MCC1300767, denying petitioner’s section 170.6 statement of disqualification, and to enter a new and different order granting disqualification and assigning another judge to the trial of this case. The previously ordered stay is lifted. Petitioner to recover its costs.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:



McKINSTER
J.



MILLER
J.