Markley v. Superior Court

Filed 3/20/07 Markley v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PROCEEDING; petition for writ of mandate. Brett C. Klein, Judge. Petition granted.

Law Office of Douglas B. Vanderpool, Douglas B. Vanderpool; Markley Group, Devon S. Cutchins for Petitioner.

No appearance for Respondent.

Excelus Law Group, William W. Bloch for Real Parties in Interest.

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The trial court abused its discretion when it erroneously denied as untimely defendant Jeffrey D. Markleys Code of Civil Procedure section 170.6 [1]challenge. Accordingly, we grant the petition for writ of mandate.[2]

FACTUAL AND PROCEDURAL BACKGROUND

The underlying trial court action was assigned to Judge Elizabeth Allen White in Department 48 of the Los Angeles Superior Court.

On the morning of February 28, 2007, the day scheduled for trial, Judge White invited the parties and counsel into chambers to explore settlement. After initial settlement discussions with the court, plaintiffs Timothy Darragh and Sean Fitzpatrick refused to sign a stipulation allowing Judge White to conduct settlement discussions and, if unsuccessful, to conduct the trial.

As a result, Judge White recused herself from the case. The parties and counsel then left chambers and returned to the courtroom. The deputy courtroom clerk in Department 48 then informed counsel the case was reassigned to Department 77 (Judge Brett C. Klein), where the parties were to report after lunch at 1:45 p.m.

The deputy courtroom clerk told counsel that any peremptory challenge to Judge Klein should be made orally in Department 77 with written follow-up by the end of the day. The parties were not provided any minute order at that time reflecting the reassignment. Judge White was not on the bench at this time.

At 1:35 p.m., trial counsel for Jeffrey D. Markley (Markley) arrived in Department 77. Counsel stated to the deputy courtroom clerk that Markley was making a peremptory challenge to Judge Klein, and had a written peremptory challenge to present. The deputy courtroom clerk took the written peremptory challenge into chambers.

At 1:55 p.m. Judge Klein called the court into session and was advised of the forgoing. During oral argument, the bailiff in Department 77 told Judge Klein that [the clerk in Department 48] informed us she was sending a case over from the courtroom, and there might be talk of a 170.6 and to inform the attorneys when they got here that if theyre going to make that motion, they needed to make it before 1:45. Judge Klein called the deputy courtroom clerk from Department 48 into the courtroom and asked her what she told counsel about the location to file the peremptory challenge. She told Judge Klein she did not remember. Judge Klein proceeded to rule that the peremptory challenge, both oral and written, was untimely.

After the trial court denied the peremptory challenge, trial began. We stayed the trial.

DISCUSSION

An order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate. ( 170.3, subd. (d).) The standard of review is abuse of discretion, and a trial court abuses its discretion when it erroneously denies as untimely a section 170.6 challenge. [Citations.] (Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39.)

In this case, local court rules notwithstanding, the deputy courtroom clerk giving notice of the reassignment specifically directed the parties to make any peremptory challenge to the newly assigned judge in Department 77 before 1:45 p.m. This is uncontraverted. Markley made his peremptory challenge at 1:35 p.m, as the deputy courtroom clerk directed and before trial commenced. On the facts before us, this was a proper challenge resulting in automatic disqualification. (Section 170.6, subdivision (3).) Judge Klein erred in denying Markleys section 170.6 peremptory challenge.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of February 28, 2007, denying Jeffrey D. Markleys section 170.6 peremptory challenge, and to issue a new and different order granting same, in Los Angeles Superior Court case No. BC326508, entitled Timothy Darragh et al. v. Jeffrey D. Markley.

The temporary stay order is hereby vacated.

All parties shall bear their own costs.

NOT TO BE PUBLISHED

THE COURT:

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MALLANO, Acting P. J. VOGEL, J. ROTHSCHILD, 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., 1088; Lewisv. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexanderv. Superior Court (1993) 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.)