Thulin v. Superior Court

Filed 10/27/06 Thulin v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceeding; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Francisco F. Firmat, Judge. Petition granted.

Gilligan Law Corporation and John J. Gilligan for Petitioner.

Wesley L. Davis for Real Party in Interest Kathleen Reese.

Mary Boughen Orr for Real Party in Interest Sidney J. Thulin.

* * *

After the commencement of trial in the action brought by Sidney Thulin to dissolve his marriage to Karen Thulin, Karen joined a third party who claimed an interest in property that allegedly belonged to the community. The third party filed a peremptory challenge against the trial judge, which was accepted as timely. Karen filed a petition for relief from the order, claiming the challenge was untimely because trial had begun. We notified the parties we were considering the issuance of a peremptory writ of mandate in the first instance, and all parties filed a response. After reviewing the parties’ arguments and the case law, we find the challenge was untimely and grant the petition.

FACTS

Sidney Thulin filed for dissolution of his marriage to Karen Thulin in July 2000, listing the date of separation as November 1, 1998. Karen responded in February 2005, alleging the date of separation was September 20, 2004. On September 13, 2005, trial began on the bifurcated date of separation issue in front of Judge Nancy Pollard.

In the meantime, on August 3, 2005, Karen filed a motion to join Kathleen Reese, Sidney’s “long time girlfriend,” in the action. In the attached complaint for joinder, Karen alleged Sidney used community property funds to buy a house in Orange in January 1999, and coerced Karen into signing a quitclaim deed relinquishing her interest in the property to him. In 2000, Sidney refinanced the Orange property, pulling out $15,000 in cash for which he failed to account. In 2002, Sidney sold the Orange property. He received $199,554 from the sale and used $190,093 of it to buy a house in Anaheim Hills. He placed title to the Anaheim Hills house in Reese’s name, moved into the house with Reese, and used community funds to remodel it. Karen’s complaint seeks quiet title to the Anaheim Hills property and a declaration from the court that title is held by Karen and Sidney, and Reese has no interest in the property; a set aside of fraudulent transactions, cancelation of her quitclaim deed to Sidney on the Orange property, cancelation of the deed to Reese and reformation of the deed on the Anaheim Hills property; and imposition of a constructive trust on the property for her benefit.

The motion was heard on September 16, 2005. The court granted the motion over Sidney’s opposition, and the summons and complaint were served on Reese on September 21. The bifurcated trial continued on September 23 and September 30, and concluded on October 4, when Judge Pollard found the date of separation was September 20, 2004. On October 19, Reese timely filed a demurrer to the complaint for joinder, a demand for jury trial, and a motion to disqualify Judge Pollard under Code of Civil Procedure section 170.6.^[1] The section 170.6 motion was granted and the case was reassigned on October 26, 2005; notice of the order was mailed on the same day. Karen filed her petition for relief in this court on November 9.

DISCUSSION

The petition is timely.

Reese contends the petition was untimely filed and must be dismissed. Section 170.3, subdivision (d) provides that an order disqualifying a judge can only be reviewed by a writ of mandate “sought within 10 days of notice to the parties of the decision . . . .” This exclusive method of review applies to peremptory challenges under section 170.6. (Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1165.) Reese points out that Karen received the notice on October 28, as indicated by the date stamp on her copy of the order; thus, Reese argues, Karen’s last day to file the writ petition was November 7, 10 days from actual notice. Karen claims her petition was timely because the 10-day period was extended 5 days for mailing under section 1013, making November 10 her last day to file.

Reese cites Guedalia v. Superior Court, supra, 211 Cal.App.3d 1156 for the proposition that the 10-day period runs from the date of actual notice. There, the plaintiff filed a section 170.6 challenge, which the trial court found untimely. The trial court announced its ruling on the challenge in open court and entered an order denying the motion. More than two months later, the plaintiff filed a petition for writ of mandate, claiming the denial of his peremptory challenge was erroneous. The plaintiff argued his petition was timely because he never received written notice of the order denying the challenge. The court found that “formal written notice of the order is unnecessary to trigger the time limitations under section 170.3, subdivision (d), and that the 10-day period commenced . . . when the judge in open court informed [the plaintiff’s] counsel that his section 170.6 motion was denied.” (Id. at p. 1163.)

The difference between this case and Guedalia is that here the notice of the order granting Karen’s motion was mailed to all parties rather than announced in open court. Section 1013 provides that “any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California . . . .” (§ 1013, subd. (a).)

Section 1013 was applied to extend the 10-day period of time in which a party can make a peremptory challenge in California Business Council v. Superior Court (1997) 52 Cal.App.4th 1100. There, in a mandate proceeding brought by the Governor of the State of California, the real party in interest filed a peremptory challenge to the trial judge 14 days after the order of general assignment was mailed to the parties. The trial court ruled the challenge was untimely. Reversing, the appellate court noted that section 170.6 allows a party 10 days after notice of the assignment to file a peremptory challenge. “The ‘notice’ required by section 170.6 is the notice prescribed by the chapter of which section 1013 is a part, including notice given by service by mail. . . . The chapter specifically addresses the service of court orders in section 1019.5.” (Id. at pp. 1105-1106.) Section 1019.5 states that notice of an order shall be given “in the manner provided in this chapter.” (§ 1019.5, subds. (a) & (b).)

Section 170.3 provides that a party can seek review of an order determining the disqualification of a judge “within 10 days of notice to the parties of the decision . . . .” (§ 170.3, subd. (d).) Using the same reasoning as in California Business Council v. Superior Court, supra, 52 Cal.App.4th 1100, we conclude the provisions of section 1013 apply to extend the time to file a petition for review of such an order when notice is served by mail, and the petition in this case was timely filed.

Reese’s peremptory challenge was untimely.

Section 170.6 allows a party to disqualify a judge for prejudice based on a sworn statement, without having to establish the prejudice as a fact. The court must accept the challenge if it is timely filed. A late-appearing party can make the motion within 10 days of its appearance, but “[i]n no event shall any judge, court commissioner, or referee entertain the motion if it be made after the drawing of the name of the first juror, or if there be 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.” (§ 170.6, subd. (a)(2).)

Karen argues Reese’s peremptory challenge could not be granted because it was made after the trial court had taken evidence and made a finding on the date of separation. She cites Stephens v. Superior Court (2002) 96 Cal.App.4th 54 in support of her contention.

Stephens involved a trust proceeding where the surviving wife and six children of the trustor disagreed among themselves about which combination of them was to serve in the three cotrustee positions. The wife, Maxine, was the income beneficiary of the trust, and any remaining principal at her death was to be distributed in equal shares to the six children. The initial cotrustees were siblings James, John and Dawn. When Dawn resigned in 1999, James and John petitioned the court to resolve a dispute over who should fill the vacant position and for modification of the trust to allow majority rather than unanimous voting among the trustees. Maxine joined in the petition. Then sibling Gail filed a petition seeking removal of James and John and the appointment of a corporate trustee. The trial court found that siblings Gwen, Gail, and David, respectively, were eligible for the vacant cotrustee position and refused to modify the trust to provide for majority rather than unanimous voting among the cotrustees.

While the court’s orders were on appeal, Gwen filed a petition seeking interim relief because she was being denied the opportunity to serve as the third cotrustee; she asked the court to remove the cotrustees altogether and replace them with a corporate trustee or to direct the cotrustees to act unanimously pending the outcome of the appeal. Gwen’s petition was opposed by James, John, and Maxine. David, making his first appearance in the proceedings, filed a joinder in the opposition by James, John, and Maxine; he then filed a peremptory challenge to the judge who had been assigned to the case for all purposes. The court found David’s peremptory challenge was barred because Gwen’s petition was “a continuation of, and ancillary to, the previous proceedings in which [the challenged trial judge] determined contested fact issues.” (Stephens v. Superior Court, supra, 96 Cal.App.4th at p. 63.)

For purposes of a peremptory challenge, “a proceeding is a continuation of the original action out of which it arises if it involves ‘substantially the same issues’ as the original action.” (McClenny v. Superior Court (1964) 60 Cal.2d 677, 684.) “The rationale for the [continuation of proceedings] rule is that if a peremptory challenge is allowed in a proceeding that is a continuation of a prior proceeding in which trial occurred, ‘it would mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, and without any judicial determination of the facts, be disqualified. . . . Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him . . . in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues.’ [Citation.]” (Stephens v. Superior Court, supra, 96 Cal.App.4th at p. 60.)

The Stephens court acknowledged that Gwen was not a party to the original proceedings, but “her petition directly concerned the controversy adjudicated in those proceedings . . . . The broad issue in both proceedings was the propriety and reasonableness of James and John’s conduct as cotrustees and whether they mismanaged the trust. Although the parties who have participated in the proceedings commenced by Gwen’s petition are not exactly the same as those who participated in the previous proceedings, the interested parties are the same, namely Maxine, the income beneficiary of the trust[,] and the six children as remainder beneficiaries or cotrustees of the trust.” (Stephens v. Superior Court, supra, 96 Cal.App.4th at p. 63.)

The scenario in Stephens differs significantly from the one in Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150. There, three unrelated plaintiffs filed separate actions against Nissan Motors, each alleging personal injury caused by an acceleration defect in a Nissan 300ZX. The cases were initially assigned to three different judges, and no peremptory challenges were filed. After discovery and pretrial proceedings, the superior court ordered consolidation of the three cases on its own motion and transferred the second and third cases to the judge assigned to the first case. Nissan immediately filed peremptory challenges to the judge in the second and third cases. The judge denied them as untimely, “reasoning that no challenge to his assignment had been made in the [first] action, he had made pretrial rulings in that matter, and therefore it was too late to challenge his assignment in the [second and third] actions which involved similar issues.” (Id. at p. 154.)

The court reversed, finding the challenges timely and appropriate. Nissan had the right to acquiesce to a particular judge in one case while challenging him in another, “even if that matter raises issues closely related to those in the first action.” (Nissan Motor Corp. v. Superior Court, supra, 6 Cal.App.4th at p. 155.) The court emphasized the separateness of the actions: “[T]he [second and third] actions cannot be characterized as ‘continuations’ of the [first] matter. [Citation.] The three cases arise out of different injuries and damages, occurring in automobile accidents involving different vehicles at different times and places, and under different fact patterns. They are thus three separate and distinct cases, entitled to separate challenges under section 170.6. The fact that [the judge] rendered pretrial rulings on the merits in the [first] matter did not affect petitioner’s right to challenge him in the [second and third] actions.” (Id. at pp. 155-156.)

The situation before us is more analogous to Stephens than Nissan. Karen claims Sidney used community funds to buy the Orange property, coerced her to relinquish her interest, sold the Orange property, used funds from the sale to buy the Anaheim Hills property, and then put the Anaheim Hills property in Reese’s name. Sidney and Reese contend he loaned Reese the money to buy the Anaheim Hills property and took back an interest-bearing note. Karen’s complaint for joinder against Reese seeks quiet title, reformation of deed, and a constructive trust; basically, the complaint supports Karen’s attempts in the dissolution to trace community funds to the Anaheim Hills property and claim an interest in it. Thus, the issues raised by the complaint for joinder are substantially the same as those raised in the dissolution action, making the joinder a continuation of the original proceedings notwithstanding the lack of absolute congruence of issues and parties.

Reese argues California Rules of Court, rule 5.160, relating to joinder of parties in family law cases, supports her contention that the complaint for joinder constitutes a completely separate action with separate issues, thus entitling her to a peremptory challenge. Rule 5.160 provides: “Except as otherwise provided in this chapter or by the court in which the proceeding is pending, the law applicable to civil actions generally governs all pleadings, motions, and other matters pertaining to that portion of the proceeding as to which a claimant has been joined as a party to the proceeding in the same manner as if a separate action or proceeding not subject to these rules had been filed.” This rule “make[s] ordinary procedural law applicable” to actions under the Family Code. (5 Witkin, Cal. Procedure (4th ed. 1997 & 2006 supp.) Pleading, § 840.) It does not change the analysis of the continuing proceedings rule.

Reese argues she has a due process right to file a peremptory challenge.^[2] It is true that parties joined in a marital action have due process rights. In In re Marriage of Davis (1977) 68 Cal.App.3d 294, the court confirmed that the family law court had jurisdiction to join the mother of one spouse who held title to property alleged to be part of the community and it had jurisdiction to try the mother’s title to the property. “The only limitation was the safeguarding of [the mother’s] right to due process of law. When she was given notice and a right to be heard, her due process rights were satisfied.” (Id. at p. 301.) It is also true that “[t]he right to exercise a peremptory challenge under . . . section 170.6 is a substantial right and an important part of California’s system of due process that promotes fair and impartial trials and confidence in the judiciary. [Citation.] As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.” (Stephens v. Superior Court, supra, 96 Cal.App.4th at pp. 61-62.)

The right to exercise a peremptory challenge against a judge, however, did not exist in the common law; rather, it is “a creation of statute.” (Home Insurance Co. v. Superior Court (2005) 34 Cal.4th 1025, 1031.) By enacting section 170.6, the Legislature achieved “a balance between the needs of litigants and the operating efficiency of the courts” by limiting peremptory challenges to one per action, one per side, and none after the beginning of trial. (Id. at p. 1032.) In this way, “section 170.6 is designed to prevent abuse by parties that merely seek to delay a trial or obtain a more favorable judicial forum. . . . To effectuate the Legislature’s intent, our courts ‘have been vigilant to enforce the statutory restrictions on the number and timing of motions permitted.’ [Citations.] We have not permitted ‘”’a device intended for spare and protective use to be converted into a weapon of offense and thereby to become an obstruction to efficient judicial administration.”’ [Citations.]” (Ibid.)

The prohibition against peremptory challenges after the commencement of trial is an absolute one: “In no event shall any judge, court commissioner, or referee entertain the motion if it be made after the drawing of the name of the first juror, or if there be 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.” (§ 170.6, subd. (a)(2), italics added.) Karen’s complaint for joinder of Reese was a continuation of the dissolution proceedings, in which witnesses had been sworn and evidence taken. Accordingly, Reese’s peremptory challenge was untimely.

DISPOSITION

We have followed the procedures and given the notices described in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-183. Each party had an opportunity to file a written response and did so. Let a peremptory writ of mandate issue directing respondent court to vacate its order of October 26, 2005, granting Reese’s section 170.6 motion and to enter a new and different order denying her peremptory challenge as untimely filed. Each party is to bear his or her own costs.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

^[1] All statutory references are to the Code of Civil Procedure.

^[2] Reese contends the principles of due process entitle her to litigate all the issues Karen must prove in the complaint for joinder, including whether the funds used to purchase the Anaheim Hills house were separate or community property. She also contends she is entitled to a jury trial. These contentions are separate from the question of her due process right to file a peremptory challenge and are not before us. Accordingly, we decline to consider them here.