Salinas v. Superior Court CA2/5 ( 2015 )

Filed 12/22/15 Salinas v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
NICOLE SALINAS et al., B267430
Petitioners, (Los Angeles County
Super. Ct. No. BC569227)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
FERNANDO GALVIS ORTIZ et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Elizabeth R. Feffer, Judge. Petition
granted.
The Homampour Law Firm and Corey C. Arzoumanian; Esner, Chang & Boyer
and Stuart B. Esner; The Torkzadeh Law Firm and Reza Torkzadeh, for Petitioners.
No appearance for Respondent.
No appearance for Real Parties in Interest.
__________________________
This petition for writ of mandate involves the timeliness of plaintiffs’ peremptory
challenge against the trial court under Code of Civil Procedure section 170.6.1 We hold
that plaintiffs’ section 170.6 challenge to Judge Elizabeth R. Feffer in Department 39 of
the Los Angeles County Superior Court was timely filed within the statutory period after
notice of the all purpose assignment to Judge Feffer.
FACTUAL AND PROCEDURAL BACKGROUND
This matter involves a products liability case filed by plaintiffs Nicole Salinas and
Shanel Salinas, by and through her Guardian ad Litem, Alisa Beasley, (plaintiffs) against
defendants Nissan Motor Co., LTD, Nissan North America, Inc., Nissan Design America,
Inc., and Nissan Technical Center North America, Inc. (Nissan). The case was originally
assigned to Judge Elia Weinbach in Department 92 of the Los Angeles County Superior
Court.
Judge Weinbach posted an unsigned tentative order on the court’s website in
advance of a scheduled August 21, 2015 hearing on a motion filed by Nissan. The record
does not contain a printout of the tentative order as it was posted on the website.
However, plaintiffs have submitted two emails containing the cut-and-pasted text of the
tentative order. The first is an August 19, 2015 email from Nissan’s counsel to plaintiffs’
counsel. The email states: “Did you see this? Looks like you got your wish.” It is
followed by what appears to be the text of the tentative order. The second email is from
plaintiffs’ counsel to Judge Weinbach and his clerk, with copies to Nissan’s counsel.
This second email, dated August 20, 2015, requests clarification about whether the
parties should appear for the scheduled hearing. This email is also followed by what
appears to be a cut-and-pasted version of the tentative order.
1
All statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2
In both emails, the tentative order is titled: “[TENTATIVE] ORDER
TRANSFERRING CASE TO IC COURT AND VACATING ALL FUTURE DATES
CALENDARED IN PERSONAL INJURY HUB COURT (INCLUDING 8/21/15
HEARING DATE.” The text of the tentative order reads: “At the direction of
Department One, this court determines, sua sponte, that this matter[] is complicated based
on either the number of pretrial hearings or the complexity of the issues presented. This
case is transferred and reassigned to an IC court for all purposes and all future
proceedings to Judge ________, Department ________, Central District. . . . The
receiving court will notify counsel when to appear for a Case Management/Trial Setting
Conference. Plaintiff is ordered to give notice.”
Upon viewing the tentative order, counsel for both parties attempted to reach
Judge Weinbach’s clerk in Department 92 to ascertain whether they should appear at the
August 21, 2015 hearing. Christopher Corcios, a legal assistant employed by plaintiffs’
counsel, spoke with the clerk in Department 92 on August 20, 2015. The clerk informed
him that the case had been transferred. Corcios testified that he “asked to which
department and she said that there would be a minute order going out.” She stated that
Nissan had already submitted on the tentative. When Corcios told her that plaintiffs
submitted as well, she said, “Okay. A minute order will be sent out.” Corcios testified
that Judge Weinbach’s clerk did not tell him where the case was going or when a minute
order would issue, only that a minute order would be “going out.” He further testified
that the clerk did not tell him that his office was to give notice.
On August 21, 2015, Judge Weinbach issued a minute order stating: “All submit
on court’s online tentative ruling without appearance. Tentative becomes order: [¶]
Transferred to D39 (Elizabeth Feffer) in Mosk courts as ‘complicated P.I.’ case. [¶]
Transfer order filed. [¶] Plaintiff to give notice.” According to plaintiffs’ counsel, his
office did not receive the order, and therefore plaintiffs did not give notice of the transfer
as directed by the order. Plaintiffs’ counsel stated that he did not check for a copy of the
final order or call the clerk after August 21, 2015, because he had been told a minute
order would be going out.
3
On September 2, 2015, Judge Feffer issued a notice of case management
conference and hearing to schedule motions. That notice states: “Your Case
Management Conference has been scheduled for October 1, 2015 at 8:45 am in Dept.
39.” The document indicates notice was sent to plaintiffs’ counsel. However, plaintiffs’
counsel states his office never received the notice, possibly because the mailing address
had the incorrect zip code. The zip code on the notice is 90048, but plaintiffs’ counsel’s
zip code is 91403.
According to declarations filed by plaintiffs’ counsel, plaintiffs did not learn that
the matter had been transferred to Judge Feffer in Department 39 until September 21,
2015, when they received Nissan’s case management statement. The next day, on
September 22, 2015, plaintiffs filed a peremptory challenge to Judge Feffer under section
170.6, explaining that they did not know of the assignment to Department 39 until
September 21, 2015.
On September 24, 2015, Judge Feffer deemed the peremptory challenge untimely,
stating: “Judge Weinbach’s tentative ruling for the August 21, 2015 hearing was posted
online prior to August 21, 2015. The tentative ruling contained language that the Court
was vacating the pending motion and all dates calendared in the Personal Injury Court,
and was transferring and reassigning the action to an Independent Calendar Court,
specifically Judge Feffer in Department 39. [¶] The parties submitted on the tentative
ruling, and the August 21, 2015 hearing did not go forward. Plaintiff was ordered to give
notice. [¶] On August 21, 2015, the Court adopted the tentative ruling as the order of the
Court and signed it. Therefore, plaintiffs had notice prior to the Court’s August 21, 2015
transfer order that the Court ordered the action transferred and reassigned to Judge Feffer
in Department 39 (an I/C Court).”
Plaintiffs filed an ex parte application for reconsideration, which was denied
without argument on October 1, 2015. On October 9, 2015, plaintiffs timely filed a
petition for writ of mandate and this court issued an alternative writ of mandate. In
response to this court’s alternative writ, the trial court held a hearing, questioned
plaintiffs’ counsel, and took testimony from counsel’s legal assistant, Corcios. At the
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hearing, Judge Feffer stated that upon receipt of the peremptory challenge, she spoke to
Judge Weinbach and his clerk, who assured her that Judge Weinbach’s tentative transfer
order included Judge Feffer’s name and department number.
According to Judge Feffer, Judge Weinbach’s clerk has “no doubt in her mind that
she knew that she told [Corcios] where [the case] was going; that’s her standard practice.
That’s what she does in every case.” The trial court’s file does not contain a copy of the
unsigned tentative order. However, it contains a copy of the signed order, indicating that
Judge Weinbach crossed out the bracketed word “[TENTATIVE].” That signed order
contains Judge Feffer’s name and department. Based on that document and on what
Judge Weinbach and his clerk told her, Judge Feffer concluded that the tentative order, as
posted online, included her name and department.
Following the hearing on November 25, 2015, Judge Feffer issued a minute order
stating: “The court is satisfied that the notice date of the reassignment of this action from
Judge Elia Weinbach in Department 92 to Judge Elizabeth R. Feffer in Department 39 is
August 21, 2015 at the latest. Both plaintiff and defendant submitted to Judge
Weinbach’s tentative ruling on August 20, 2015. That tentative required plaintiffs’
counsel to give notice. Both Judge Weinbach’s signed order and the minute order of
August 21, 2015 [indicate] that this case is reassigned to Judge Feffer in Department 39.
Plaintiffs’ counsel provides no indication that he acted diligently to obtain the court’s
order so that he could give notice.” Based on this determination, Judge Feffer elected not
to comply with this court’s alternative writ of mandate. We now grant the petition for
writ of mandate.
STANDARD OF REVIEW
An order denying a peremptory challenge filed under section 170.6 is not an
appealable order and may be reviewed only by way of a petition for writ of mandate. (§
170.3, subd. (d).) We review the order for abuse of discretion. (Hemingway v. Superior
Court (2004) 122 Cal. App. 4th 1148, 1153.) “[A] trial court abuses its discretion when it
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erroneously denies as untimely a motion to disqualify a judge pursuant to section 170.6.”
(Ibid.; see Zilog, Inc. v. Superior Court (2001) 86 Cal. App. 4th 1309, 1315 [same].)
DISCUSSION
“‘Section 170.6 permits a party to obtain the disqualification of a judge for
prejudice, upon a sworn statement, without being required to establish it as a fact to the
satisfaction of a judicial body.’ (Barrett v. Superior Court (1999) 77 Cal. App. 4th 1, 4.)
Thus, ‘[w]here a disqualification motion is timely filed and in proper form, the trial court
is bound to accept it without further inquiry.’ (Ibid.) Disqualification is required ‘even if
the court suspects that the party has abused its right to utilize section 170.6.’ (La
Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal. App. 4th 1500, 1505.)”
(Zilog v. Superior Court, supra, 86 Cal.App.4th at p. 1315.)
Where a peremptory challenge is “directed to the trial of a civil cause that has
been assigned to a judge for all purposes, the motion shall be made to the assigned judge
or to the presiding judge by a party within 15 days after notice of the all purpose
assignment, or if the party has not yet appeared in the action, then within 15 days after
the appearance.” (§ 170.6, subd. (a)(2).) As used in this section, the word “notice”
means “notice by the means specified in the chapter of which section 1013 is a part.”
(California Business Council v. Superior Court (1997) 52 Cal. App. 4th 1100, 1105.)
Where a court’s notice of assignment to a judicial officer is deficient, the time for the
filing of a peremptory challenge may run from the time a party receives actual notice of
the assignment. (See Cybermedia, Inc. v. Superior Court (1999) 72 Cal. App. 4th 910,
914.)
If the timeliness of a peremptory challenge involves disputed evidence, the trial
court may hold a hearing and make factual determinations based on admissible evidence.
(Shipp v. Superior Court (1992) 5 Cal. App. 4th 147, 151, disapproved on other grounds
by People v. Superior Court (Lavi) (1993) 4 Cal. 4th 1164.) “Evidence adduced at the
hearing may include the original record of the assignment of the case, the trial court’s
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policy regarding assignment of cases, evidence of assignment policy, and evidence of the
circumstances surrounding the assignment of the specific cases.” (Shipp v. Superior
Court, supra, at p. 151.)
The only admissible evidence before Judge Feffer indicates the tentative order that
was posted online did not include any information about the department or judge to
whom the matter was being transferred. Emails sent by counsel for both parties on
August 19, 2015 and August 20, 2015, include what appear to be the cut-and-pasted text
of the tentative order. In both emails, the text of the tentative order is identical, and
includes blank placeholders for the department and judge to whom the matter was being
transferred. Mere knowledge that a matter will be transferred, without notice of the
department or judicial officer to whom the matter is being transferred, is not sufficient to
trigger the time to file a peremptory challenge. (See People v. Superior Court (Lavi),
supra, 4 Cal.4th at p. 1180 [for case assignment to be an “all purpose assignment” for
purposes of triggering a litigant’s duty to file a disqualification motion, “the method of
assigning cases must ‘instantly pinpoint’ the judge whom the parties can expect to
ultimately preside at trial” and process the case “in its totality”].)
The trial court may judicially notice documents within the court’s own file. (Evid.
Code, § 451; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal. App. 4th 875, 882). However, the trial court file in this case apparently does not
include a copy of the unsigned tentative order that was posted online by Judge Weinbach.
In the absence of such documentation, the uncontroverted admissible evidence in the
record is that the tentative order posted online did not indicate the matter was being
transferred to Judge Feffer in Department 39. As such, it could not have triggered the 15-
day time limit for plaintiffs to file a peremptory challenge under section 170.6. (See
People v. Superior Court (Lavi), supra, 4 Cal.4th at p. 1180 [method of all purpose
assignment must “instantly pinpoint” the judge to trigger time to file disqualification
motion].)
There is also no admissible evidence that plaintiffs’ counsel was orally informed
by the court or its staff that the matter would be transferred to Judge Feffer in Department
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39. Corcios testified under oath that Judge Weinbach’s clerk did not tell him to which
department the matter was being transferred, only that a minute order would issue. Any
information to the contrary gleaned by Judge Feffer in out-of-court conversations with
another judicial officer or clerical staff is not admissible evidence, as it is not in the form
of sworn testimony, affidavit, or declaration (Evid. Code, § 710), nor is it properly the
subject of judicial notice (Evid. Code, § 450 [“Judicial notice may not be taken of any
matter unless authorized or required by law”]).
There is also no evidence that plaintiffs received notice of Judge Weinbach’s final
transfer order issued on August 21, 2015. The order itself directs plaintiffs to provide
notice of the ruling, but fails to provide for notice to plaintiffs. Plaintiffs’ counsel has
submitted declarations stating they did not receive the order, and there is no admissible
evidence in the record to contradict that statement. Assuredly, it would have been
prudent for plaintiffs’ counsel to check the court’s docket for a copy of the final order
after being advised that the order would be forthcoming. However, we are aware of no
authority charging a party with notice of case assignment under these circumstances.
Approximately one month elapsed between the date the parties submitted on Judge
Weinbach’s tentative order and the date that plaintiffs’ counsel learned of the
reassignment to Judge Feffer. There are, on occasion, delays of this length in the superior
court’s issuance of orders after matters are taken under submission, as well as delays in
mailing. Counsel’s statement that he waited for a month without checking for a final
order is not inherently unbelievable, given his understanding that a minute order would
be mailed when the court finalized its decision.
In finding plaintiffs’ peremptory challenge untimely, the trial court also noted that
the court served a notice of a case management conference on September 2, 2015,
indicating that the case management conference would be held in Department 39.2
2 Plaintiffs state they did not receive this notice of case management conference,
which contains the zip code 90048 when the zip code for plaintiffs’ counsel’s office is
actually 91403. It is a party’s obligation to provide the court with an accurate address of
record. In this case, plaintiffs’ own complaint indicates that counsel’s zip code is 90048
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Because this notice was served by mail, plaintiffs’ 15-day time limit to file a challenge
under section 170.6 was extended by five days, to September 22, 2015. (See § 1013,
subd. (a); California Business Council v. Superior Court, supra, 52 Cal.App.4th at p.
1105.) Plaintiffs’ peremptory challenge was, in fact, filed on September 22, 2015. It was
therefore timely and the trial court’s denial of the peremptory challenge was abuse of
discretion. (See Hemingway v. Superior Court, supra, 122 Cal.App.4th at p. 1153; Zilog
v. Superior Court, supra, 86 Cal.App.4th at p. 1315.)
DISPOSITION
The petition for writ of mandate is granted. The trial court is directed to vacate its
September 24, 2015 order denying the peremptory challenge and issue a new and
different order granting the peremptory challenge pursuant to Code of Civil Procedure
section 170.6.
KRIEGLER, J.
We concur:
TURNER, P. J. BAKER, J.
and there is no evidence of a notice of change of address on file. Notice provided to
counsel’s address of record is sufficient notice under section 1013. (See Cal. Rules of
Court, rule 8.32(a) [“In any case pending before the court, the court will use the mailing
address . . . that an attorney or unrepresented party provides on the first document filed in
that case as the mailing address . . . of record unless the attorney or unrepresented party
files a notice [of change of address]”].)
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