L.A. County Metropolitan Transportation Auth. v. Superior Court ( 2021 )

Filed 9/13/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LOS ANGELES COUNTY B311725
METROPOLITAN
TRANSPORTATION AUTHORITY, (Los Angeles County
Super. Ct. No.
Petitioner, BH013505)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent.
ORIGINAL PROCEEDINGS; petition for writ of mandate.
Superior Court of Los Angeles County, Ronald S. Coen, Judge.
Petition granted.
Kendall Brill & Kelly, Robert E. Dugdale and Laura W.
Brill, for Petitioner.
Leah C. Gershon for Respondent.
In this writ proceeding instituted by the Los Angeles
Metropolitan Transportation Authority (MTA), we principally
consider whether a magistrate’s decision to authorize a search
warrant constitutes a decision on a “contested fact issue[ ]
relating to the merits” under Code of Civil Procedure section
170.6 (section 170.6).
MTA’s petition arises from a special proceeding it filed on
March 8, 2021, to quash a search warrant. The warrant was
authorized by Judge Ronald Coen on February 26, 2021.
Consistent with Penal Code section 1538.5, subdivision (a), the
superior court assigned the motion to quash to Judge Coen for
decision on March 18, 2021.
On April 1, 2021, MTA filed a section 170.6 peremptory
challenge against Judge Coen. Judge Coen concluded he had
decided a contested issue on the merits when he issued the
search warrant and struck the section 170.6 peremptory
challenge as untimely.
MTA then filed this petition for writ of mandate. We
issued an order to show cause and stayed the hearing on the
motion to quash. In a response to the petition and our order to
show cause, counsel for the respondent court conceded a
magistrate’s issuance of a search warrant is not a determination
on a contested fact issue relating to the merits within the
meaning of section 170.6 and MTA’s peremptory challenge was
timely. As we will briefly explain, that is correct.
“An application for search warrant . . . almost invariably is
presented ex parte.” (People v. Mack (1977) 66 Cal.App.3d 839,
844.) In most cases, the party to be searched is unaware law
enforcement is seeking a search warrant and learns of it only
when the warrant is served. The party has no opportunity to
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contest issuance of the search warrant and no opportunity to
peremptorily challenge the magistrate authorizing it. For this
reason, ex parte determinations are not “the result of a hearing
upon a contested issue” within the meaning of section 170.6,
subdivision (a)(2) such that a peremptory challenge would be
barred. (Thompson v. Superior Court (1962) 206 Cal.App.2d 702,
709; see generally Grant v. Superior Court (2001) 90 Cal.App.4th
518, 525 [“[A]n otherwise timely peremptory challenge must be
denied if the judge has presided at an earlier hearing which
involved a determination of contested factual issues relating to
the merits”].) A provision of the Penal Code that expressly
contemplates a section 170.6 challenge will lie against a
magistrate who initially issued a search warrant further
reinforces our conclusion. (Pen. Code, § 1538.5, subd. (b)
[providing a motion challenging a search warrant, whether by
way of a motion to suppress evidence or a motion to quash the
search warrant (see People v. Hobbs (1994) 7 Cal.4th 948, 975),
should first be heard by the magistrate who issued the search
warrant—but “subject to the provisions of Sections 170 to 170.6,
inclusive, of the Code of Civil Procedure”].)
As to the timeliness of the section 170.6 challenge here, a
section 170.6 peremptory challenge is timely if made at least five
days before a hearing, where the hearing date is known more
than ten days in advance, and the judicial assignment is not for
all purposes. (§ 170.6, subd. (a)(2).) We have already explained
an application for a search warrant is an ex parte procedure and
not a “hearing” for purposes of section 170.6; the relevant hearing
is accordingly the hearing on the motion challenging the warrant.
MTA’s challenge was timely filed prior to that hearing and should
have been granted.
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DISPOSITION
The petition for writ of mandate is granted. The cause is
remanded to the superior court with directions to grant
petitioner’s section 170.6 challenge and to reassign the matter to
a new judge.
CERTIFIED FOR PUBLICATION
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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