Fry v. Superior Court , 166 Cal. Rptr. 3d 328 ( 2013 )

Filed 12/19/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JACK FRY et al., B248923
Petitioners, (Los Angeles County
Super. Ct. No. BS140201)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent.
ORIGINAL PROCEEDINGS in mandate. Joanne O’Donnell, Judge.
Petition denied.
Rosen Bien Galvan & Grunfeld, Ernest Galvan and Margot Mendelson, for
Petitioners.
Frederick R. Bennett for Respondent.
___________________________________
Petitioners Jack Fry, Gary Cline, Sandra Carlsen, Yvette Moreno, and the
Retired Fire & Police Association argue the trial court erred by denying as
untimely their motion to disqualify itself pursuant to Code of Civil Procedure
section 170.6.1 We disagree. The petition is denied.
BACKGROUND
This petition arises from writ proceedings below filed against the City of
Los Angeles. On March 18, 2013, the clerk of the Los Angeles Superior Court
notified petitioners that the case had been assigned to Judge Joanne O’Donnell in
Department 86, a writs and receivers department. On April 3, petitioners’ counsel
faxed an affidavit of prejudice concerning O’Donnell to the court’s “central fax
filing office.” The affidavit, set forth on Los Angeles Superior Court Form
LACIV 015, which is entitled:
“AFFIDAVIT OF PREJUDICE
PEREMPTORY CHALLENGE TO JUDICIAL OFFICER
(Code Civ. Proc., § 170.6)”
Form LACIV 015 provided in full the following: “I am a party (or attorney
for a party) to this action or special proceeding. The judicial officer named above,
before whom the trial of, or a hearing in, this case is pending, or to whom it has
been assigned, is prejudiced against the party (or his or her attorney) or the interest
of the party (or his or her attorney), so that declarant cannot, or believes that he or
she cannot, have a fair and impartial trial or hearing before the judicial officer.”
The affidavit identified the parties and case number, identified Judge
O’Donnell as the bench officer being challenged, and set forth her department
number. No separate motion accompanied the affidavit and no plea for relief was
made other than was implied by the title of Form LACIV 015.
1
All further statutory references are to the Code of Civil Procedure.
2
Along with Form LACIV 015, petitioners’ counsel transmitted Judicial
Council Form MC-005, entitled “Facsimile Transmission Cover Sheet.” Form
MC-005 had three lines addressed “TO THE COURT:”
“1. Please file the following transmitted documents in the order listed below:”
“2. □ Processing instructions consisting of: _____ pages are also transmitted.”
“3. □ Fee required □ Filing fee □ Fax fee (Cal. Rules of Court, rule 10.815)”
Petitioners’ counsel indicated under the first line that the document being
transmitted was Form LACIV 015, and under the third that he would be paying the
fax fee set forth in California Rules of Court, rule 10.815. Counsel left the box in
the second line blank, indicating no processing instructions would be transmitted.
The clerk’s office marked the prejudice affidavit as received on April 3,
2013, the day it was transmitted, but took no further action, i.e., did not forward it
either to Judge O’Donnell or the presiding judge.
On May 14, 2013, petitioners’ counsel inquired about the affidavit and was
informed it had been lost.
Counsel thereafter applied ex parte to Judge O’Donnell for a nunc pro tunc
order deeming the affidavit to have been filed as of April 3. The parties stipulated
to that order but Judge O’Donnell denied both the application and petitioners’
section 170.6 challenge, stating in a minute order, “Pursuant to Code of Civil
Procedure Section 170.6, ‘the motion shall be made to the assigned judge or to the
presiding judge.’ [¶] Fax-filing to the clerk’s office is insufficient. [¶] Plaintiff’s
ex parte application does not include evidence that any 170.6 was timely filed in
Department 86 or with the Presiding Judge. It is of no consequence that the
parties have stipulated to the filing of the peremptory challenge. See Code of
Civil Procedure Section 170.”
3
After the court denied petitioners’ 170.6 challenge they filed a petition for a
writ of prohibition and or mandate, complaining the court had no authority to find
that fax filing was “insufficient” for a section 170.6 challenge. Real parties City
of Los Angeles and the Board of the Los Angeles Department of Fire and Police
Pensions take no position on this petition.
We invited a response from the superior court due to the impact any ruling
would have on the court’s case management system. (Hemingway v. Superior
Court (2004) 122 Cal.App.4th 1148, 1153 [treating a trial court’s return as an
amicus curiae brief filed in support of real party in interest].) After receiving the
court’s informal response, we issued an order to show cause and invited a formal
return from the superior court. The court then filed a return, to which petitioners
have replied.
After oral argument we requested further briefing on three questions: (1)
Did the reference to Judge O’Donnell on Los Angeles Superior Court Form
LACIV 015 have the effect of directing the form to Judge O’Donnell? Was the
form otherwise directed either to Judge O’Donnell or the presiding judge? (2) Did
the facsimile cover sheet accompanying Form LACIV 015 direct the form either to
Judge O’Donnell or the presiding judge? And (3) assuming Form LACIV 015
was not directed to Judge O’Donnell or the presiding judge, did petitioners’ effect
any cure, i.e., take any later action that resulted in such direction?
Petitioners and respondent provided the briefing, which we have
considered.
DISCUSSION
Petitioners contend the trial court erred by ruling a peremptory challenge
submitted by way of facsimile filing to the clerk’s office fails to satisfy the
requirement of section 170.6, subdivision (a)(2) that the challenge “be made to the
assigned judge or to the presiding judge.” Respondent counters with three
arguments. First, respondent argues petitioners’ peremptory challenge was
improper because the prejudice affidavit was unaccompanied by a written or oral
4
motion. Respondent also argues the challenge was improper because it was not
directed to Judge O’Donnell or the presiding judge, as section 170.6 requires.
Finally, respondent argues writs and receivers documents may not be filed at the
court’s central filing window by facsimile transmission. We reject respondent’s
first and third arguments but agree with the second.
A Section 170.6 Challenge set forth on Form LACIV 015 is Proper
“The determination of the question of the disqualification of a judge is not
an appealable order and may be reviewed only by a writ of mandate.” (§ 170.3,
subd. (d).) We review the determination for abuse of discretion. (Zilog, Inc. v.
Superior Court (2001) 86 Cal.App.4th 1309, 1315.)
Section 170.6 was enacted in 1957 and “represented the culmination of
many years’ effort by the organized bar of this state to obtain legislation which
would permit the challenge of a judge for prejudice without an adjudication of
disqualification.” (Johnson v. Superior Court (1958) 50 Cal.2d 693, 696
(Johnson).) Pursuant to the statute, a party or its lawyer may peremptorily
challenge a judge by making “an oral or written motion without prior notice
supported by affidavit” to the effect that the judge is prejudiced against the party
or its attorney so that the party believes it cannot have a fair and impartial trial
before that judge. (§ 170.6, subd. (a)(2).) “If 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 . . . .” (Ibid.)
Thus, “[s]ection 170.6 guarantees ‘to litigants an extraordinary right to
disqualify a judge. The right is “automatic” in the sense that a good faith belief in
prejudice is alone sufficient, proof of facts showing actual prejudice not being
required. [Citations.]’ [Citations.] The object of this section is to provide the
party and attorney with a substitution of judge to safeguard the right to a fair trial
or hearing. [Citation.] This section is intended to ensure confidence in the
judiciary and avoid the suspicion which might arise from the belief of a litigant
5
that the judge is biased where such belief is difficult, if not impossible, to prove.
[Citation.] The section is liberally construed and the trend is to grant relief unless
absolutely forbidden by statute. [Citations.]” (People v. Superior Court (Maloy)
(2001) 91 Cal.App.4th 391, 394-395; see also Stephens v. Superior Court (2002)
96 Cal.App.4th 54, 61-62 [“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”].) “Courts must refrain from any
tactic or maneuver that has the practical effect of diminishing” the important right
to exercise the challenge (Hemingway v. Superior Court, supra, 122 Cal.App.4th
at p. 1158).
The Los Angeles Superior Court immediately attacked the constitutionality
of section 170.6, contending that because the statute required a litigant neither to
specify grounds constituting the basis of, nor prove the prejudice allegation,
section 170.6 unconstitutionally empowered litigants and their attorneys to control
judicial processes. (Johnson, supra, 50 Cal.2d at pp. 695-696.) Our Supreme
Court rejected the argument. It observed that “[p]rejudice, being a state of mind,
is very difficult to prove, and, when a judge asserts that he is unbiased, courts are
naturally reluctant to determine that he is prejudiced.” (Id. at p. 697.) By
permitting a party to avoid the difficult or impossible task of persuading a court
that his or her belief in judicial prejudice is justified, section 170.6 alleviated
suspicion of unfairness while promoting the integrity and fairness of the judiciary.
(Ibid.) Twenty years later in Solberg, supra, the court reaffirmed the rule that a
party seeking disqualification under section 170.6 need neither prove nor even
allege the cause of his or her belief of judicial prejudice. (19 Cal.3d at p. 187.)
Section 170.6 requires the party or attorney submitting the peremptory
challenge to file not only an affidavit of prejudice but also an oral or written
motion “made to the assigned judge or to the presiding judge.” (§ 170.6, subd.
(a)(2); Schoenberg v. Romike Properties (1967) 251 Cal.App.2d 154, 164.) The
6
motion constitutes the application for an order justified by the affidavit. (See §
1003 [a motion is an application for an order].)
Here, petitioners filed only Form LACIV 015. Respondent argues Form
LACIV 015 does not constitute a section 170.6 motion because it contains no
language seeking explicit relief. We disagree. Form LACIV 015 has two
principal lines in its title. The first, “Affidavit of Prejudice,” indicates the
document contains the affidavit necessary for a section 170.6 challenge. The
second line, “Peremptory Challenge to Judicial Officer,” indicates the document
also constitutes the motion that must accompany a 170.6 affidavit. The form is
widely used in Los Angeles County as the only document necessary for a section
170.6 challenge. By fulfilling two roles at once, Form LACIV 015 economically
satisfies section 170.6. There is no requirement either that the form contain
additional language setting seeking an order of disqualification or that the
challenger file a separate document to do so.
Petitioners’ 170.6 Challenge was Improper Because it was not Made to the
Assigned Judge or Presiding Judge
Respondent contends petitioners’ section 170.6 challenge was ineffective
because it was not made to the assigned judge or presiding judge. We agree.
As noted, section 170.6 requires that a peremptory challenge of an assigned
judge be “made to” that judge or the presiding judge. (§ 170.6, subd. (a)(2).)
Furthermore, “[a] party filing a document directly by fax must use the Facsimile
Transmission Cover Sheet (Fax Filing) (form MC-005). The cover sheet must be
the first page transmitted, to be followed by any special handling instructions
needed to ensure that the document will comply with local rules.” (Cal. Rules of
Court, rule 2.304(b).)
Here, petitioners fax filed Form LACIV 015 with the clerk’s office, but
because they provided no processing instructions, they failed to indicate to whom
the challenge should be directed.
7
We are mindful that section 170.6 challenges are to be liberally permitted
notwithstanding minor procedural irregularities. For example, in Solberg, supra,
the court examined whether a prosecutor’s “blanket challenges” to a judge,
purportedly motivated not by any fear of bias but by prosecutorial discontent with
the judge’s prior rulings, constituted bad faith claims of prejudice that should not
be honored under section 170.6. (19 Cal.3d at pp. 188, 203.) The court held that
even blanket prejudice affidavits should be honored notwithstanding the potential
for misuse. (Id. at p. 204; see Retes v. Superior Court (1981) 122 Cal.App.3d 799,
807 [a party’s right to exercise a peremptory challenge may not be defeated by a
correctible failure to sign the prejudice declaration]; Hemingway v. Superior
Court, supra, 122 Cal.App.4th at p. 1158 [trial court may not require a defendant
to file a peremptory challenge too early in a criminal case].)
But we cannot even in the general course endorse the practice of filing a
section 170.6 challenge at the clerk’s window without processing instructions, as
to do so risks delay and duplicative work by both the clerk and assigned judge and
invites mischief. Because section 170.6 provides that a document may be
transmitted to either of two judges it is incumbent upon the petitioner to specify
which is intended. The court clerk has no way to know to whom the petitioner
intends the challenge to be transmitted and no way of knowing how important that
decision is, and should not be forced either to guess the petitioner’s intent or make
further contact with petitioner to obtain clarification. These concerns are
especially pressing in fast-moving departments such as writs and receivers, which
often process cases in days rather than weeks and where substantial judicial
resources may be expended on a matter while an undirected peremptory challenge
works its way through the clerk’s office. Further, a litigant might deliberately fail
to specify to whom a challenge should be directed in the hope that if it becomes
delayed or lost, as petitioners’ challenge was here, it can be ignored or resurrected
nunc pro tunc, as the petitioner chooses, depending on whether the litigant
receives favorable or adverse rulings.
8
Where a form provides a means of supplying processing instructions, a
party is expected to supply them when needed. If it does not, it must bear the risk
of delay, including the risk that a statutory time limitation will run. Because the
peremptory challenge here was directed to no one, it was not “made to” either
Judge O’Donnell or the presiding judge, and denial of the challenge was correct.
Local Rules Permit Central and Facsimile Filing in Writs and Receivers
Departments
As noted above, her minute order rejecting petitioners’ peremptory
challenge Judge O’Donnell noted stated, “Fax-filing to the clerk’s office is
insufficient.” We assume Judge O’Donnell meant, as we conclude above, that the
facsimile filing of an undirected peremptory challenge fails to satisfy section
170.6.
The superior court’s counsel argues that because a 170.6 challenge must be
made to the trial judge or presiding judge it cannot be filed at the court’s central
filing window by facsimile transmission.2 We disagree. “A party may file by fax
directly to any court that, by local rule, has provided for direct fax filing.” (Cal.
Rules of Court, rule 2.304(a).) A court receives a document through the court
clerk and deputy clerks, who are the court’s agents. (Cal. Rules of Court, rule
1.20(a) [“a document is deemed filed on the date it is received by the court clerk”];
see Super. Ct. of L.A. County, Local Rules, rule 1.1 (a) [“clerk” means the Clerk
and any deputy clerks of the Superior Court of Los Angeles County].) Therefore,
filings in writs and receivers cases may be made to the court clerk or a deputy
clerk. We do not read the provision in section 170.6 that a peremptory challenge
be “made to” the assigned or presiding judge as requiring that the challenge be
handed to the judge personally. Rather, the challenge is properly filed with the
2
Nothing in the record suggests Judge O’Donnell based her ruling on this
understanding of the statute.
9
court clerk. The Clerk of the Los Angeles Superior Court and his deputies receive
documents both in courtrooms and central filing windows.
Court counsel argues facsimile filing is not permitted in writs and receivers
departments in the Los Angeles County Superior Court because those departments
are not “general” civil courts for purposes of Rule 2.22. Again, we disagree. Los
Angeles Superior Court Local Rule 2.22 (Rule 2.22) permits facsimile filing “in
general civil, family law, and probate cases.” A writ proceeding is a civil case.
Court counsel notes that subdivision (d)(1) of Los Angeles Superior Court
Local Rule 2.5 which provides that “[f]or purposes of a section 170.6 challenge,
the unlimited civil courts and specialized civil courts (writs and receivers) are
direct calendar courts with an all purpose assignment to which the 15-day all
purpose assignment rule applies.” (Rule 2.5, italics added.) The argument is that
by parenthetically characterizing a writs and receivers department as a
“specialized” civil court, Rule 2.5 implies a writ proceeding is not a “general
civil” case. Because Rule 2.22 permits facsimile filing only in general civil cases,
the argument goes, facsimile filing is not permitted in writs and receivers
departments.
We admire the hermeneutic but are not persuaded.3 Rule 2.22 uses the
word “general” not to modify “civil,” but to modify “civil, family law, and probate
cases.” The intent is not to create a distinction between general and specialized
civil cases but to inform litigants that facsimile filing is ordinarily permitted in
civil, family law and probate cases, and to further inform them that circumstances
might arise where such filing would not be permitted.
In sum, when a court agrees to accept documents by facsimile transmission
at a central filing office—as the superior court has done here—a motion thus
submitted satisfies the requirement that it be “made to” the judge—even a writs
3
Nothing in the record suggests Judge O’Donnell based her ruling on a
similar interpretation of the local rules.
10
and receivers judge—to whom it is directed. If the superior court wishes not to
receive writs and receivers documents or section 170.6 challenges at the central
filing window it may say so. (See Super. Ct. L.A. County, Local Rules, rule 3.4
[specifying that opposition or reply papers must be filed in the relevant
department].) But the court cannot “leave[] counsel guessing when and where a
section 170.6 challenge must be filed.” (Ruiz v. Appellate Division of the Superior
Court (2004) 119 Cal.App.4th 282, 291.)
DISPOSITION
The petition for writ of mandate is denied. Each side to bear its own costs.
CERTIFIED FOR PUBLICATION.
CHANEY, J.
We concur:
MALLANO, P. J.
JOHNSON, J.
11