Friday, March 8, 2002
Peremptory Challenge Not Available on Judge Who Is Reassigned Case—C.A.
By a MetNews Staff Writer
The Court of Appeal for this district has ordered that a peremptory challenge to a judge be stricken based on it having been filed one year too late.
Although Code of Civil Procedure Sec. 170.6(2) authorizes a challenge within 10 days of a notice of an “all purpose” assignment to a judge, and Los Angeles Superior Court Judge Ray Hart was challenged two days after such notice, the appeals court said the challenge was untimely, under the unique circumstances of the case.
Hart been assigned the case in September, 2000 and had made rulings; he went on sick leave and the case was temporailt assigned to other judges; it was then assigned “for all purposes” to Judge Barbara Meiers, who drew a peremptory challenge from the plaintiff; Hart returned to work and was again assigned the case; a defendant quickly challenged him, contending a new 10-day period had been triggered.
Los Angeles Superior Court Judge Gary Klausner, who supervises the downtown Civil Department, shifted the case to another judge, and the plaintiff sought a writ of mandate.
It was granted Wednesday by Div. Seven, with Justice Fred Woods writing the opinion. Woods noted that the case was one of first impression, but the opinion was not certified for publication.
The jurist wrote:
“Neither the statutes themselves nor existing case law address the circumstance presented here: What happens when a judge previously assigned to the case is absent for a time, the case is briefly (though “permanently”) reassigned for all purposes, including trial, and then that same judge—who had already been assigned to the case for all purposes, including trial (thus triggering § 170.6, subd. (2) once before)—is reassigned to the case?”
Answering the question, Woods resolved it in favor of denying a peremptory challenge, saying:
“We find nothing in the statutory scheme or case law to support the proposition that a party is afforded the windfall of a second opportunity to seek the disqualification of a judge already given an all-purpose assignment in the case, merely because of the unique circumstances that occurred here.”
Woods observed that the only second chance the Legislature has provided for is the right to challenge a judge following reversal and remand.
“[W]e decline to indulge the fiction…that Judge Hart ‘became’ a ‘new’ judge in the case for purposes of retriggering the 15-day time limit when, after a six-day reassignment to Judge Meiers, the case was returned to him,” he wrote.
Former Los Angeles District Attorney Ira Reiner joined with two colleagues at Riley & Reiner, Robert L. Clarkson and Leslie R. Smith, in arguing for the plaintiff in favor of the writ. Court Counsel Frederick R. Bennett represented the Los Angeles Superior Court in opposing the writ, and Bruce M. Lorman acted for the defendant in asserting that the challenge was timely.The case is Infant & Nutritional Products, Inc v. Superior Court, Fylling, RPI, B154321.
Copyright 2002, Metropolitan News Company