Metropolitan News-Enterprise


Monday, June 21, 2004


Page 1


Supervising Judge Says Superior Court Rule Change Contemplated for Misdemeanor Case Assignments


By a MetNews Staff Writer


The Los Angeles Superior Court is preparing a rule change to address a June 10 appellate court decision calling into question the way misdemeanor cases in the court’s Central District are assigned for trial, Criminal Courts Supervising Judge David Wesley said Friday.

Wesley said a rule is “in the process of being drafted,” but noted that once drafted it would require approval by the court’s Executive Committee.

Other alternatives for responding to the ruling, including the establishment of a “real master calendar court,” are also under consideration, Wesley said.

Div. One of this district’s Court of Appeal ruled in Ruiz v. Appellate Division of the Superior Court (People), 04 S.O.S. 2887, that the Superior Court’s current method for assigning downtown, East Los Angeles and Hollywood misdemeanor cases to a courtroom for trial is not a “master calendar” system under which lawyers wishing to disqualify a judge must do so at the time the assignment is made.

Writing for the court, Justice Robert Mallano—a former presiding judge of the Superior Court—said that while the method might meet the definition of a master calendar court adopted in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, it does not provide attorneys with adequate notice that objections to a proposed trial judge must be raised when the assignment to that judge is made.

As described by Mallano, the Superior Court’s practice is for limited jurisdiction criminal cases at four Central District facilities to be assigned to a specific courtroom for pretrial hearings. When a case is ready for trial, the judge in that courtroom consults with an assistant supervising judge or the a court coordinator to identify a judge who is available to try it.

Misdemeanor defendant Javier Ruiz challenged the procedure after Judge Richard F. Walmark ruled the challenge Ruiz filed under Code of Civil Procedure Sec. 170.6 upon appearing in Walmark’s court for trial was was untimely.

Though in general Sec. 170.6 permits a judge to be challenged, based on an unsupported allegation of prejudice, at any time before a trial or hearing begins, the law includes several exceptions, among them a “master calendar” exception.

Sec. 170.6(a)(2) provides that if the challenge is “directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.”

Mallano said Ruiz’s writ petition posed a question different from that confronted by the high court in Lavi.

“[T]he issue before the court in Lavi,” Mallano explained, “was whether a court that had been labeled a master calendar was acting in a master calendar capacity when it assigned a case that was not ‘a ready case to a ready courtroom.’...The question here is the opposite: whether a court that does not bear the label master calendar and has not provided advance notice that it is deemed to be such is a master calendar for purposes of section 170.6 merely because on the direction of the assistant supervising judge it assigns trial-ready cases to ready courts.”

He reasoned:

“It is unrealistic to expect all counsel, including those who may primarily practice in other counties, to be aware of the unwritten rules for assignment of cases in the central district as well as other locations where they practice and to determine whether a 1993 decision of the California Supreme Court has transformed the trial courtroom in which they are appearing into something that may be deemed a master calendar for purposes of section 170.6.”

Mallano appeared to suggest that a rule change might suffice to resolve the problem.

“[W]hile we are aware of no precedent for individual trial courts to act as surrogate master calendars, it may be that new rules or procedures can be fashioned that would require a section 170.6 challenge to be filed in the division that sends a trial ready case to a trial ready courtroom,” he wrote.

Wesley said creating a true master calendar court for misdemeanor cases might be difficult, especially in the smaller Hollywood and East Los Angeles courts.

“I don’t think it’s practical,” he commented, suggesting that a rule change which would provide notice to counsel that challenges to judges must be made when a case is assigned to that judge for trial is a more likely path for the court to follow.

Wesley also said the problem is “not a big deal,” asserting that challenges under Sec. 170.6 to the judges who hear misdemeanors in the Central District are infrequent.

Representatives of the Public Defender’s Office, which litigated Ruiz’s challenge to the current procedure, questioned whether a rule change would meet the appellate court’s concerns.

Deputy Public Defender Al Menaster, the acting of head of the office’s Appellate Branch, said at the time the appellate court issued its ruling that designating each direct-set court as a master calendar court would probably not suffice.

“It would have to really be a master calendar court,” Menaster said, not just a direct-set court deemed to be a master calendar court whenever it assigns a case elsewhere for trial.

Deputy Public Defender John Hamilton Scott, who handled Ruiz’s writ petition, agreed Friday, predicting that if the Superior Court takes that course further litigation of the issue is likely.


Copyright 2004, Metropolitan News Company