Thursday, December 24, 2015
Judge Erred in Relying on What Previous Judge in Case Told Her—C.A.
Information From the Colleague and His Clerk Was Not Under Oath, Appeals Panel Notes
By a MetNews Staff Writer
A Los Angeles Superior Court judge erred in denying a peremptory challenge as untimely based on what she was told by another judge and his clerk as to something that had occurred in the case before it came to her courtroom, the Court of Appeal for this district has ruled.
Their statements to her were not under penalty of perjury, and were therefore not evidence, the unpublished opinion, filed Tuesday, declared.
It was Judge Elia Weinbach to whom the case—a products liability action against various entities involved in the making or selling of Nissan automobiles—was initially assigned. Once it was determined that it was a complex litigation case, it was shifted to Judge Elizabeth R. Feffer, who handles such matters.
The minute order in Weinbach’s courtroom, transferring the case to Feffer, was dated Aug. 21, 2015. It specified that the case was going to Feffer.
The plaintiff’s attorney filed a challenge to Feffer, pursuant to Code of Civil Procedure §170.6, on Sept. 22. Two days later, Feffer rejected the challenge as untimely based on §170.6(a)(2) which says that when a case is assigned to a judge for all purposes, a peremptory challenge by a party must come “within 15 days after notice of the all purpose assignment.”
“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….”
The Homampour Law Firm, representing the plaintiffs, filed an ex parte motion for reconsideration, which Feffer denied, without hearing argument, on Oct. 1. Eight days later, a petition for writ of mandate was filed in this district’s Court of Appeal, seeking Feffer’s ouster.
It was alleged that the tentative order posted on the court’s website had only blanks by the name of the judge to whom the case was being sent and by the department number, with two e-mails provided between counsel on which the order had purportedly been pasted, as plucked from the website. The actual tentative order is not available (and cannot be retrieved via the Internet’s “Wayback Machine”).
According to a declaration, The Homampour Law Firm did not learn of the assignment of the case to Feffer until one day before it filed the challenge, discovering the assignment upon receipt of the defendants’ case management statement. A notice of the case management conference, showing Feffer as the judge who would preside, was sent to the plaintiffs’ lawyers on Sept. 2 but purportedly was not received because the law firm had supplied the court with the wrong zip code for it.
Alternative Writ Issued
An alternative writ was issued by Div. Five. Feffer responded by holding a hearing on Nov. 25 at which she received testimony from a legal assistant for the Sherman Oaks firm representing the plaintiffs to the effect that he asked the clerk in Weinbach’s department, by telephone, to whom the case was being shifted, and she answered, simply, that a minute order would be issued.
She disclosed at the hearing that she had spoken with Weinbach, as well as his courtroom clerk, and related that the clerk has “no doubt in her mind” that she told the legal assistant where the case was headed. Feffer recited:
“[T]hat’s her standard practice. That’s what she does in every case.”
The minute order said:
“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.”
That wasn’t good enough, the appeals court said, in granting a writ of mandate directing Feffer to bow to the challenge.
In declarations, the Homampour Law Firm denied receipt of the minute order, or any awareness of what judge the case had been sent to, until Sept. 21 when Nissan’s case management statement was received. A Sept. 2 case management statement was not received, it was alleged, with the nondelivery attributed to the statement being addressed to the office at the wrong zip code—one provided by that office.
Justice Sandy R. Kriegler of Div. Five wrote:
“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.”
He went on to say:
“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 39.”
The legal assistant, he pointed out, testified that the courtroom clerk did not tell him where the case was being sent.
“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,” Kriegler said, adding that it was not “properly the subject of judicial notice.”
The case is Salinas v. Superior Court, B267430.
Corey C. Arzoumanian of the Homampour Law Firm, Stuart B. Esner of Esner, Chang & Boyer, and Reza Torkzadeh of the Torkzadeh Law Firm represented the plaintiffs/petitioners. There was no appearance for the Superior Court or Nissan.
Copyright 2015, Metropolitan News Company