Monday, December 12, 2016
Court of Appeal Grants Writ Ordering Judge Off a Case
By a MetNews Staff Writer
The Court of Appeal has yanked a case from a Contra Costa Superior Court judge who rejected a peremptory challenge filed 12 days after notice of assignment of the case to her was mailed to the plaintiff’s counsel.
The judge, Judith S. Craddick, viewed that challenge as a nullity, and found that an amended challenge, filed 18 days after the mailing, was untimely.
Under Code of Civil Procedure §170.6, a peremptory challenge must be brought within 15 days after notice of an all-purpose assignment, and the period is extended by five days, where notice is served by mail.
Notice of the assignment to Craddick was mailed last Aug. 1; the peremptory challenge was filed Aug. 12 (with the judge’s name inadvertently omitted), and an amended challenge was filed Aug. 18 (with the name included). Craddick denied the challenge on Aug. 19.
San Francisco attorney Jay T. Jambeck, a partner in Leigh Law Group, representing plaintiff D.R., a minor, filed a petition for a writ of mandate on Sept. 6. The Superior Court filed opposition on Sept. 20 after receiving notice that the Court of Appeal was inclined to grant the writ.
Craddick, a 78-year-old judge appointed in 1998, reasoned that Jambeck should have known of the assignment to her on July 25, the day the complaint in the underlying case was filed. (The action against West Contra Costa Unified School District alleges a series of sexual assaults on the plaintiff at his school.)
The complaint in the court’s file is stamped “Per local Rule 5 this case is assigned to Dept. 9,” the opposition pointed out. Department 9 is where Craddick sits.
However, a notice initially sent to Jambeck in July advised that the case was assigned to Judge Barry Goode in Department 17. The notice mailed on Aug. 1 said the case had been shifted to Department 9.
Writing for the First District Court of Appeal’s Div. Three, Presiding Justice William R. McGuiness, in an unpublished opinion filed Thursday, said that “[a]ccording to the superior court, because petitioner had notice of the assignment to Judge Craddick on July 25, 2016, he had until August 15, 2016 to file his challenge, and the amended challenge filed August 18, 2016, was therefore untimely.
(The opinion does not explain how the lower court determined that D.R. had 21 days within which to file a challenge, given the position that knowledge of the assignment was based on what was stamped in the clerk’s office, rather than what was mailed.)
Notice of Assignment
“We conclude that notice of the assignment to Judge Craddick was first effected by mail, on August 1, 2016, when the superior court informed petitioner that the case management conference was being moved from Department 17 to Department 9. There is nothing in the record indicating that the stamped complaint showing the initial assignment to Department 9 was served on petitioner. In his reply brief, petitioner denies he was ever given a copy, and in fact, the file endorsed copy of the complaint that appears to have been given to petitioner has a stamp on the first page that states: ‘Per Local Rule 5 this case is assigned to Dept 17.’
“Moreover, even assuming petitioner received a copy of the stamped complaint showing the assignment to Department 9, we note the superior court thereafter issued a notice to petitioner stating, “This matter has been assigned to Department 17, Judge B. Goode presiding, for all purposes....[¶]....All counsel are required to appear in Dept. 17 on 09/30/16 at 8:30 a.m.” Petitioner was therefore justified in relying on the explicit statement by the superior court that the matter was being assigned to Department 17, and had no reason to challenge Judge Craddick at that time.”
McGuiness remarked in a footnote:
“The superior court’s argument is based on the assumption that the peremptory challenge was not perfected until petitioner filed the amended challenge on August 18, 2016. The parties do not address whether the initial challenge filed August 12, 2016—which omitted Judge Craddick’s name—was valid. We need not—and therefore will not—address whether the initial challenge filed August 12, 2016 was valid.”
The opinion directs the Superior Court “to issue a new order granting the challenge and transferring the case immediately to another judge.”
The case is D.R. v. Superior Court, A149245.
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