Tuesday, October 17, 2017
C.A. Finds Judge Erred in Refusing to Exit Case
By a MetNews Staff Writer
The Fourth District Court of Appeal acted with dispatch in granting a petition for a writ of mandate yesterday that was filed Sept. 22, ordering that a San Diego Superior Court judge be yanked off a case in which he denied as untimely a peremptory challenge to him that the respondent filed the same day as his responsive pleading.
Justice Cynthia Aaron of Div. One wrote the opinion, which was not certified for publication. It directs that a paternity case brought by Kristin Dove against Nevan Forsythe be assigned to some judge other than David L. Berry.
Forsythe’s pleading and his peremptory challenge under Code of Civil Procedure §170.6 were both filed Sept. 18. Aaron found of no significance that Forsythe signed an acknowledgement of receipt of the petition, which noted the all-purpose assignment of the case to Berry, on June 28.
“The dispositive question in this proceeding is whether Forsythe’s peremptory challenge was timely,” Aaron said.
Under §170.6(a)(2), she pointed out, where civil case “has been assigned to a judge for all purposes,” and the assignment is made before a party has appeared, a challenge must be made “within 15 days after the appearance.”
“The record shows that Forsythe had notice of the assignment of the paternity action to Judge Berry for all purposes on June 28, 2017, but he had not yet appeared in the action. The record also shows that Forsythe did not appear until he filed his responsive declaration to Dove’s request for order regarding custody and visitation on September 18….The peremptory challenge filed on the same day as Forsythe first appeared in the action was obviously filed ‘within 15 days after the appearance’….Since the challenge was also in proper form, the family court was required to grant it.”
The writ was granted without oral argument and Aaron declared that it would be final in five days.
The case is Forsythe v. Superior Court, D072803.
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