Metropolitan News-Enterprise


Friday, March 10, 2017


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Dependency Detention Hearing Not ‘Contested’ Under Code of Civil Procedure §170.6—C.A.


By a MetNews Staff Writer


A juvenile court detention hearing in a dependency case was not a “contested” proceeding within the meaning of Code of Civil Procedure §170.6, so the judge who presided over the hearing remained subject to disqualification under that section, the First District Court of Appeal ruled yesterday.

Div. One ordered San Francisco Superior Court Judge Susan M. Breall off the case, which involves a child identified as E.R. San Francisco’s Human Services Agency filed a dependency petition last month, and held an initial detention hearing on Feb. 8 over the objections of the father’s counsel, who said she needed time to locate witnesses.

The judge found, on the basis of the detention report, that notice had been given and that there had been a prima facie showing under Welfare and Institutions Code §300. The child was placed under the temporary care and custody of the agency, and placed with the mother.

The father’s lawyer papered Breall the next day, but Breall found the challenge untimely because she had “made substantive rulings on the detention.” Counsel argued that the challenge was timely, but Breall insisted she had made “temporary detention findings which are substantive findings.”

A contested jurisdiction hearing was set for Feb. 28, but the Court of Appeal stayed it after the father’s lawyer filed a writ petition, which the court granted yesterday.

The §170.6  challenge, the court said in a per curiam opinion, “was timely under any of the statute’s deadlines”—the 15-day “all purpose” assignment rule, the 10 day/5 day rule, or the master calendar rule—because there had been no “determination of contested fact issues related to the merits” under §170.6(a)(2).

Not every court ruling involves contested matters within the meaning of the statute, the panel explained, citing Barrett v. Superior Court (1999) 77 Cal.App.4th 1, which allowed a §170.6 challenge filed after the preliminary hearing in a criminal case. The court noted that the defense generally does not put on a case at such hearings, and that they generally do not involve actual litigation of affirmative defenses.

Similar rulings, the panel noted yesterday, have been reached with respect to an in-chambers hearing at which the juvenile court allowed the filing of a polygraph examination, and to delinquency arraignments at which counsel were appointed and future hearings scheduled.

In the case before it, the panel said, “the trial court’s findings…were akin to the probable cause finding made at a preliminary hearing holding a criminal defendant to answer.”

The case is Johnny W. v. Superior Court (E.R.), A150579.


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