Friday, February 8, 2019
Page 1
Court of Appeal:
Time for Challenging Judge Triggered by Opposing Transfer
15-Day Period Commenced, Opinion Says, When Defendants in San Bernardino Action Contested Proposed Shift to San Diego County, Not When San Diego Judge Granted Transfer Motion
By a MetNews Staff Writer
The Fourth District Court of Appeal held yesterday that the 15-day time limit on a peremptory challenge to a judge in San Diego County was triggered when defendants in a San Bernardino Superior Court action filed opposition to a transfer of proceedings to that county.
Justice Judith L. Haller of Div. One wrote the opinion which denies a petition for a writ of mandate.
Sunrise Financial, LLC and other companies on Feb. 16, 2018, filed opposition to a transfer of a real property/fraud case, in which they were defendants, from San Bernardino County to San Diego County, to be consolidated with proceedings there. The motion by the plaintiffs for the transfer and consolidation, pursuant to Code of Civil Procedure §403, was granted on March 2 by San Diego Superior Court Judge Joel Wohlfeil.
Wohfeil had been assigned as coordination judge by the presiding judge of the San Diego Superior Court, under authorization by California Chief Justice Tani Cantil-Sakauye, as chair of the Judicial Council.
‘Not Timely’
The §170.6 challenge was served on March 8, 2018, and was denied by Wohlfeil on March 16 as “Not Timely.”
He acted pursuant to Code of Civil Procedure §170.6(a)(2) which provides that a challenge to a judge who is assigned for all purposes must be made within 15 days of the notice of that assignment “or if the party has not yet appeared in the action, then within 15 days after the appearance.”
Sunset and its two co-defendants who sought the disqualification—denominated by Haller the “Sunrise defendants”—argued that, having been sued in San Bernardino Superior Court, they were not “parties” to the action in San Diego until March 2 when Wohlfeil ordered consolidation.
Effect of Filing
Rejecting that contention, Haller said of the Sunrise defendants:
“Although they were not yet parties in the San Diego action, they were existing parties in [the] San Bernardino action to which the motion to consolidate and transfer was directed and they filed papers in the San Diego action requesting that Judge Wohlfeil exercise his discretion to deny the motion.
“By filing a petition acknowledging Judge Wohlfeil’s jurisdictional authority over their case and his authority to transfer and consolidate the case with the San Diego action, and by recognizing that Judge Wohlfeil had been assigned as the independent calendar judge, the Sunrise defendants ‘appeared in the action’ on February 16, 2018, within the meaning of section 170.6, subdivision (a)(2), triggering the 15-day judge-for-all-purposes rule.”
Legislative Intent Effected
She commented:
“In reaching this conclusion, we are aware that section 170.6’s time deadlines were not written with section 403 transfer motions in mind, and there are several plausible ways to interpret section 170.6 in this context. But we are satisfied our conclusion best effectuates the legislative intent when viewing the specific words of the statute and the statutory purpose and objectives.”
The case is Sunrise Financial, LLC v. Superior Court, 2019 S.O.S. 699.
Kevin J. Leichter and Andrew E. Hewitt of The Leichter Firm in Los Angeles were counsel for the Sunrise defendants. Alan “Kipp” Williams and John F. Whittemore of Blanchard, Krasner & French in La Jolla represented the plaintiffs, Overland Direct, Inc., and CTPC, LLC.
Copyright 2019, Metropolitan News Company