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C.A. Invalidates Local Rule Conflicting With CCP §170.6
Motion Before Trial Was Timely as Master Calendar Rule Was Inapplicable
By Kimber Cooley, Staff Writer
Div. One of the Fourth District Court of Appeal yesterday ordered that a judgment be vacated based on a judge having spurned a challenge pursuant to Code of Civil Procedure §170.6 on the ground that it was untimely, holding that it was timely under that statute, though not under a local rule of the San Diego Superior Court which the panel declared to be invalid.
Sec. 170.6(a)(2) includes a “master calendar rule” which reads:
“If the judge, other than a judge assigned to the case for all purposes…is scheduled to try, the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date. If directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.”
Local Rule
San Diego County Local Rule 2.1.3 provides, in part:
“The assigned judge or another judge, acting in his or her capacity as a ‘judge supervising the master calendar’…will notify the parties of the name of the judge who has been assigned to try the case pursuant to the court’s master calendar. Accordingly, if any of the parties intend to challenge the judge assigned for trial pursuant to Code of Civil Procedure section 170.6…they must do so at the time they are notified of the assignment.”
San Diego Superior Court Judge Timothy B. Taylor denied a challenge to him based on that local rule. The case was routed to him by the judge who previously handled the case, not by the master calendar court.
Acting Presiding Justice Martin N. Buchanan authored the opinion which directs issuance of a peremptory writ of mandate ordering the granting of the peremptory challenge to Taylor and setting aside the judgment entered against the plaintiff following a jury trial. Justices Julia C. Kelety and David M. Rubin joined in the opinion.
Peremptory Challenge
Petitioning the court for a writ of mandate was plaintiff Leah Lorch, who sued Kia Motors America, Inc. in 2020 for various causes of action under the Song-Beverly Consumer Warranty Act, codified at Civil Code §1791 et seq. In October 2023, the case was assigned to San Diego Superior Court Judge Robert C. Longstreth for all purposes.
On Friday, Feb. 2, 2024, Longstreth advised that he was trying another case and that the parties should report back on Monday at 1:30 p.m. for trial assignment. Later that same day, Longstreth’s court clerk left a voicemail for Lorch’s counsel saying that the case had “been picked up by Judge Taylor” for purposes of trial and “feel free to give me a call…if any parties are going to challenge the judge.”
About an hour after the voicemail, Longstreth entered a minute order declaring “[a] master calendar assignment has been made as both sides have waived any challenge under 170.6.” Neither party was served with the minute order.
Lorch’s attorney, David Lunn of Strategic Legal Practices, submitted for filing a peremptory challenge under §170.6 on Saturday, mistakenly checking the “party” box instead of the “attorney” box and thereby signing it on behalf of Lorch rather than as her attorney.
Taylor issued an order denying the challenge on the grounds it was untimely and not in proper form, due to the inadvertent checking of the wrong box, and declined to issue a stay pending a writ petition. When Lorch asked to make a record, Taylor agreed and said “I need to hear from plaintiff’s counsel about why they dislike me so much.”
The two-day trial began later that day and the jury reached a verdict in favor of Kia on Feb. 8, 2024.
Master Calendar Rule
Buchanan noted that a party may generally challenge a judge under §170.6 at any time before trial begins, but noted that the “master calendar rule” provides an exception.
Buchanan noted that Longstreth did not cite the local rule when he issued the order declaring that a “master calendar assignment” had been made, but reasoned that “he necessarily relied on the rule to do so.”
The jurist turned to the 1993 California Supreme Court case of People v. Superior Court (Lavi) which concluded, in an opinion by then-Chief Justice Malcolm Lucas (now deceased), that a “court may not subject every case assignment to the master calendar rule of section 170.6 simply by labeling the assigning court a ‘master calendar department.’ ”
Finding that the rule ran afoul of the holding in Lavi, Buchanan wrote:
“Rule 2.1.3 permitted Judge Longstreth—and would permit any other judge—to act as a judge supervising the master calendar. Under our reading of Lavi, this runs afoul of section 170.6 and the policy underlying the master calendar rule. A local court rule may not alter the true meaning of the statute by effectively deputizing every judge of the court to act as a master calendar judge.”
Factually Inaccurate Order
Buchanan also took issue with the local rule allowing a judge to act in the capacity of a master calendar judge without advance notice to the parties and cited case law demanding prior notification.
In the present case, he remarked:
“The only indication we see from the record of a master calendar reassignment came after the purported reassignment had already occurred, when Judge Longstreth’s department issued a factually inaccurate minute order—which was not served on the parties—stating that a ‘master calendar assignment has been made as both sides have waived any challenge under 170.6. ’ ”
Under these circumstances, Buchanan declared, the procedure established by the rule is inconsistent with case, remarking:
“We encourage the superior court to revise the rule to bring it into compliance with the law.”
Timely Filed
Buchanan pointed out that “so long as the peremptory challenge is timely and in proper form,” disqualification is mandatory without proof that the judge is actually prejudiced.
Even ignoring the local rule, the jurist concluded that the master calendar rule “could not have been triggered by the court clerk’s voicemail as a matter of law” under §170.6. He looked to the 1997 Court of Appeal decision by the Fourth District’s Div. Two in Stevens v. Superior Court which concluded the master calendar rule does not apply to an assignment made via telephone by a court clerk. On the facts at hand, Buchanan wrote:
“The parties were not present before the court when the assignment was made. Instead, the court clerk called the parties to notify them of the assignment, and the clerk did not even speak directly with counsel but rather left a voicemail. There was no opportunity for Lorch to assert her preemptory challenge ‘immediately to the master calendar judge.’”
He explained that “this conclusion is sufficient to warrant the issuance of a writ of mandate” but decided to “address Lorch’s contention that rule 2.1.3 is invalid to prevent the issue from arising again.”
Equitable Defense
The justice rejected Kia’s equitable defense position, saying:
“We need not decide whether the equitable defense of laches is properly raised in opposition to a writ petition seeking relief from the denial of a section 170.6 challenge when the petition was filed within the statutory deadline. Even if it were, we would determine that it does not apply here.”
He continued:
“Realistically, it would not have been feasible for Lorch to get a writ prepared and filed and a stay entered before trial started, or even before it ended. Once Judge Taylor denied the challenge and refused to stay the trial, counsel for Lorch understandably devoted their full attention to the trial. We see nothing unreasonable about Lorch’s actions….”
Buchanan did not agree that any error on the form submitted by Lorch’s attorney justified denying the peremptory challenge. He commented in a footnote that “Lorch had the right to correct the box-checking error on her peremptory challenge form” and that a party’s “important right” under the section should not be defeated by a formality.
The case is Lorch v. Superior Court of San Diego County (Kia Motors America, Inc.), 2024 S.O.S. 1652.
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