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Court of Appeal:
October Challenge to Judge Was Timely Though Parties Knew of Assignment to Her in June
Raphael Says Advisement by Commissioner That Judge Would Handle Trial Had Potential of Constituting All-Purpose Assignment
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has held that an “all-purpose” reassignment of a case to a judge, triggering a 15-day period within which a peremptory challenge to that judge may be filed, can be effected by an oral announcement at a court hearing by the bench officer who is presiding—but only if that bench officer ceases handling any substantial matters in the case.
Otherwise, the reassignment is not an “all purpose” one, Justice Michael J. Raphael said in an unpublished opinion issued on Thursday.
Raphael declared that a challenge to Riverside Superior Court Judge Susanne S. Cho, filed on Oct. 5, 2023 by the petitioner in a divorce case, Robert Taylor, was timely although Commissioner Mickie Reed advised counsel at a June 2023 hearing that Cho would preside over the trial in November. That advisement did not constitute an all-purpose assignment, he declared, because Reed held onto a “substantial” matter, conducting a hearing on it in August.
“Judge Cho would have been assigned to the case for all purposes in June so long as she processed all substantial matters from that moment on,” Raphael wrote.
Trial Assignment
He said that in June, there was merely an assignment for trial purposes, so that the clock did not start running on a 15-day period for filing a challenge after an all-purposes assignment is made. That time limit is set forth in Code of Civil Procedure §170.6.
On Oct. 4, 2023, Taylor, apparently not taking heed of Reed’s notification in June that Cho would preside over the trial, filed a paper indicating a lack of assent to a trial before a commissioner, and on the same day, the court issued a “Notice of Case Reassignment For All Purposes,” shifting the case to Cho. The following day, Taylor filed a challenge to Cho which the judge proceeded to spurn, proclaiming that the parties had known since June of the entrusting of the case to her. The appeals court directed the issuance of a writ of mandate requiring Cho to step aside. Raphael wrote:
“Applying the all purpose assignment rule here, Taylor’s motion was timely. He moved to disqualify Judge Cho one day after notice that the case had been reassigned to Judge Cho for all purposes. It was therefore “made to the assigned judge...within 15 days after notice of the all purpose assignment.”
Two Reasons
Explaining why an all-purpose assignment had not been made in June, he said there are “two reasons, one formal and one functional,” elaborating:
“The formal reason is the timing of the case reassignment notice. If the case had been reassigned to Judge Cho for all purposes in June, then the notice of reassignment would have been issued then, rather than the day Taylor sought ‘reassignment of the case to a Superior Court Judge for all matters.’ ”
Raphael continued:
“The functional reason is that a substantial matter remained before Commissioner Reed even after she set trial dates in Judge Cho’s department.”
He quoted the California Supreme Court as saying in a footnote in its 1993 decision in People v. Superior Court (Lavi) that the all-purpose assignment rule applies only where “a single judge must handle every matter in a given case.”
Question Left Open
The justice left open the question of whether there would have been an all-purpose assignment in June if a notice of assignment had been issued then even though Reed retained a matter, saying:
“The combination of the formal and functional reasons here means we need not decide whether one would be sufficient here without the other.”
The case is Taylor v. Superior Court, E082661.
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