Key Decisions

April 2013 – A Challenge To A Judge Was Timely

(filed under: Key Decisions Archive | April 10, 2013)

A Challenge To A Judge Was Timely

Entente Design, Inc. v. Superior Court
(Cal. Ct. of App., 4th Dist.), filed March 12, 2013

Leigh A. Pfeiffer filed a corporate dissolution action against Entente Design, Inc.  The case was originally assigned to the Honorable John S. Meyer for all purposes.

On November 6, 2012, counsel attended an ex parte hearing.  At the hearing, Judge Meyer granted defense counsel’s request to continue the start of trial one day from November 13 to November 14.  Judge Meyer also orally advised counsel he would not be available on November 14, and would tell them at the trial call on November 9 which trial judge would be assigned the case.

On the morning of November 9, counsel appeared before Judge Meyer, who informed counsel the Honorable Luis R. Vargas was available to try the case on November 14.

Counsel immediately reported to the courtroom and briefly consulted with Judge Vargas.  Judge Vargas confirmed the bench trial and the November 14 trial date.  Within an hour after leaving the courtroom, defense counsel filed a challenge to Judge Vargas pursuant to Code of Civil Procedure section 170.6.

Judge Vargas denied the challenge as untimely.

The Court of Appeal concluded that the challenge was timely and issued a writ of mandate.

A Section 170.6 challenge is permitted any time before the commencement of a trial or hearing.  There are, however, three exceptions to the general rule:  “the all purpose assignment rule,” “the 10-day/5-day rule,” and “the master calendar rule.”

Under the “all-purpose assignment rule,” a Section 170.6 challenge to a judge must be filed within 10 days for criminal cases, or within 15 days for civil cases, after notice of the judge’s all-purpose assignment.

Under the “10-day/5-day rule,” a Section 170.6 challenge to a judge who has not been assigned for all purposes must be filed at least five days before the trial date if the judge’s identity is known more than 10 days before that date.

Under the “master calendar rule,” a Section 170.6 challenge must be filed no later than the time the case is assigned for trial.  This is because when the master calendar department assigns a case to a particular judge for trial, the master calendar judge must immediately know if there is a challenge so he or she can assign another case to the challenged judge.

If that rule applied, the defendants’ challenge was untimely because they made it approximately an hour after Judge Meyer assigned the case to Judge Vargas for trial.

Whether the “master calendar rule” applies depended on whether Judge Meyer was managing a true master calendar when he assigned this case to Judge Vargas.

The appellate court concluded that the case did not involve a true master calendar assignment because the case was not ready for immediate trial when Judge Meyer assigned it to Judge Vargas.  The trial was to commence no earlier than two court days after the assignment.