Lewis v. Superior Court

[1103]

Opinion

THE COURT.

*

On September 2, 1987, counsel for petitioner, who is charged with felony offenses, filed a declaration seeking to disqualify Judge John H. Major on the ground of bias or prejudice against petitioner or his counsel. (Code Civ. Proc., §§ 170.1, 170.3, subd. (c)(1).)

1

On October 9, 1987, no action having been taken by Judge Major on the statement of disqualification, the parties appeared for a hearing on a pretrial motion filed by petitioner. At the outset of the proceedings Judge Major ordered the statement of disqualification stricken on the ground it disclosed no legal grounds for disqualification. (§ 170.4, subd. (b).) In the instant proceeding, petitioner contends Judge Major is deemed to have consented to his disqualification by failing to file an answer within 10 days after the filing of the statement, hence he may not further participate in the proceeding. For reasons that follow, we find petitioner’s contention meritorious and will direct that further proceedings be heard before a trial judge other than Judge Major.

Discussion

Subdivision (c) of section 170.3 provides in relevant part as follows: “(3) Within 10 days after the filing or service [of a statement of disqualification], whichever is later, the judge may file a consent to disqualification ... or ... a written verified answer admitting or denying any or all of the allegations contained in the party’s statement and setting forth any additional facts material or relevant to the question of disqualification. . . .

“(4)

A judge who fails to file a consent or answer within the time allowed shall be deemed to have consented to his or her disqualification

and the clerk shall notify the presiding judge or person authorized to appoint a replacement of the recusal. . . .

“(5) No judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party. In every such case, the question of disqualification shall be heard and determined by another judge. . . .” (Italics added.)