Sambrano v. Superior Court

California Court of Appeal Mar 30, 1973 No. Civ. 41602Published

Before: Thompson

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Holding. The court held that a motion to disqualify a trial judge under Code of Civil Procedure section 170.6 was timely filed because the case was not assigned via a master calendar and the motion was filed at least five days before the trial date. Local court memoranda attempting to impose earlier deadlines for such motions are ineffective to the extent they conflict with the statutory requirements.

Issues

Whether a motion to disqualify a judge under Code of Civil Procedure section 170.6 was timely filed in a non-master calendar criminal case.
Whether local court memoranda can override the statutory time limits for filing a motion to disqualify a judge.

Disposition. remanded

Quotations verified verbatim against the opinion

“We conclude that petitioner’s declaration, pursuant to Code of Civil Procedure section 170.6, was timely and accordingly issue a peremptory writ of mandate directing the trial court to honor the motion.”

“Those memoranda, however, cannot validly change the requirements of a statute or limit the rights granted by it. To the extent that the memoranda purport to do so, they are ineffective.”

Opinion

THOMPSON, J.

This is a petition for a peremptory writ of mandate to require the trial court to grant petitioner’s motion to disqualify a trial judge pursuant to Code of Civil Procedure section 170.6. We order that the writ be issued.

On July 5, 1972, the supervising judge of the Northeast District of the Los Angeles Superior Court issued two memoranda directing the manner of calendaring criminal matters in the district. One memorandum to the presiding judge of the municipal court states in pertinent part: “Beginning July 10, 1972, all defendants bound over to Northeast District Superior Court will be assigned directly to their trial courts rather than to a Master Calendar Court. This assignment will be made by the Municipal Court Judge or Commissioner before whom the defendant has had a preliminary hearing or has made a certified plea of guilty. [Par.] The Municipal Court will receive the department and date of Superior Court arraignment by calling the Arraignment Clerk in the office of the Superior Court Criminal Courts Coordinator . . . however, the final responsibility, authority and supervision for the calendar management shall remain with the Supervising Judge, Northeast District . . . [Par.] All motions of prejudice under C.C.P. 170.6 shall be made im

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mediately in the Superior Court department to which the case is assigned at the time of arraignment.” The second memorandum directed to all judges hearing criminal cases in the northeast district of the superior court parallels the first, adding that all cases except complex matters involving trial estimates in excess of 10 days will be assigned in “strict rotation.”

On November 14, 1972, petitioner appeared at a preliminary hearing before a judge pro tempore of the municipal court sitting as a magistrate. Charged with violations of Health and Safety Code sections 11530 and 11531, he was committed for trial in the superior court. Pursuant to the memoranda of July 5, petitioner was ordered to appear for arraignment in department F of the northeast branch on November 28. Petitioner appeared for arraignment as ordered and was arraigned with trial set for January 26, 1973. On January 18, petitioner filed a declaration to disqualify the judge sitting in department F, satisfying the requirements of Code of Civil Procedure section 170.6. The sitting judge, following the dictates of the memorandum of July 5, treated the declaration as untimely and disallowed it for that reason.

Sambrano v. Superior Court

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THOMPSON, J.

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