Swenson v. Superior Court

Opinion

BOREN, J.

In this original proceeding, petitioners claim that the five-day extension of time provided by Code of Civil Procedure section 1013, subdivision (a), applies to notice by mail of a master calendar assignment of an all-purpose judge. Petitioners, the plaintiffs below in a case subject to the Los Angeles Superior Court’s Trial Court Delay Reduction Act rules, received such notice by mail and 12 days later asserted a peremptory challenge (Code Civ. Proc., § 170.6) to the assigned judge. The challenge was rejected as untimely, raising the issue before us in this proceeding: whether section 1013, subdivision (a),

1

extends by five days the time within which a peremptory challenge must be filed under the local rules. We hold that it does not.

Under the local rules promulgated by the Los Angeles Superior Court to implement the Trial Court Delay Reduction Act (Local Rules), “[a] motion

[350]

asserting a challenge to an I/C [Individual Calendar or all-purpose] Judge under Code of Civil Procedure section 170.6 must be made within 10 days after notice of the assignment of a case to such I/C Judge . . . .” (Local Rule 1104.1.) After receiving in the mail a “Notice of Status Conference” informing him of the name of the assigned judge, petitioners’ counsel asserted a peremptory challenge to the judge. Because it was filed on February 22, 1988, 13 days after the notice of status conference was mailed, the challenge was rejected as untimely.

Under the local rules, the plaintiff in an “existing case” (i.e., one filed prior to the implementation of the Trial Court Delay Reduction Act) is informed of the I/C judge assigned to the case in a “Notice of Status Conference” mailed by the Los Angeles County Clerk. The notice is sent only to the plaintiff, who must then serve a copy of the notice, “within 5 days of receipt,” on all other parties to the action. In this case, the notice advising petitioners of the judge assigned to their case was mailed to petitioners’ counsel on February 9, 1988, and received by counsel the next day. Prominently displayed on the notice was a statement that the Trial Court Delay Reduction Rules (Local Rules 1100 et seq.) were “fully applicable” to the case. Petitioners’ counsel was aware of the 10-day period provided for in Local Rule 1104.1, but assumed that the period was extended 5 days under section 1013, subdivision (a).