Carl v. Superior Court

Opinion

THE COURT.

*

It has apparently become common practice in the trial courts for litigants to file a “notice of unavailability” under the guise of

[75]

Tenderloin Housing Clinic, Inc.

v.

Sparks

(1992) 8 Cal.App.4th 299 [10 Cal.Rptr.2d 371] (Tenderloin). The notice purports to advise the other parties to the action—as well as the court—that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party. To the extent this practice attempts to put control of the court’s calendar in the hands of counsel—as opposed to the judiciary—it is an impermissible infringement of the court’s inherent powers.

[74]

*Sills, P. J., Aronson, J., and Bcola, J.

[75]

I

On April 4, 2007, petitioner Andrew F. Carl filed a statement of disqualification against the assigned trial judge. He then filed a notice of unavailability under

Tenderloin,

indicating he would be unavailable to respond to anything until May 11, 2007. Given a challenged judge must act on a statement of disqualification within 10 days of its filing or be deemed to have consented to the disqualification, on April 13, 2007, the court ordered the statement stricken because it disclosed no legal grounds for disqualification and was untimely. (Code Civ. Proc., § 170.4, subd. (b).) The court clerk served a copy of the order on the parties the same day. Petitioner filed the instant petition for writ of mandate on June 11, 2007.