CYBERMEDIA, INC. v. Superior Court

California Court of Appeal Feb 10, 1999 No. B127321Published

Before: Mallano

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Holding. The court held that a peremptory challenge to a judge is timely if filed within 15 days of receiving actual notice of a change in the assigned judge, but such a challenge does not divest the judge of jurisdiction to rule on matters already heard prior to the filing of the challenge.

Issues

Whether a general notice of judicial assignment is sufficient to trigger the time limit for a peremptory challenge under Code of Civil Procedure section 170.6.
Whether a peremptory challenge filed after a hearing on demurrers and motions to strike divests the judge of jurisdiction to rule on those specific matters.

Disposition. remanded

Quotations verified verbatim against the opinion

“we determine that where, as here, a party has already appeared in the action, it must file its challenge within 15 days of receiving notice of a change in the individual calendar judge assigned to the case.”

“the issue before us is whether the general notice mailed by the superior court’s public information office was sufficient notice to petitioners so as to trigger the 15-day time period. We conclude that it was not.”

“with respect to the hearing on the demurrers and motion to strike, petitioners’ challenge was untimely since it should have been filed before the commencement of the hearing.”

Opinion

MALLANO, J.

Petitioners, Cybermedia, Inc., Unni S. Warrier and H. Mark Carlson, seek a writ of mandate directing the superior court to set aside an order denying their Code of Civil Procedure section 170.6

disqualification motion.

I. Facts and Procedural History

Real party in interest, Wendell Brown, filed this action on June 18, 1998. It was originally assigned for all purposes to Judge Valerie Baker, who was designated the individual calendar judge in department 31 of the superior court. On October 19, 1998, Judge Baker was replaced in department 31 by Judge Judith Meisels Ashmann. Sometime in October, the public information office of the superior court mailed to the law firm representing petitioners a general notice, including this change in judges, but with no indication of case names or full case numbers.

On October 20, 1998, petitioners filed demurrers to, and motions to strike, the operative complaint. On Friday, November 13, 1998, the attorney assigned to petitioners’ case appeared for the hearing on the demurrers and motions to strike, and for the first time learned that Judge Ashmann was now presiding in department 31. Judge Ashmann allowed counsel to argue the demurrers and motions, but deferred ruling until such time as she received additional briefing on certain specified issues.

The following Monday, November 16, 1998, petitioners filed a motion for peremptory challenge under section 170.6 to disqualify Judge Ashmann. On November 17, 1998, the court denied the motion as “not timely.”

On November 18, 1998, after receiving the court’s order, counsel for petitioners contacted his law firm’s court services clerk and asked whether the clerk had received notice of Judge Ashmann’s assignment. The clerk advised that he had received a general mailing from the superior court’s public information office sometime in late October 1998, which described a

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CYBERMEDIA, INC. v. Superior Court

AI Brief

MALLANO, J.

I. Facts and Procedural History

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II. Contention

III. Discussion

IV. Disposition

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