L.A. County Metropolitan Transportation Auth. v. Superior Court

Filed 9/13/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LOS ANGELES COUNTY B311725 METROPOLITAN TRANSPORTATION AUTHORITY, (Los Angeles County Super. Ct. No. Petitioner, BH013505)

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Superior Court of Los Angeles County, Ronald S. Coen, Judge. Petition granted. Kendall Brill & Kelly, Robert E. Dugdale and Laura W. Brill, for Petitioner. Leah C. Gershon for Respondent.

In this writ proceeding instituted by the Los Angeles Metropolitan Transportation Authority (MTA), we principally consider whether a magistrate’s decision to authorize a search warrant constitutes a decision on a “contested fact issue[ ] relating to the merits” under Code of Civil Procedure section 170.6 (section 170.6). MTA’s petition arises from a special proceeding it filed on March 8, 2021, to quash a search warrant. The warrant was authorized by Judge Ronald Coen on February 26, 2021. Consistent with Penal Code section 1538.5, subdivision (a), the superior court assigned the motion to quash to Judge Coen for decision on March 18, 2021. On April 1, 2021, MTA filed a section 170.6 peremptory challenge against Judge Coen. Judge Coen concluded he had decided a contested issue on the merits when he issued the search warrant and struck the section 170.6 peremptory challenge as untimely. MTA then filed this petition for writ of mandate. We issued an order to show cause and stayed the hearing on the motion to quash. In a response to the petition and our order to show cause, counsel for the respondent court conceded a magistrate’s issuance of a search warrant is not a determination on a contested fact issue relating to the merits within the meaning of section 170.6 and MTA’s peremptory challenge was timely. As we will briefly explain, that is correct. “An application for search warrant . . . almost invariably is presented ex parte.” (People v. Mack (1977) 66 Cal.App.3d 839, 844.) In most cases, the party to be searched is unaware law enforcement is seeking a search warrant and learns of it only when the warrant is served. The party has no opportunity to