Neher v. Maloney CA3

Filed 12/21/23 Neher v. Maloney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

JEANINE NEHER, C095194

Plaintiff and Appellant, (Super. Ct. No. 19CV02518)

v.

MICHAEL MALONEY,

Defendant and Respondent.

Appellant Jeanine Neher sued respondent Michael Maloney for libel based on his post on social media regarding a statement she made in a class she taught at a community college. The trial court granted Maloney’s motion for judgment on the pleadings. Neher filed a motion to vacate the judgment, which the trial court denied. Neher contends the trial judge erred in denying the motion, because Neher filed a peremptory challenge to

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the judge under Code of Civil Procedure section 170.61 before he ruled on Maloney’s motion for judgment on the pleadings, thus divesting the judge of jurisdiction to rule on that motion. However, Neher received notice that the judge was assigned for all purposes in January 2021, and she did not file a peremptory challenge until May 2021. A peremptory challenge of a judge assigned for all purposes, as here, must be filed within 15 days of notice of the assignment. (§ 170.6, subd. (a)(2).) Therefore, Neher’s peremptory challenge was untimely. We will affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On August 21, 2019, Neher filed a complaint for libel (Civ. Code, § 45) against Maloney. Neher alleged that Maloney posted a statement on social media that she made in a class she taught at a community college. Neher alleged that Maloney quoted the statement out of context to falsely suggest that Neher indoctrinated students to be hostile to law enforcement. Neher alleged that as a result she suffered harm, including calls for her dismissal and an inquiry by the college. On February 19, 2020, the judge assigned to the case recused herself under section 170.1, because she knew defendant from when they were neighbors. On March 3, 2020, the case was reassigned to a different judge. On January 11, 2021, the clerk of the trial court sent notice to the parties that the case was assigned for all purposes to Judge Stephen E. Benson. On February 23, 2021, Neher filed a case management statement, attaching a declaration seeking a continuance of the case management conference. Neher’s declaration listed Judge Benson as the assigned judge. On February 24, 2021, Maloney filed a motion for judgment on the pleadings, setting a hearing before Judge Benson on March 24, 2021.