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Retes v. Superior Court

Citations: 122 Cal. App. 3d 799; 176 Cal. Rptr. 160; 1981 Cal. App. LEXIS 2126Docket: Civ. 51408

Court: California Court of Appeal; August 20, 1981; California; State Appellate Court

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A petition for mandate/prohibition was filed after the Santa Clara County Superior Court denied a motion to disqualify Judge Bruce F. Allen and subsequently granted summary judgment for the defendant, Southern Pacific Transportation Company, dismissing the case. The petitioner, a minor represented by a guardian, argued that the judge's refusal to disqualify himself violated the precedent set in Bouchard v. Insona, rendering any subsequent orders void. The facts reveal that the petitioner, an illegal alien, suffered severe injuries after attempting to board a moving train in 1978. After a motion for summary judgment was served on August 28, 1980, the hearing was postponed to October 21, 1980, where petitioner's counsel filed a disqualification motion upon realizing Judge Allen was assigned to the case. The judge denied the motion, claiming it was untimely, and proceeded with the hearing on the summary judgment.

The Court addressed a motion filed by Mr. Wallach regarding the disqualification of the judge and the assignment of the case to another judge. The Court noted that the motion was filed late and lacked necessary affidavits. Mr. Wallach attempted to clarify that an affidavit was filed with the Clerk, but the Court insisted on the lack of a signed affidavit and directed him to submit the documents as they were. Despite Mr. Wallach's insistence on discussing the motion for disqualification, the Court refused to entertain further arguments on that matter, stating that it would only listen to arguments regarding the defendant's motion for summary judgment. The Court ultimately denied the motion to disqualify the judge, granted the defendant’s motion to amend its answer, and granted the motion for summary judgment, concluding that there were no triable issues of material fact. Subsequently, the court issued a judgment of dismissal. Following this, Mr. Wallach filed for a writ of prohibition/mandate, which was denied by the court.

The Supreme Court has granted a hearing regarding a petition and transferred the matter to a lower court to issue an alternative writ of mandate/prohibition. The primary issue is whether the lower court exceeded its jurisdiction by denying a motion to disqualify a judge under section 170.6 of the Code of Civil Procedure. This section allows for the disqualification of a superior court judge perceived as prejudiced against a party, requiring that the judge be known at least 10 days before the trial or hearing for the motion to be made at least 5 days prior. 

The court references the case Bouchard v. Insona, which established that merely scheduling a matter in a specific law and motion department does not constitute knowing the judge with the required certainty to apply the 10-day/5-day rule. The Bouchard court emphasized that assignments to a department do not equate to assignments to a specific judge, as this only reflects a probability, not certainty. 

In this case, the question arises whether assigning a matter to a law and motion department along with the name of the judge meets the certainty requirement. The trial judge's declaration indicates that he may reassign cases for various reasons, resulting in only a probability of him presiding over a scheduled matter. During the period in question, records show that the judge presided only 43 out of 57 days in the law and motion department, further illustrating the uncertainty of his assignment.

Judge Anello's cases were assigned to Judge Allen as required, but it was noted that complex matters are frequently reassigned to other judges, though the frequency of this practice is disputed. The facts of the case align with the rule established in Bouchard, as merely adding the name of the law and motion judge does not meet the certainty required by section 170.6. The assignment does not fulfill the criteria of a known judge under the 10-day/5-day rule due to the existing policy of reassignment. While the efficiency of the court is a concern, the primary focus remains on ensuring the trial judge is clearly identified, as stipulated by section 170.6. 

Additionally, the court found that a party's right to challenge a judge under section 170.6 should not be hindered by a minor oversight, such as an unsigned declaration, especially when the attorney attempted to rectify the mistake in court. The trial judge has a duty to prevent cases from being dismissed due to inadvertent errors, as highlighted in People v. St. Andrew. Here, the judge acknowledged the defect but denied the correction, contradicting established legal principles. If a judge fails to disqualify himself in response to a valid motion under section 170.6, any subsequent orders or judgments are rendered null and void. Consequently, a peremptory writ of mandate will issue, directing the court to vacate its denial of the disqualification motion and to assign the matter to a different judge. The decision was concurred by Judges Taylor and Miller, with petitions for rehearing and Supreme Court review denied.