Friday, May 13, 2016

A Deadline Applicable to Unicorns

Jones v. Superior Court, No. C080359 (D3 April 8, 2016).

The deadline for filing Code of Civil Procedure § 170.6 declaration to strike the judge depends on the kind of case and the kind of court you are in. In an independent calendar court—where a single judge gets assigned for all purposes—in a criminal case you need to file a strike within ten days of the notice of the assignment. (It’s fifteen in a civil case, but otherwise the same, which is why this opinion is of interest.) There’s an exception, however, for when a court only has one authorized judge. In those courts, you need to file within thirty days of an initial appearance, notice or not.

But the one-judge rule doesn’t see much use anymore. Since the unification of the superior and muni courts over a decade ago, every county has, at minimum, two authorized judges. Nevada County, the county at issue here, has six. See Gov’t Code § 69590.7. But the branch of the Nevada County superior court to which the case is assigned only has one judge. The government thus contents that the one-judge rule applies and the defendant’s strike was too late.

But that’s not right. The one-judge rule applies only to courts where there is only one authorized judge. The Government Code provisions that authorize judges of the superior court do not break the assignments down on a branch by branch basis. That’s more of a matter of internal court organization. So the one-judge rule does not apply when a multi judge court has only a branch has a single judge. Instead the general “all purpose assignment” rule should have applied.

And under that rule, a criminal case party has ten days to strike from a notice of the assignment or first appearance. Moreover, the clock runs from actual notice of the assignment. Because a fluke prevented Defendant in this case from getting notice that the judge had been assigned for all purposes until well after his first appearance, the deadline to strike was extended to ten days after the notice was given. Which made defendant’s strike timely in this case.

Writ granted.

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