Wednesday, October 19, 2016

Wife Fails to Bounce Divorce Judge with § 170.6 Gambit

Rothstein v. Superior Court, No. B275603 (D2d5 Sept. 16, 2016).

During Husband and Wife’s divorce case, Wife filed a peremptory challenge against the family law judge under Code of Civil Procedure § 170.6. After the case was reassigned, Family Law Judge #2 entered a dissolution judgment, but retained jurisdiction to deal with property division, support, etc. While that was pending, wife’s company sued Husband to collect on a debt. Husband got the matter transferred to FLJ2 as a related matter. WifeCo. then filed its own § 170.6 to strike FLJ2. FLJ2 accepted the strike and transferred the whole case to Judge #3. After husband moved for reconsideration, which was denied, Husband took a writ.

The Court of Appeal holds that FLJ2 should only have transferred the later-filed collection case. Wife had already used a § 170.6 in the divorce case and the trial judge had already entered findings. While a § 170.6 challenge is mostly unreviewable, certain procedural matters going to the validity of the declaration can be addressed—the chief one being timeliness. Another one is whether a new case in which a strike is filed is merely a continuation of a prior case. Here, the collections case isn’t merely an extension of the family law case—the key issue had been resolved in neither case. Thus, Wife could permissibly bring a § 170.6 strike in that action.

What she couldn’t do, however, was to use a strike in the collection case to get the divorce case reassigned too. The cases weren’t consolidated—just transferred as related. A § 170.6 wasn’t permissible in the family law case because it had been pending for a year and the court had made findings. While Wife bemoans the lack of judicial economy in splitting up the cases, the Court here is unconcerned. To the extent the cases overlap, the divorce case is subject to a statutory priority, so a resolution of the property issues in that case is likely to moot the civil case in any event. Plus, any other rule would invite manipulation and forum shopping by filing and relating successive actions to evade the statutory limits in § 170.6.

Writ granted in part.

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