Pretend Master Calendar Is Even Worse than Real Master Calendar

Lorch v. Superior Court, No. D083609 (D4d1 May 16, 2024)

This writ case concerns the timeliness of a challenge to the assignment of a trial judge under Code of Civil Procedure § 170.6. 

In the event there are any non-lawyers who read this blog—which I guess is possible*—§ 170.6 lets a party file a declaration, once in a case, that says “the judge is prejudiced against me.” And that has the effect, whether the claim is true or not, of automatically reassigning the case to a new judge. It is an important procedure in California state court litigation. But since it is the kind of thing that can be abused, it has pretty strict limitations about both how often and when it can be used.

The timing of a § 170.6 depends on the way the court assigns its judges.** Some courts (mostly courts in NorCal, including SF Superior) use a master calendar system. In that system, you are never assigned a judge until trial. There are various judges who do specific pre-trial stuff—discovery, law and motion, etc. But then when you are ready for trial you go to the “master calendar” department—typically Department 1—and there’s a messy cattle call as cases are sent out to trial departments for trials, usually to begin almost immediately. In a master calendar system, you need to paper the judge as soon as you get the assignment. Like, on the spot, to the master calendar judge, live in Department 1. In the master calendar setup, a delay of a few hours will doom your challenge.

Other courts—including most civil cases in SoCal***—use an independent calendar system, where you get assigned a judge to do your case from the very beginning. In an IC system, you have 15 days to strike the judge after being informed of the assignment. In that system, if you get a late transfer to a new judge for trial, so long as the transfer is at least 10 days before trial, you need to strike at least 5 days  before the trial date. 

But in all events, and under any system, you need to take your strike before the onset of trial.

This case comes out of San Diego Superior, which is mostly an IC court. But SD Superior has a weird local rule that gives individual departments the authority to transfer cases, and it says in doing so, they are acting in a master calendar capacity. Which is an odd hybrid that makes the § 170.6 timing issues very confusing.

So here, the parties are in front of Judge #1, who doesn’t have time to try their case. (Based on the parties, it appears to be a Lemon law case, but the opinion isn’t super clear on that point.) On a Friday morning, Judge #1 tells the parties that they need to come back for a trial call on Monday at 1:30, when he would tell them where they were being transferred to for trial. But later that day, the court clerk calls Plaintiff’s attorney and tells her they are going to be transferred for trial to Judge #2. An hour later, Judge #1 entered a minute order to that effect, but it wasn’t served**** on the parties. 

Over the weekend, Plaintiff’s counsel e-files a strike, but she mistakenly checks the box that the client, instead of the attorney, is filing the required affidavit. About an hour beforehand, the parties learn they need to appear before Judge #2, not Judge #1, at 1:30 on Monday. Just before the hearing, Judge #2 issues an order rejecting Plaintiff’s challenge as untimely and “not in proper form.” 

The parties appear at 1:30 and Plaintiff raises the strike. Judge #2 informs them about the checkbox error and that the challenge was also denied as untimely under the master calendar rule. On Monday night Plaintiff’s counsel files a corrected form. The parties come back Tuesday and the judge informs them that the corrected form is nonetheless untimely under the master calendar rule. He denies a stay for plaintiff to take writ.

Trial begins later that day. The court’s action was so surprising that nobody has a court reporter. The following day—apparently during trial—Judge #2 signed an order denying the corrected challenge as untimely. The jury rendered a defense verdict the next day, and Judge #2 entered judgment for the Defendant.

Plaintiff takes a writ within the ten-day window to challenge the denial of a judicial disqualification under § 170.3(d). The Court of Appeal issues an OSC.

The only real fight Defendant puts up is to the timing of the writ. Although it was timely under § 170.3(d), Defendant says waiting till after trial gives rise to laches. But the Court of Appeal doesn’t buy it. There’s no unreasonable delay. The idea that Plaintiff’s counsel was going to draft and file a writ petition in a day, on a completely unexpected issue, while trying a case to a jury, is not something to fairly expect of a litigant. So even if laches could apply to a filing within the ten-day window, it wouldn’t apply here. 

As to timing issue, the Court notes that, subject to the specific day-based limits in the code, the only time limit in § 170.6 requires the challenge to be filed before a trial or contested hearing begins. The only exception relevant here is the master calendar rule. But the master calendar rule is premised on the parties being live in court, in front of the master calendar judge, when the assignment is made. Under established precedent, see Stevens v. Superior Court, 52 Cal.App.4th 55, 57 (1997), an assignment delivered on a call from court staff is inadequate to give rise to the very time delimited rule applicable to master calendar assignments.

The Court also notes in a footnote that a party should be permitted to correct a technical error in a § 170.6 affidavit, such as the checkbox error made by counsel here.

So far as the local rule that effectively deems every reassignment in San Diego as a master calendar assignment, that runs headlong into Supreme Court precedent that says a “court may not subject every case assignment to the master calendar rule of section 170.6 simply by labeling the assigning court a ‘master calendar department.’” See People v. Superior Court, 4 Cal.4th 1164, 1171 (1993). If you are going to do master calendar, do master calendar. But a “local court rule may not alter the true meaning of the statute by effectively deputizing every judge of the court to act as a master calendar judge.” So the rule is invalid.

 And because the strike should have been permitted, everything Judge #2 did afterwards was null and void. So Plaintiff gets a new trial, in front of a new judge. 

Writ granted.

 *Google has basically bailed on blogging support. So I have no idea who reads this. At this point, I might be writing a public diary about civil procedure. Which, I must admit, is a pretty weird thing to do. Are you there Bernie Witkin? It's me, Mike!

**In typical California fashion, there’s no statutory scheme that actually lays out these options. They just appear to have developed over time in different courts locally, and then § 170.6 was amended to conform to the various options.

***Some courts have master calendar for certain kinds of cases only. For instance, for the past several years, non-complex personal injury cases have used a master calendar system in LA Superior. 

****The fact that there isn’t any uniform system where superior courts serve the parties with orders electronically, is, in all candor, a f*cking disgrace. I don’t think there is anywhere else in the world where courts don’t serve orders by some electronic means. But in California, while some departments manage to do it sort of ad hoc, others stick to the slowest mail in the universe. (I get birthday cards from my mom in Pennsylvania in two days, so I am completely baffled how an order sent by first class mail takes two weeks to travel the five blocks from Stanley Mosk to my office. But that happens all the time.) And some courts—looking at you Alameda!—don’t bother to serve orders at all.

JCCP Rule Trumps Trial Preference Statute

Isaak v. Superior Court, No. A163675 (D1d1 Jan. 11, 2022)

This case deals with a trial preference motion brought by an elderly plaintiff in a coordinated proceeding under the Judicial Council Coordination Proceedings rules. There was no question that the plaintiff satisfied the requirements to get a trial preference under Code of Civil Procedure § 36, which requires that the plaintiff be more than 70 years old, that he or she have a substantial interest in the action, and that his or her health be such that an expedited trial is needed to prevent prejudice to the party’s interests. If those criteria are met, the movant is generally entitled to trial within 120 days. The question here, however, is whether the statutory regime governing complex, consolidated proceedings—§§ 404–404.9—and the related Rules of Court override § 36.

California civil procedure is unusual, in that the our Legislature maintains supremacy over it—we have no state equivalent of the Rules Enabling Act that lets the judiciary make procedural rules that have the full force of statutes. Generally, the Rules of Court can only fill interstitial gaps that are not addressed in the Code.

But the Legislature is still free to cede that power over specific issues. And it did so when it enacted the statutes that govern JCCP proceedings. Section 404.7 specifically authorizes the Judicial Council to enact rules to govern JCCP proceedings “notwithstanding any other provision of law[.]” As the Court explains, that permits the Rules of Court to supersede statuary procedures in the specific context of JCCP proceedings.

The relevant Rules of Court say that ordinary civil procedure rule should apply, but “if the prescribed manner of proceeding cannot, with reasonable diligence, be followed in a particular coordination proceeding, the assigned judge may prescribe any suitable manner of proceeding that appears most consistent with those statutes and rules.” R. Ct. 3.504(c). That means that the trial court has discretion to act contrary to ordinary civil procedure rules, provided the trial court’s rulings are conducive to the efficient management of a JCCP case and generally “consistent” with the spirit of the underlying rules.

So here, given § 404.7’s “notwithstanding” language, the trial court had the discretion to set trial inconsistent with § 36, “notwithstanding” the mandatory language in the statute. Because the trial court’s action was not inconsistent with Rule 3.504, it did not err when it denied the preference motion.

Writ denied.

Quashing Service in Unlawful Detainer

Stancil v. Superior Court, No. S253783 (Cal. May 3, 2021)

Unlawful detainers—eviction proceedings—are among the most common civil litigations in California state courts. More than 150,000 of them get filed in any given year. 

UD procedure is, however, a wreck. It is super-expedited—a response to a complaint needs to be served within five days. Summary judgment motions can be heard on five days notice. Trial can be set in twenty days.

At the same time, it is also very complicated. The substance and procedure are governed by numerous vaguely worded statutes, strewn across multiple codes in seemingly random fashion. There are overlapping layers of law at the city, county, state, and sometimes even the federal level. Many of the defenses are extremely technical. And, despite the enormous volume of filings, there is very little case law on anything. 

And then on top of all that, many of the litigants are pro se, and even the represented ones often aren’t paying their lawyers for hours of work to figure it all out.

This case, however, made it to the Supreme Court. The question presented is whether and how the tenant can use a motion to quash to challenge a UD complaint. It’s an interesting one.

In ordinary civil procedure, a motion to quash is used to challenge a defect in service or the lack of personal jurisdiction. The relevant statute, Code of Civil Procedure § 418.10, also addresses forum nonconveniens. It permits a defendant to make a special appearance to challenge service. No responsive pleading is required unless and until the motion is denied. The time to respond is further tolled if the defendant takes writ petition—specifically authorized by § 418.10(c)—until ten days after it is denied.

This has an unusual significance in UD cases because it potentially creates a avenue the tenant to really slow things down. Instead of five days to respond, the tenant gets the time spent to brief and argue the motion, ten days to take a writ, whatever time it takes to get decided, and then, if denied, ten days after the denial to answer.   

That creates a lot of incentive for the tenant to move to quash. Even when personal jurisdiction, as such, is not really at issue. Which is what happened here. Plaintiff—who appears to be the renter of a boat slip at a Marina of the S.F. Bay—argued in his motion that the wrong public entity was the name plaintiff. The trial court denied his motion, and then the appellate division and the Court of Appeal denied his writs. But the Supreme Court granted review, due to a longstanding perceived split of authority between Delta Imports, Inc v. Municipal Court, 146 Cal. App. 3d 1033, 1036 (1983) and Borsuk v. Superior Court, 242 Cal. App. 4th 607, 610 (2015).

The Court, in a unanimous opinion by Justice Cuellar, takes an interesting tack. Plaintiff loses, but the rule the Court lays winds up being relatively favorable to tenants. As the Court explains, a motion to quash under § 418.10 can only raise issues with personal jurisdiction or service. Tenant’s effort here—which entails a challenge to the truth of some of the facts alleged in the complaint—is not that. So a motion to quash is not an appropriate vehicle in his case.

But while that was enough to end the case, it doesn’t end the analysis. As the Court explains, UD is a creature of statute, with a bunch of special procedures. One of them is the right to serve a summons that requires a response within five days. In order to serve that kind of summons, however, the case needs to be a legit UD case. Were you to serve a five-day summons in an ordinary tort case, that service would be defective, it would be inadequate for the court to take jurisdiction over the defendant, and thus it could be subject to a motion to quash.

So, reasons the Court, a condition of serving a five-day notice in a legit UD case is pleading a legit UD case. A complaint that doesn’t state facts, if assumed true, that make out all the elements of an actionable UD claim is thus amenable to attack by a motion to quash.*

The upshot of all this is that although the tenant can’t use a motion to quash in a UD case to accomplish what he could with a summary judgment motion, he can use the motion to serve the same essential function of a general demurrer. And because the landlord’s strict compliance with the statutory procedures are elements of a UD claim, that means many of the kind of technical defects that trip up landlords and their counsel are amenable to resolution on on a motion to quash, even if they don’t raise what one would ordinary consider to be defects in service or personal jurisdiction.

Writ denied.

*This case shows the value of a well placed amicus brief. The link between stating a claim and jurisdiction thorough a five-day notice that the Court drew is not all that apparent from the tenant’s brief—it comes directly out of an amicus brief filed by the Western Center on Law & Poverty.

That’s What Writs Are For

Marez v. Lyft, Inc., No. A156761 (D1d1 Apr. 30, 2020)

Most of this opinion concerns whether Lyft can be held liable under respondeat superior when one of its driver was driving a car that he obtained in a rental facilitated by Lyft but who was driving for a personal purpose at the time of the accident. The court holds it cannot and affirms a summary judgment for Lyft on that ground. Ok.

But the plaintiff also complains that the trial court erred in limiting some of the issues he could inquire into during a PMQ depo of Lyft. The thing is, however, when you complain about a discovery ruling after a final judgment (as opposed to immediately taking a writ) you need to show that, but for the ruling, there’s a reasonable probably the case would have come out different. Here, the excluded testimony had absolutely nothing to do with the respondeat superior issue that ended plaintiff’s case. So right or wrong, the discovery ruling can’t be reversible error.

Affirmed.

Subpoenaing Third Parties for Docs to Use in a Judgment Debtor Exam

Shrewsbury Mgm’t v. Superior Court, No. H043166 (D6 Mar. 11, 2019)

This case, which concerns judgment debtor discovery, is basically the same as the 2017 decision in Yolanda’s, except that it applies to documents instead of testimony. 

Doctor’s Doctor’s Doctor Doctors Doctor’s Doctor’s Doctored Doctor’s Doctor.

Padda v. Superior Court, No. E070522 (D4d2 Jul. 6, 2018)
 
This short opinion granting a writ requiring a trial continuance is a little hard to follow. Mostly because everyone’s a doctor. It’s an employment dispute between two doctors and their former practice, which was run by some other doctors. It involves the parties’ gastroenterology experts (doctors) one of whom fell ill right between trial, and whose own doctor advised that he sit it out awhile.

Two weeks before trial, and before he was deposed, Plaintiffs’ gastroenterology expert was diagnosed with a hemorrhagic cyst in his kidney. The expert’s doctors advised him to take it easy, including not testifying at trial. Plaintiffs moved for a continuance under Code of Civil Procedure § 595.4, which permits a continuance when a material witness isn’t available. The moving party needs to file a declaration summarizing the testimony, and the opposing party has a chance to stipulate to admit it, which precludes a continuance. The non-moving party here wouldn’t stipulate, so the statute was satisfied.

So the Court of Appeal holds that the trial court abused its discretion in not allowing the continuance. The court’s alternative solution—to immediately start trial but then delay it while the doctor could find a doctor whose doctor was ok with the doctor being the doctor’s doctor—didn’t make much sense. Indeed, even though the nonmoving party didn’t want the continuance, it didn’t support that plan.

Writ granted.

Who You Givin’ Only One Star?

Yelp Inc. v. Superior Court, No. G054358 (D4d3 Nov. 13, 2017)

Discovery of anonymous poster information from Internet companies has been a hot topic in Court of Appeal lately. In the past year or so, there’s been a case about Google, and a pair of cases involving Glassdoor. This time it’s Yelp.

Following the first Glassdoor case—the court finds that Yelp had standing to raise its customer’s interest in remaining anonymous, because Yelp’s ability to maintain its reviewers anonymity is part and parcel of its very business. But then following the test from the second Glassdoor case, the court finds that the plaintiff has nonetheless made a sufficient prima facie showing of defamation to get at the information. So the court affirms the trial court’s order to produce the info. It reverses, however, on discovery sanctions. Given that the Glassdoor cases were decided after the trial court’s order, the issues presented in the dispute were novel enough that Yelp’s arguments in resisting the discovery were substantially justified.

Writ denied, sanctions order reversed.

Oregon's Government Tort Claim Process Applies in California State Court

Oregon State Univ. v. Superior Court, No. D071752 (D4d1 Sept. 28, 2017)

Plaintiff was injured in California through the alleged negligence of Oregon State University. He sued here, in state court. But he never filed a government code claim with OSU within the time allotted under Oregon state law. Question is, does that doom his suit, as it would were the defendant a California state government entity?

The court here holds that it does, as a matter of full faith and credit. California courts have a constitutional obligation to respect the sovereignty of other states and to apply their laws faithfully. There are exceptions to that rule, like when two states have public policies that are at odds. But since the Oregon code claim process is not significantly different from that in California, there was no reason for the trial Court to decline to apply it here. 

Writ granted.

Someone Else's Decision

Aanderud v. Superior Court, No. F073277 (D5 Jul. 27, 2017).

Trial court here granted a motion to compel arbitration where the agreement contained a class action waiver. In the process of doing so, the court found that that agreement was not unconscionable, the class action waiver valid, and the claims arbitrable. 

Problem is, the agreement contained a clause that specifically and expressly delegated all questions of validity or arbitrability to the arbitrator. Those are generally enforceable. So the trial court shouldn’t have predetermined those issues is granting the motion to compel. And while a granted motion to compel arbitration isn’t generally an appealable order, the court exercises its discretion to treat the appeal as a writ petition and issues a writ directing the trial court to vacate its order.

Writ granted.

The Firm's Work Product

Tucker Ellis LLS v. Superior Court, No. A48956 (D1d3 Jun. 21, 2017)

Who owns work product? An attorney, or the firm that employs him?

No Writs for the Vexatious

Ogunsalu v. Superior Court, No. D071323 (D4d1 Jun. 7, 2017)
 
A school teacher who has also been previously declared to be a vexatious litigant is a party to an ALJ case over a credentialing suspension. When the ALJ denied a continuance, Teacher petitioned for a writ of mandate from the superior court. The trial court imposed the prefiling requirements for vexatious litigants and refused to permit Teacher to file his writ. Teacher took his writ to the Court of Appeal, which also denied based on a lack of merit to get through pre-filing review. Teacher then sought review of that, and the Supreme Court granted and transferred the case back for reconsideration in light of its recent decision in the John case, which held that the pre-filing review requirements d
don’t apply to appeals were a vexatious pro per was appealing as a losing defendant.

The court notes the case is generally moot, because the ALJ proceeding is already over. But it reaches the merits anyway. The court finds John to be distinguishable. Although Teacher is a defendant in the ALJ proceeding, he is essentially a plaintiff in the writ case he filed in superior court. According to the Court, a writ like Teacher’s isn’t an “appeal” akin to John because an administrative ALJ hearing is not “litigation” as defined under Code of Civil Procedure § 391. Which means the writ petition is not an appeal but a new litigation initiated by Teacher, which makes Teacher effectively a plaintiff to whom the vexatious litigant pre-filing rules apply.

Affirmed.

Call it a Lara Notice

People v. Superior Court (Lara), No. E067296 (D4d2 on rehearing, Mar. 13, 2017)

This is a  criminal writ dealing with a change in the law of whether juveniles can be tried as adults, which has apparently caused some disarray in the trial courts. I don’t cover juvenile justice. But on rehearing, there’s an interesting question of writ procedure that was raised on rehearing, because there a bunch of similar writs pending. When does a denied writ become law of the case?

Writ review in the Court of Appeal is basically a two-step process. First, the court has to decide whether to take up the writ. The vast majority of the time it doesn’t do that and the petitioner gets a summary denial without an opinion. It’s well-established California law that a summary denial isn’t a “cause” as that term is used in the state constitution. Which means that it requires no written opinion and (collaterally) has neither preclusive effect nor creates law of the case.

To take up the merits writ, it can do one of three things: Normally it will issue an order to show cause or an alternative writ. These orders start a formal briefing process, which leads to a decision on the merits. Whether a grant or denial, that decision does constitute a “cause”—it requires a written opinion and creates law of the case.

In narrow circumstances, the court can forego the full briefing process and issue what’s called a Palma notice. See Palma v. U.S. Indus. Fasteners, Inc., 36 Cal. 3d 171 (1984). A Palma notice generally informs the parties that the Court of Appeal thinks the petition presents an issue (often a principally legal one) where the court is inclined to grant on a peremptory basis. To satisfy the respondent’s due process rights, the respondent is permitted to file an informal response, and if that doesn’t convince the court the writ issues. Like a writ issued after the more formal OSC/alternative writ process, a peremptory writ issued after a Palma notice is also a “cause.” It requires a written opinion that creates law of the case.  

This case, however, has an unusual fact pattern. The juvenile charging issue was piling up in multiple writs and the failure to quickly resolve it leading to some disarray in the trial courts. So here, the court took the unusual step of issuing a Palma notice that said it was included to take up the writ and deny it on the merits. Which it did. 

And now on a sua sponte motion for rehearing, the Court explains that a writ denied on the merits after a Palma notice is also a cause that creates law of the case. That might seem obvious, but there are some older cases that suggest there’s no cause until an alternative writ issues. These cases, however, are inconsistent with Palma’s concept of a peremptory writ that counts as a cause. There’s also some general language in other cases that suggests peremptory denial on the merits procedure employed by the court is not even an option in California writ practice. But none of these cases are on all fours.

At the end of the day, the distinction between a summary denial and a merits denial after a Palma notice comes down to an issue of jurisdiction. A summary denial is a declination to exercise jurisdiction over the merits of the matter. That’s not what we have here, since the court took jurisdiction and issued an opinion on the merits. So the court’s merits opinion does, in fact, constitute law of the case.

Writ denied.

A Writ Lesson, of Sorts

Agric. Relations Bd. v. Superior Court, No. C08373 (D3 Oct. 25, 2016)

This is a writ taken from an administrative proceeding addressed to a question of governmental attorney client privilege. But before we get there, there’s a question of writ procedure.

Can't Take a Writ from a Writ When You Can Take the Other Kind of Writ

City of Carlsbad v. Scholtz, No. D070253 (D4d1 July 8, 2016)

The underlying case here is a civil service proceeding before an ALJ. The municipality took an ordinary (non-administrative) writ to the superior court on some evidentiary issues, which was denied because the court determined that the city had an adequate remedy in administrative mandamus at the end of the case. The city then took an appeal. Question is whether in administrative proceeding, a denial of an interlocutory writ by the superior court is a final appealable judgment. It isn’t. 

Given that the superior court didn’t actually reach the merits of the issue on the writ and that the writ itself was interlocutory, the appeal shouldn’t be treated as an a appeal of a final judgment even though there weren’t any additional issues before the superior court. Nor would the appeal be accepted as a writ to the court of appeal. As the trial court previously determined, the presence of an adequate remedy in administrative mandamus meant that writ relief was unnecessary.

Appeal dismissed.