PETITION for writ of mandate from an order of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Petition granted. (Los Angeles County Super. Ct. No. BC375937)
The opinion of the court was delivered by: Kitching, J.
CERTIFIED FOR PUBLICATION
The issue before this court is whether a superior court local rule conflicts with Code of Civil Procedure section 170.6 (section 170.6). We conclude the local rule is void because it conflicts with the statute.
Section 170.6, subdivision (a)(2) states that when the Court of Appeal remands a case to the superior court and the trial judge in the prior proceeding is assigned to conduct a new trial on the matter, the party who filed the appeal may file a motion to disqualify the judge within 60 days of the date the party or the party's attorney "has been notified of the assignment." The local rule provides the time period for filing such a motion shall begin to run "from the date of issuance of the remittitur" by the Court of Appeal. We hold the time period to file a peremptory challenge pursuant to section 170.6, subdivision (a)(2) begins on the date of the notice of assignment and that the issuance of the remittitur does not provide notification.
Plaintiffs' complaint asserts assault and battery, intentional infliction of emotional distress and false imprisonment causes of action against defendants. The trial court sustained defendants' demurrer to the complaint on the grounds plaintiffs' various causes of action were barred by the statute of limitations. In so doing, the trial court assumed the complaint was filed on August 14, 2007, because the court's record showed the complaint had been filed on that date.
Plaintiffs filed a motion to correct the clerk's record. They argued that the complaint was actually filed by facsimile on June 11, 2007, and therefore the statute of limitations did not bar their causes of action. The trial court denied plaintiffs' motion to correct the clerk's record, as well as plaintiffs' motion for reconsideration, and then entered judgment in favor of defendants. Judge Michael L. Stern signed the judgment.
Plaintiffs appealed. They argued the trial court abused its discretion in denying their request to have the record corrected. On June 2010, in an unpublished opinion (Ghaffarpour v. Commerce Plaza Hotel (June 22, 2010, B211251)) (Ghaffarpour I), we reversed the judgment. We stated in the opinion: "The trial court is directed to vacate its orders denying plaintiffs' motion to amend the clerk's record and motion for reconsideration, and hold further proceedings consistent with . . . this court's directive for reconsideration of the motion to amend the clerk's record."
On August 26, 2010, we issued a remittitur. The trial court, however, did not schedule a hearing for further proceedings as directed by this court.
On June 3, 2011, plaintiffs' counsel Varand Vartanian contacted the clerk of the presiding judge of Los Angeles County Superior Court to inquire about the case status. The clerk advised Vartanian that the matter would be reassigned to Judge Stern. According to Vartanian, "[t]his was the plaintiffs' first and only 'notification' of assignment since the issuance of the remittitur."
On June 10, 2011, plaintiffs filed a motion to disqualify Judge Stern pursuant to section 170.6. The trial court denied the motion on June 22, 2011. In its minute order denying the motion, the trial court stated the motion was untimely in light of the Superior Court of Los Angeles County, Local Rules, former rule 7.5(f) (Former Local Rule 7.5(f)).
Plaintiffs filed a petition for writ of mandate challenging the trial court's order dated June 22, 2011. We notified the parties we were considering granting the petition for writ of mandate (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171; Lewis v. Superior Court (1999) 19 Cal.4th 1232), on the grounds that "[i]nsofar as [Former Local Rule 7.5(f)] provides the time for filing a motion under section 170.6 after remand 'shall begin to run from the date of the issuance of the remittitur by the court of appeal' it is [in] direct conflict with section 170.6." We later issued an order to show cause why the relief requested in the petition for writ of mandate should or should not be granted. Respondent Los Angeles County Superior Court filed an opposition to the issuance of a peremptory writ of mandate in the first instance. Defendants, as real parties in interest, did not file any papers.
1. The Superior Court's Authority to Enact ...