(San Diego County Super. Ct. No. 37-2011-00100624- CU-CO-CTL)
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
PROCEEDINGS in mandate after the denial of a challenge to a trial judge under Code of Civil Procedure section 170.6. Luis R. Vargas, Judge. Petition granted.
In this petition, we must decide whether, for purposes of determining the timeliness of a challenge to a trial judge under Code of Civil Procedure*fn1 section 170.6 (section 170.6 challenge), an independent calendar court functioned as a master calendar court when the independent calendar court assigned a case to another courtroom. We conclude under the circumstances presented that the independent calendar court did not function as master calendar court. Therefore, the section 170.6 challenge at issue in this case was timely and the superior court should have granted it.
This petition arises from a corporate dissolution action filed by minority shareholder Leigh A. Pfeiffer (plaintiff) against Entente Design, Inc., and majority shareholders John and Carrie Arbuckle (defendants). The case was originally assigned to the Honorable John S. Meyer for all purposes.
On November 6, 2012, counsel attended an ex parte hearing. At the hearing, Judge Meyer granted defense counsel's request to continue the start of trial one day from November 13 to November 14. Judge Meyer also orally advised counsel he would not be available on November 14 and would tell them at trial call on November 9, which trial judge would be assigned the case.
On the morning of November 9, counsel appeared before Judge Meyer and defense counsel agreed to a bench trial. Judge Meyer informed counsel the Honorable Luis R. Vargas was available to try the case on November 14. Although defendants dispute this point, according to Judge Meyer both counsel indicated they had no problem with having the case assigned to Judge Vargas. Judge Meyer directed them to report to Judge Vargas's courtroom "forthwith." Counsel immediately reported to the courtroom and briefly consulted with Judge Vargas. Judge Vargas confirmed the bench trial and the November 14 trial date. Within an hour after leaving the courtroom, defense counsel filed a section 170.6 challenge to Judge Vargas.
Judge Vargas's clerk contacted defense counsel in the afternoon of November 9 seeking an explanation for why defense counsel failed to raise the issue with Judge Meyer or Judge Vargas that morning. Defense counsel explained he had not had an opportunity to discuss the matter with his clients and did not want to raise the possibility of a section 170.6 challenge unless he was actually going to file one. Judge Vargas subsequently denied the challenge as untimely.
Defendants filed this petition asserting the superior court improperly denied the challenge. After considering the parties' briefing and arguments, as well as briefing and arguments from the superior court,*fn2 we conclude the challenge was timely and grant the petition.*fn3
"We review the trial court's denial of the section 170.6 challenge for an abuse of discretion. A trial court 'abuses its discretion when it erroneously denies as untimely a section 170.6 challenge.' " (D.M. v. Superior Court (2011) 196 Cal.App.4th 879, 886.)
"Section 170.6 permits a party to an action to disqualify summarily an assigned judge based on a sworn statement of the party's belief that the judge is prejudiced against that party or the party's attorneys. Provided the statement is timely and in proper form, the judge has no discretion to refuse the challenge. [Citations.] The right to disqualify a judge under section 170.6 ' "is 'automatic' in the sense that a good faith belief in prejudice is alone sufficient, proof ...