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Fry v. Superior Court

California Court of Appeal, Second District, First Division

December 19, 2013

Jack FRY et al., Petitioners,
v.
The SUPERIOR COURT of Los Angeles County, Respondent.

ORIGINAL PROCEEDINGS in mandate. Joanne O'Donnell, Judge. Petition denied. (Los Angeles County Super. Ct. No. BS140201).

Page 476

[Copyrighted Material Omitted]

Page 477

COUNSEL

Rosen Bien Galvan & Grunfeld, Ernest Galvan and Margot Mendelson, San Francisco, for Petitioners.

Frederick R. Bennett, Los Angeles, for Respondent.

OPINION

CHANEY, J.

Page 478

Petitioners Jack Fry, Gary Cline, Sandra Carlsen, Yvette Moreno, and the Retired Fire & Police Association argue the trial court erred by denying as untimely their motion to disqualify itself pursuant to Code of Civil Procedure section 170.6.[1] We disagree. The petition is denied.

BACKGROUND

This petition arises from writ proceedings below filed against the City of Los Angeles. On March 18, 2013, the clerk of the Los Angeles Superior Court notified petitioners that the case had been assigned to Judge Joanne O'Donnell in Department 86, a writs and receivers department. On April 3, petitioners' counsel faxed an affidavit [166 Cal.Rptr.3d 330] of prejudice concerning O'Donnell to the court's " central fax filing office." The affidavit, set forth on Los Angeles Superior Court Form LACIV 015, which is entitled:

" AFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (Code Civ. Proc., ยง 170.6)"

Form LACIV 015 provided in full the following: " I am a party (or attorney for a party) to this action or special proceeding. The judicial officer named above, before whom the trial of, or a hearing in, this case is pending, or to whom it has been assigned, is prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney), so that declarant cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judicial officer."

Page 479

The affidavit identified the parties and case number, identified Judge O'Donnell as the bench officer being challenged, and set forth her department number. No separate motion accompanied the affidavit and no plea for relief was made other than was implied by the title of Form LACIV 015.

Along with Form LACIV 015, petitioners' counsel transmitted Judicial Council Form MC-005, entitled " Facsimile Transmission Cover Sheet." Form MC-005 ...


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