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Johnny W. v. Superior Court (E.R.)

California Court of Appeals, First District, First Division

March 9, 2017

JOHNNY W., Petitioner,
THE SUPERIOR COURT OF SAN FRANCISCO CITY AND COUNTY, Respondent E.R., et al., Real Parties in Interest.

         San Francisco City and County No. JD17-3035 Superior Court Hon. Susan M. Breall Trial Judge.

          Law Offices of Amanda Inocencio, Amanda Inocencio for Petitioner.

         BY THE COURT[*]

         Petitioner Johnny W. (Father) is a respondent in a juvenile dependency proceeding. (Welf. & Inst. Code, § 300.) He seeks writ review of an order of the trial court denying a motion to disqualify the assigned judge under Code of Civil Procedure section 170.6 (section 170.6).[1] The court denied the motion as untimely, reasoning that the motion was filed after the court made “substantive rulings” at an initial detention hearing. As we explain, those rulings did not preclude Father from making his section 170.6 challenge because they did not “involv[e] a determination of contested fact issues related to the merits.” (§ 170.6, subd. (a)(2).) We therefore grant Father's petition and issue a peremptory writ in the first instance, as we previously informed the parties was possible. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180 (Palma).)

         Factual and Procedural Background

         On February 7, 2017, the San Francisco County Human Services Agency (the Agency) filed a Welfare and Institutions Code section 300 petition on behalf of Father's son, E.R. (Minor). The following day, the trial court held an initial detention hearing. Father appeared, and the court appointed counsel for him. Father's counsel asked to set the matter for a contested detention hearing but explained she could not proceed immediately because her witnesses and evidence were not available and because she was in trial in another department.

         The court proposed hearing the matter on Friday, February 10, but Father's counsel informed the court she would be unavailable. After the court told counsel February 10 was the only day on which it could conveniently hear the matter, counsel invoked her client's statutory right to a one-day continuance. (Welf. & Inst. Code, § 322 [“Upon motion of the minor or a parent or guardian of such minor, the court shall continue any hearing or rehearing held under the provisions of this article for one day, excluding Sundays and nonjudicial days.”]; Cal. Rules of Court, rule 5.672(a).) The court then told counsel she would have to return the next day, February 9, “for the one-day continuance.” Counsel agreed to return but told the court, “I will not be able, by that time, to hire a social worker, [or] go out and take photographs to represent my case.” The court observed “that's always the situation when you want a full-blown contested hearing.” It suggested “it might be wiser to set it on a no time waiver basis, ” and if counsel needed time to investigate, to then set the matter for a contested jurisdictional/dispositional hearing.

         The court then proceeded to “make [its] record.” It stated that it had read and considered the February 7 detention report, and it found notice had been given as required by law. It then found there had been a prima facie showing Minor came within section 300 of the Welfare and Institutions Code, there was a substantial danger to Minor's physical and emotional well-being, and there were no reasonable means by which Minor's physical and emotional safety could be safeguarded without removing Minor from Father's custody. The court ordered Minor temporarily detained under the care and custody of the Agency. It approved Minor's placement with his mother.

         On February 9, Father's counsel filed a declaration and disqualification motion under section 170.6. When court convened that morning, the court noted it had received Father's motion. The court found it to be untimely because the court had “made substantive rulings on the detention yesterday.” In response to Father's counsel's disagreement, the court stated it had made “temporary detention findings which are substantive findings.” Father's counsel again objected, but the court denied the motion as untimely. It renewed its detention findings and ordered the parties to return on February 28 for a contested jurisdiction hearing.

         On February 21, Father filed a timely petition for writ of mandate seeking review of the denial of his disqualification motion. (Code Civ. Proc., § 170.3, subd. (d); see In re Sheila B. (1993) 19 Cal.App.4th 187, 194 [petition for writ of mandate is exclusive means of appellate review of juvenile court's denial of § 170.6 challenge].) The following day, we requested informal opposition to the petition and notified the parties that we might proceed by issuing a peremptory writ in the first instance. That same day, Minor filed a letter in support of the relief requested in the petition, and the next day, the Agency's counsel informed us it had no position on the petition and did not intend to file informal opposition. On February 24, we temporarily stayed proceedings in the juvenile court pending further consideration of the petition.[2]


         Father contends the juvenile court erred in ruling that his disqualification motion was untimely filed. He argues that he filed the motion within the time limits set by the statute, and he disputes the juvenile court's conclusion that the court's findings and orders at the initial detention hearing rendered the motion untimely. We agree with Father.

         I. Father's Motion Was Filed Within the Statutory Deadline.

         Section 170.6, subdivision (a)(2) provides that any party or the attorney for any party may challenge the assigned bench officer if “the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee” to whom the case has been assigned. This section applies to juvenile court cases. (Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39 (Daniel V.) [juvenile delinquency proceeding]; Pamela H. v. Superior Court (1977) 68 Cal.App.3d 916, 918 [“section 170.6 is equally applicable and constitutional in juvenile court proceedings”].) If a party's or attorney's motion “is timely and in proper form, immediate disqualification is mandatory.” (In re Jose S. (1978) 78 Cal.App.3d 619, 625 (Jose S.).) ...

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