Torricellas v. Superior Court CA4/2

• Court: California Court of Appeal
• Decided: June 10, 2016
• Docket: E065723
• Status: Unpublished

Opinion

Filed 6/10/16 Torricellas v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THERESA TORRICELLAS,

Petitioner, E065723

v. (Super.Ct.No. RIC1509979)

THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,

Respondent;

PHYLLIS BURKHART, et al.,

Real Parties in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate or prohibition.

Sunshine S. Sykes, Judge. Petition granted.

Theresa Torricellas, in pro. per., for Petitioner.

No appearance for Respondent.

No appearance for Real Parties in Interest.

1 The court has read and considered the petition for writ of mandate and

requested an informal response from real parties in interest. Our order requesting an

informal response notified real parties in interest that a peremptory writ might issue

unless it showed good cause to the contrary, but real parties in interest failed to

respond in any way. We now issue a peremptory writ in the first interest because real

party in interest received “due notice” (Code Civ. Proc., § 1088) and “it appears that

the petition and opposing papers on file adequately address the issues raised by the

petition, that no factual dispute exists, and that the additional briefing that would

follow issuance of an alternative writ is unnecessary to disposition of the petition.”

(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is the plaintiff in an action in the trial court. On March 4, 2016, she

filed a statement alleging two judges who had taken action in her case were biased

against her and therefore disqualified from taking further actions in the case. (Code

Civ. Proc., § 170.3, subd. (c)(1).) One of those judges filed an order striking the

statement of disqualification on March 18, 2016. This petition challenges that order.

DISCUSSION

Petitioner contends the trial court’s failure to strike or answer her statement of

disqualification within 10 days must be deemed a consent to disqualification. (Code

Civ. Proc., § 170.3, subd. (c)(4).) We agree.

2 A writ of mandate is the sole means of review of a trial court “determination of

the question of the disqualification of a judge.” (Code Civ. Proc., § 170.3, subd. (d).)

“We review [such a] determination for abuse of discretion.” (Fry v. Superior Court

(2013) 222 Cal.App.4th 475, 481.)

Subdivision (c)(1) of Code of Civil Procedure section 170.3 allows a party who

thinks a judge should be disqualified to file a statement of disqualification for cause.

Subdivision (c)(3) of the same statute allows the judge who is allegedly subject to

disqualification to file either a consent to disqualification or an answer. A judge who

is challenged by a statement of disqualification may also strike that statement if it “is

untimely filed or if on its face it discloses no legal grounds for disqualification.”

(Code Civ. Proc., § 170.4, subd. (b).)

However, a judge who is challenged by a statement of disqualification only has

10 days from the date of filing to file an answer or consent to disqualification. (Code

Civ. Proc., § 170.3, subd. (c)(3).) Similarly, subdivision (c)(4) of Code of Civil

Procedure section 170.3 reads: “A judge who fails to file a consent or answer within

the time allowed shall be deemed to have consented to his or her disqualification and

the clerk shall notify the presiding judge or person authorized to appoint a replacement

of the recusal as provided in subdivision (a).” This means that a judge who fails to

strike an untimely or legally insufficient statement of disqualification within 10 days

of its filing will be automatically disqualified. (Lewis v. Superior Court (1988) 198

3 Cal.App.3d 1101, 1103-1104; Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415,

420-422.)

In this case, the trial court struck petitioner’s statement of disqualification more

than 10 days after it was filed.

The March 18, 2016 striking of the March 4, 2016 statement of disqualification

was untimely and therefore ineffective. This means that both of the judges petitioner

sought to have disqualified are deemed disqualified. (Code Civ. Proc., § 170.3,

subd. (c)(4).) The trial court abused its discretion by purporting to strike petitioner’s

statement of disqualification after its power to do so had elapsed.

DISPOSITION

Let a peremptory writ of mandate issue directing the respondent Superior Court

of Riverside County to vacate the March 18, 2016 order striking petitioner’s statement

of disqualification. Judges Sunshine S. Sykes and Gordon R. Burkhart are disqualified

from “further participat[ing] in the proceeding” (Code Civ. Proc., § 170.3., subd.

(a)(1)) by operation of law. The stay of proceedings heretofore imposed shall be

dissolved upon the finality of this decision.

Petitioner is directed to prepare and have the peremptory writ of mandate

issued, copies served, and the original filed with the clerk of this court, together with

proof of service on all parties.

4 Each party to bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J.

We concur:

MILLER J.

SLOUGH J.