Molina v. Superior Court
Filed 10/3/11 Molina v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| FERNANDO MOLINA, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D060500 (San Diego County Super. Ct. No. DS045738) |
| MARIA TRONCOSO, Real Party in Interest. | |
Proceedings in mandate after superior court denied a peremptory challenge. Roderick W. Shelton, Judge. Petition granted.
FACTUAL AND PROCEDURAL BACKGROUND
On July 18, 2011, Maria Troncoso filed a notice of registration of out-of-state support order, a petition to establish a sister state judgment, and an income and expense declaration in San Diego County Superior Court, and obtained an order to show cause on a modification of child support. On July 25, the court issued notice that the case had been assigned to Judge Shelton for all purposes.
On August 22, Fernando Molina filed a responsive declaration to the order to show cause and a peremptory challenge to Judge Shelton under Code of Civil Procedure section 170.6.[1] Judge Shelton denied the challenge on August 22. Molina maintains he was never served with a copy of the order denying the challenge and did not discover the challenge had been denied until September 13 when his attorney called the court.
Molina filed this petition asserting his peremptory challenge was timely and should have been granted. He contends his writ petition is also timely even though it was filed more than 10 days after the order denying the challenge issued because it is the service of written notice of entry of the contested order that triggers the statutory 10-day period for seeking writ review, and he has not been served with the order or notice of any kind.[2] We requested a response to the petition, and issued Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) No response was forthcoming.
DISCUSSION
Molina first appeared in this action on August 22. He filed a "judicial council form" peremptory challenge to the judge assigned to the case for all purposes on the day he appeared. The challenge was timely under section 170.6, subdivision (a)(2), which allows a party who has not yet appeared in the action to file a challenge to an "all purpose" assignment judge within 15 days after his or her appearance, and the court had a mandatory duty to accept it without further inquiry. (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4; Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59.) Our examination of the superior court file further reveals no evidence to show "service of written notice of entry of the court's order determining the question of disqualification" (§ 170.3, subd. (d)) and means the writ petition is also timely. (D.M. v. Superior Court (2011) 196 Cal.App.4th 879, 885-886.) Under these circumstances, we grant the petition.
Because the facts are undisputed and the law is well settled, a peremptory writ in the first instance proper is appropriate. (§ 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ issue directing the superior court to vacate the August 22, 2011 order denying the challenge, and to issue an order granting the challenge and referring the case for reassignment. Molina is entitled to costs in the writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).) The opinion will be final immediately as to this court. (Id., rule 8.490(b)(3).)
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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