Gjersvold v. Super.
Filed 5/30/13 Gjersvold v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
MATTHEW JOHN GJERSVOLD,
Petitioner,
v.
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Respondent;
THE PEOPLE,
Real
Party in Interest.
E058426
(Super.Ct.No.
SWF1300918)
OPINION
ORIGINAL
PROCEEDINGS; Petition for writ of mandate.
Rafael A. Arreola, Judge.
(Retired judge of the San Diego Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Petition granted.
Brian
Boles, Interim Public Defender, and William A. Meronek, Deputy Public Defender,
for Petitioner.
No
appearance for Respondent.
Paul
Zellerbach, District Attorney, and Kelli Catlett, Deputy District Attorney, for
Real Party in Interest.
In this matter, we have
reviewed the petition, the real party in interest’s response, as well as the record. We have determined that resolution of the
matter involves the application of settled principles of law, and that issuance
of a peremptory writ in the first instance is therefore appropriate. (Palma
v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
It is
generally stated that the appellate court reviews the trial court’s ruling on a
statement of disqualification for abuse of discretion. (Grant
v. Superior Court (2001) 90 Cal.App.4th 518.) However, where, as here, the facts are undisputed,
we must merely apply the applicable law to those facts.
As a
general rule, a challenge of a judge is permitted under Code of Civil Procedure
section 170.6
name="_ftnref1" title="">[1] any time before the commencement of a trial or
hearing. (People v. Superior Court (Lavi)
(1993) 4 Cal.4th 1164, 1171 (Lavi).)
As
explained in section 170.6, subdivision (a)(2), the exceptions to the general
rule are known as the 10-day/5-day rule, the master calendar rule, and the all
purpose assignment rule. For any given
factual scenario, it must be determined whether any of these exceptions are
applicable, or whether the general rule (the commencement of trial rule) should
apply. (Lavi, supra, 4 Cal.4th at
p. 1172.) None of these exceptions
apply to the present circumstances.
Petitioner presented his challenge to Judge Arreola at the conclusion of
the hearing on March 29, 2013. The
recusal was too late to affect that hearing.
However, it was timely with respect to any and all future hearings
before Judge Arreola because he had not ruled on a contested fact issue
involving the merits of the case.
DISPOSITION
Let a
peremptory writ of mandate issue
directing the Riverside County Superior Court to set aside its order denying
petitioner’s motion for disqualification of Judge Arreola and to issue a new
order granting this motion.
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.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIERZ
P. J.
MILLER
J.
Procedure.
