Malekow v. Super. Ct.
Filed 12/24/09 Malekow 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LAWRENCE MALEKOW, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; GEORGE VALVERDE, as Director, etc., et al., Real Parties in Interest. | E049523 (Super.Ct.No. CIVDS914776) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. W. Robert Fawke, Judge. Petition granted.
Connally & Gardner and Marcie Gardner for Petitioner.
No appearance for Respondent.
Edmund G. Brown, Jr., Attorney General, and Ernesto J. Fong, Deputy Attorney General, for Real Parties in Interest.
INTRODUCTION
In this matter, we have reviewed the petition and offered respondent and real parties in interest the opportunity to respond; no response has been received. 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.)
DISCUSSION
A peremptory challenge pursuant to Code of Civil Procedure section 170.6 is timely as long as it is made before the judge decides a matter involving a determination of contested fact issues relating to the merits. (Code Civ. Proc., 170.6, subd. (a)(2).) The judge must actually have resolved factual disputes before the challenge may be deemed untimely. (Barrett v. Superior Court (1999) 77 Cal.App.4th 1.)
In this case, Judge Fawke was asked to stay enforcement of the license suspension ordered by real party in interest, the Department of Motor Vehicles. It is doubtful that such an interim order would ever reflect a resolution of factual matters material to the case. (See Guardado v. Superior Court (2008) 163 Cal.App.4th 91; Landmark Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d 525; but see Pacific etc. Conference of United MethodistChurch v. Superior Court (1978) 82 Cal.App.3d 72.) Here, the only determination Judge Fawke made was that, petitioners license having been suspended, the interests of public safety required no stay be granted. This determination had nothing to do with the underlying merits of the suspension or petitioners legal positionmatters which were not even presented to the court at the hearing.
Accordingly, the peremptory challenge, which was filed only six days after the petition, was timely, and the trial court erred in rejecting it.
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order rejecting petitioners peremptory challenge under Code of Civil Procedure section 170.6 and to accept the disqualification as timely.
Given the lack of response to the petition and our order, this opinion shall be final forthwith.
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
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
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