Pan v. Super. Ct.

Filed 2/26/08 Pan v. Super. Ct. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioner Jessica Pan (Pan) petitions this court for a writ of mandate, seeking to have us reverse the denial of her peremptory challenge against Commissioner Susan Jakubowski of the San Mateo Superior Court. Her challenge was denied in the superior court as untimely because the Commissioner had ruled on two ex parteapplications before the challenge was filed. As explained below, the challenge was timely and we therefore issue a writ directing the superior court to vacate its order of January 15, 2008, denying petitioners peremptory challenge and to issue a new and different order granting it.

PROCEDURAL HISTORY

On December 27, 2007, real party in interest Michael Beesley (Beesley) filed a petition to establish parental relationship, alleging that he is the father of an infant, William Michael Beesley, born December 6, 2007, and asserting that Pan is the childs mother. On January 2, 2008, the case was assigned to Commissioner Jakubowskis department, Department 29, for all purposes. The same day, Beesley submitted an ex parteapplication to have custody awarded to him. Beesley did not notify Pan of that application because, he claimed, notice would frustrate the purpose of the orders sought in that it would cause Pan to become emotionally irrational and distraught, thereby placing the infant at risk. On the strength of this ex parteapplication, the Commissioner awarded temporary sole physical and legal custody to Beesley on January 2, and the order was filed on January 3.

On January 4 Pan submitted an ex parteapplication seeking to regain custody of her son and disputing the factual allegations Beesley had alleged in his ex parte application. In response, on January 8, the superior court modified its previous order: (1) Beesley continued to have temporary sole physical custody of the child, (2) Pan and Beesley were now to share legal custody, (3) Pan was permitted up to three weekly, four-hour, unsupervised visits with the baby, (4) Pan was to provide Beesley with breast milk to feed the child while he was in Beesleys care, and (5) the parties were to attempt to attend mediation before January 24.[1]

On January 11, 2008, Pan submitted her peremptory challenge, pursuant to California Code of Civil Procedure section 170.6, asserting that Commissioner Jakubowski was prejudiced against her. On January 15, the superior court denied this challenge because there had been a determination of [a] contested factual issue made on 1/2/08 by Dept. 29.

Pan filed her petition on January 23, seeking a writ of mandate from this court. On that date, we temporarily stayed all proceedings before Commissioner Jakubowski pending consideration of this matter, and directed real party to file an informal opposition by January 30. In our order we clarified that the superior court retained jurisdiction to reassign any proceedings in this case to another department on an interim or permanent basis. We also gave notice that if the circumstances so warranted, we might issue a peremptory writ in the first instance.

On January 25, 2008, pursuant to a new ex partecustody application, Judge Pfeiffer ordered that sole temporary physical custody be returned to Pan.[2] At the same time, Judge Pfeiffer reassigned the case to her department, Department 14, pending the determination of this writ petition.

On January 30, the day real partys opposition to the writ petition was due, we received a letter from his counsel stating that he did not intend to oppose the petition.

DISCUSSION

Section 170.6 of the Code of Civil Procedure, the statute that sets out the standards for peremptory challenges, provides, in pertinent part: The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding, or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein at the time and in the manner hereinbefore provided. (Code Civ. Proc.  170.6, subd. (a)(2).) The issue of timeliness here turns solely on whether the Commissioners January 2 and 8 rulings are determinations of contested factual issues on the merits.[3]

A judicial officers having acted on some preliminary hearing or matter that does not determine a contested factual matter on the merits is not a bar to a partys subsequently bringing a peremptory challenge against that officer. (Code Civ. Proc. 170.6, subd. (a)(2).) Nothing in the Commissioners rulings is relevant to the paternity determinationthe subject of the petition below. The only published case on point squarely holds that rulings on ex partemotions are not determinations of contested factual matters on the merits. (See Thompson v. Superior Court (1962) 206 Cal.App.2d 702.) In Thompson,the judge had issued various orders in the case including (1) orders to show cause, applied for by each of the parties, seeking temporary custody of the minors, (2) an ex partetemporary restraining order enjoining the defendant from removing the children from the family home, (3) ex partetemporary restraining orders enjoining the plaintiff from disposing of community property, from harassing the defendant, from residing within the family home and from removing the children from the defendants physical custody, and (4) various continuances. (Id. at 708.) Both the plaintiff and the defendant had brought ex parteapplications before the judge when plaintiff sought to disqualify him. Because every order made by that judge had either been made pursuant to an ex parteapplication or a stipulation of the parties, none was the result of a hearing upon a contested issue. (Id. at 709.) Thus, the Thompson court concluded the judge who had issued those orders based on ex parteapplications was subject to a section 170.6 challenge. (Id. at 710.)

In the more than 45 years since the publication of Thompson,no California published decision has disagreed with the principle that a judicial officers having acted on ex partemotions does not bar a party from bringing a peremptory challenge against him or her.[4] Under controlling statutory and case law, petitioners section 170.6 challenge must be deemed timely.

We note that we have received three requests to publish this opinion. Since requests for publication are to be made after an opinion is filed (see Cal. Rules of Court, rule 8.1120(a)(3)), these requests are premature. Interested parties may make a timely request for publication pursuant to California Rules of Court, rule 8.1120.

The relevant statute and the single published case on point support the conclusion that petitioners challenge was timely. Real party did not oppose the petition. Thus, the accelerated Palma procedure (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171) is appropriate because no purpose could reasonably be served by plenary consideration of the issue. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241.)

Let a peremptory writ of mandate issue directing respondent superior court to vacate its order denying petitioners peremptory challenge to Commissioner Jakubowski and enter a new and different order granting petitioners section 170.6 challenge.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Horner, J.*

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[1] The courts order erroneously states that Petitionerwho below is Beesleymay have unsupervised visitation with the infant; clearly, given the courts order awarding petitioner sole physical custody, the order should have read that the respondentPanwas entitled to the visitation. The courts interlineations in paragraph four of the order, which refer to respondent visiting the baby, clarify its true intent.

[2] Neither party informed this court of what has taken place in the superior court after the writ petition was filed. The fact that the child was returned to his mother temporarily is taken from the San Mateo Superior Court Register of Actions in this matter, of which we take judicial notice on our own motion. (See Evid. Code  452, subd. (d).)

[3] In denying the peremptory challenge, the superior court relied exclusively on the January 2 rulings. We note that the courts January 8 modification of its January 2 rulings was similarly in response to an ex parte application: Pans, submitted on January 4.

[4] One case, Mayr v. Superior Court (1964) 228 Cal.App.2d 60, 64, criticized Thompson on the grounds that the time for challenging a judge should run not from when an order is entered, but from when a hearing is convened. Such a distinction has no bearing on the issues currently before us.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.