Simmons v. Superior Court
Filed 5/6/13
Simmons v. Superior Court CA1/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 ONE
CHARLES SIMMONS et al.,
Petitioners,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;
CHEVRON USA, INC.,
Real Party in
Interest.
A138018
(Contra Costa County
Super. Ct. No.
MSC1201841)
REBECCA A.J. ADAMS et al.,
Petitioners,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;
CHEVRON USA, INC.,
Real Party in
Interest.
A138022
(Contra Costa County
Super. Ct. No.
MSC1202777)
Petitioners Charles Simmons et al.
(collectively “Simmonsâ€), brought a toxic tort suit against real party in
interest, Chevron USA, Inc., (Chevron), in Contra Costa Superior Court. Petitioners Rebecca Adams et al.
(collectively “Adamsâ€), filed a similar suit shortly thereafter. The Simmons and Adams plaintiffs share the
same counsel. Plaintiffs in both cases
seek mandamus relief ordering the superior court to grant their peremptory
challenges, filed pursuant to Code of Civil Procedure section 170.6,
challenges as untimely. Upon our own
motion, we hereby consolidate these related
disposition, and, for reasons explained below, grant mandamus relief as
requested.
Background
In their complaint, the Simmons
plaintiffs allege multiple causes of action arising from a fire at the Chevron
refinery in Richmond in August 2012. The
complaint was stamped, “Per Local Rules this case is assigned to Dept 33.†On August 15, the date of
filing, a deputy clerk issued a Notice of Case Management Conference,
scheduling the conference on December 31, 2012, in Department
33.
On August 22, the deputy clerk sent
a Notice of Reassignment of Case (Notice) advising plaintiffs the case “is
being reassigned for all purposes to the Honorable Barry P. Goode, Department
17, pursuant to complex designation.â€
The Notice further advised the date of the case management conference
had been advanced to December 27, 2012, in Department
17.
Subsequently, the trial court
entered a minute order continuing the
case management conference to January 30, 2013, in Department
17. ~(Ex 5)~ The clerk of court sent a notice dated September 26, 2012, to the
parties stating the settlement conference had been continued from December 27,
2012, to January 30, 2013, at 9:00 a.m. in Department 17.
On November 27, 2013, the Adams plaintiffs filed their complaint, and the Simmons plaintiffs filed
a first amended complaint. On the same
day, a “Notice of Assignment to Department Seventeen for Case Management
Determination†was filed in Adams,
stating the matter is assigned to “Department 17, Judge B. Goode presiding, for
all purposes.â€
On November 27, 2013, Judge Goode
held a case management conference in another case, Abercrombia v. Chevron. The
Richmond refinery fire but involved different plaintiffs and different counsel
than those in Simmons and
The minute order entered after the Abercrombia
case management conference states counsel for Chevron informed the court “that
at this time there are 2 related cases and [there] may be more filed. Attorney Correll informs the court that the
cases should be coordinated for discovery and deposition if not
consolidated.†The minute order also
states, “Further case management conference set for 01/30/13 at 9:00 in
Department 17.†Last, the minute order
states, “The court informs counsel that as of 1/2/13 this case is reassigned to
Dept 9 as Judge Craddick will be the Complex Department judge at that time.â€
On November 28, 2012, counsel for
Chevron, attorney Charles Correll, sent an e-mail to counsel representing
plaintiffs in the Abercrombia and
Abercrombia, Judge Goode
instructed me to reach out to lead counsel in the three cases pending in Contra
Costa County to meet and confer about coordinated discovery and other case
management issues. Ideally, your side
would confer amongst yourselves and come to some agreement as to your
recommendations before we all meet.
[¶] Additionally:
[¶] Judge Goode will no longer handle the complex case docket
as of January 2. All of his cases are
being transferred to Judge Craddick.
Judge Good is consolidating the CMCs for Simmons and Abercrombia
for January 30th. [¶] Judge Goode
will talk with the judge in McKenzie. We can expect an order transferring
moving that CMC to January 30th as well.â€
During the first week of January
2013, counsel for the Simmons plaintiffs contacted the superior court in
connection with filing a motion for pro hac vice, and were informed by court
staff over the telephone that the matter had been reassigned to Judge Craddick. On January 8, 2013, the Simmons and Adams
plaintiffs filed peremptory challenge motions pursuant to section 170.6. In both motions, attorney Adante Pointer
declared “During the Court’s case management conference on November 27, 2012,
the Court informed the parties that the following matters, independently filed
in this Court, would be coordinated:
[¶] [McKenzie;
and that on January 2, 2013, the Honorable Judge Judith Craddick would be
reassigned to the Coordinated Matters.
[¶] The Honorable Judith Craddick . . . is prejudiced against the
plaintiffs or the interests of the plaintiffs so that plaintiffs cannot . . .
have a fair and impartial trial or hearing before such judge.â€
On January 15, 2013, Chevron filed
objections to the peremptory challenges filed in Simmons and Adams,
asserting the challenges were untimely under section 170.6. Chevron’s
objections included a declaration by Attorney Correll stating he sent an e-mail
to plaintiffs’ counsel on November 28, 2012, and “[t]his email confirmed the
assignment of this case to Judge Craddick.â€
Chevron asserted plaintiffs “concede that the reassignment of this case
to Judge Craddick was announced by the Court on November 27, 2012[,] . . .
[and Chevron’s] counsel advised Plaintiffs’ counsel of this by e-mail on
November 28, 2012.†Chevron further
asserted plaintiffs “then waited 43 days to file this challenge, 28 days longer
than is the period permitted under the statute,†and on that basis asked the
court to deny the peremptory challenges as untimely. On February 26, 2013, the clerk of court sent
notice by fax informing plaintiffs’ their peremptory challenges were rejected
as untimely.
“An order granting or denying a
peremptory challenge is not an appealable order and may be reviewed only by way
of a petition for writ of mandate filed within 10 days of notice to the parties
of the decision. [Citation.] The standard of review is abuse of
discretion.†(Grant v. Superior Court (2001) 90 Cal.App.4th 518, 523.)
“ ‘The Legislature has enacted
detailed procedural statutory requirements regarding the time during which an
affidavit to disqualify a judge may be filed.
(§ 170 et seq.) Any superior
court policy or practice that is in conflict with those statutory time
provisions is void. [Citations.]’ [Citations.]
[¶] . . . [¶] As a general
rule, section 170.6 permits challenge of a judge at any time before
commencement of a trial or contested hearing, with three exceptions: (1) the ‘all-purpose assignment’ rule . . . ;
(2) the ‘master calendar’ rule; and (3) the ‘10–day/5–day’ rule.†(D.M.
v. Superior Court (2011) 196 Cal.App.4th 879, 886, fn. omitted.)
Here, the exception at issue is the
all-purpose assignment rule. Generally,
“two prerequisites†must be met before the “all-purpose assignment ruleâ€
exception applies under section 170.6:
“First, the method of assigning cases must ‘instantly pinpoint’ the
judge whom the parties can expect to ultimately preside at trial. Second, that same judge must be expected to
process the case ‘in its totality’ [citation], from the time of the assignment
. . . .†(People v. Superior Court (Lavi)
(1993) 4 Cal.4th 1164, 1180, fns. omitted; accord, Grant v. Superior Court, supra, 90 Cal.App.4th at p. 524.)
Chevron contends the two
prerequisites for an all purpose reassignment from Judge Goode to Judge
Craddick were met in Simmons and
distributed by counsel for Chevron “instantly pinpointed†Judge Craddick
as the judge the parties could expect to preside at trial, and, (2) under
the local rules judges are assigned for all purposes, therefore Judge Craddick
could be expected to process the case in its totality.
What Chevron disregards is that the
assignment or reassignment of cases is a matter for the court, not opposing
counsel. The November 28 e-mail from
counsel for Chevron advised that at the November 27 case management conference
in the Abercrombia matter, Judge
Goode announced he would “no longer handle the complex case docket as of
January 2†and “[a]ll of his cases are being transferred to Judge
Craddick.†However, there is no
transcript of the November 27 case management conference; moreover, the minute
order for the November 27 case management conference in Abercrombia states “as of 1/2/13 this case is reassigned to Dept 9 as Judge Craddick will be
the Complex Department judge at that time.â€
(Italics added.) In short, the
minute order specifically reassigns only the Abercrombia matter to Judge Craddick; it does not reassign
either Simmons or
received a notice of case management conference upon filing their complaint,
informing them that the case had been assigned to Judge Goode for all purposes;
and, as of November 27, the last communication the Simmons plaintiffs received
from the court informed them the case management conference scheduled for
December 12, 2012, had been continued to January 30, 2013, in Department
17 before Judge Goode. Because there is
no evidence petitioners received any notice from
the court in 2012 that their cases had been reassigned to Judge Craddick,
the November 28 e-mail from Chevron’s counsel did not trigger the 15-day period
for filing a challenge under section 170.6.
Cybermedia,
Inc. v. Superior Court (1999) 72 Cal.App.4th 910 (Cybermedia), provides useful guidance. In Cybermedia,
the case initially was assigned for all purposes to Judge Baker, the
individual calendar judge in department 31.
Subsequently, Judge Baker was replaced in department 31 by Judge
Ashmann. The public information office
of the superior court mailed to Cybermedia’s law firm “a general notice,
including this change in judges, but with no indication of case names or full
case numbers.†Later, counsel for
Cybermedia appeared at a hearing on a demurrer and for the first time learned
Judge Ashmann was now presiding in department 31. Cybermedia promptly filed a peremptory
challenge to Judge Ashmann, which the court rejected as untimely. After receiving the court’s ruling on his
section 170.6 motion, counsel contacted his law firm’s services clerk and
learned the clerk had received the “general notice†from the court regarding
the assignment of Judge Ashmann in place of Judge Baker. However, the law firm services clerk did not
forward a copy of the general notice to counsel because the notice “was
addressed only to the law firm’s clerk, who does not keep any record of which
attorneys in the firm have cases assigned to the individual judicial departments.†Cybermedia sought a writ of mandate directing
the superior court to set aside an order denying their section 170.6 motion on
the grounds its counsel was not given notice of Judge Ashmann’s assignment. (Cybermedia,
supra, 72 Cal.App.4th at pp. 912–913.)
The appellate court stated the issue
before it was “whether the general notice mailed by the superior court’s public
information office was sufficient notice to petitioners so as to trigger the
15-day time period.†(
914.) The court concluded the general
notice did not trigger the applicable 15-day period to file a section 170.6
motion because, “It was not addressed to the attorney assigned to petitioner’s
case . . . . It did not reference the
case name and full case number, which might have enabled the employee of
petitioner’s attorneys sorting the mail to route the general notice to the
assigned attorney.†(
The court concluded Cybermedia’s section 170.6 motion was timely because
it was filed three days after petitioners received “actual notice of the
assignment†when counsel appeared before Judge Ashmann. (Cybermedia,
at p. 914.)
Under Cybermedia, therefore, a
“notice†of reassignment for all purposes is sufficient to trigger the applicable
15-day period under section 170.6 to file a peremptory challenge only if the
notice is a communication from the court, addressed directly to counsel of
record or referencing the case name and number if addressed generally to
counsel’s law firm.
title="">[2] (See Cybermedia,
supra, 72 Cal.App.4th at p. 914.)
Here, petitioners received no written notice of reassignment of any sort
from the court; however, petitioners received actual notice of reassignment
from court staff when they contacted the court early in January 2013 about
filing a pro hac vice motion, whereupon they timely filed their section 170.6
motions. Bearing in mind section 170.6
“guarantees a litigant ‘an extraordinary right to disqualify a judge’ †and
that the section “ ‘should be liberally construed with a view to effect its
objects and to promote justice’ †(Nissan
Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 154), this record
cannot support a finding the November 28 e-mail sent by counsel for Chevron was
sufficient notice of reassignment to trigger the applicable 15-day period to
file a motion under section 170.6.
Chevron cites no case, and we have
found none, where an appellate court upheld denial of a section 170.6 motion as
untimely because the moving party received notice of an assignment or
reassignment, not directly from the court or its staff, but purportedly
conveyed orally by the court to opposing counsel and from opposing counsel to
the moving party. Moreover, even at face
value, the “second-hand notice†from Chevron’s counsel could reasonably be read
by plaintiffs as a courtesy, “for-your-information†type of advisement that a
reassignment of the Simmons and Adams cases to Judge Craddick in Department 9
was imminent, and could reasonably have expected to receive notification from
the court of any such reassignment when it occurred.
In urging that petitioners should be
charged with notice on November 28, 2012, Chevron asserts “our Supreme Court
held that either actual or constructive knowledge—not a formalized notice from
the court—is sufficient†notice under section 170.6, citing
1182–1185. Lavi’s holding is not so sweeping.
Rather, after noting “the conflict among lower courts as to whether an
assignment to a department by number, rather to a judge by name, can be an
assignment for all purposes[,]†the Court stated: “For the reasons discussed in part II.D. of
this opinion, post, which concerns
the application of the 10-day/5-day rule, we hold that when there is an
assignment to a department by number, if a particular judge regularly presides
in that department and that judge’s identity is either known to the litigant
and if there is reasonable certainty that this judge will ultimately hear the
case (i.e., evidence is produced indicating that the case will likely remain in
the department to which it was initially assigned), then a court may properly
invoke the all purpose assignment rule, assuming such an assignment is
involved.†(4 Cal.4th at p. 1180, fn.
12, italics added.) The other comment
quoted by Chevron, placed in full context, is as follows (Chevron quote in
italics); “Whether the master calendar
rule can be fairly applied when there is an assignment to a department by
number, rather than to a judge by name, is a fact-specific inquiry, but,
with knowledge of which judges regularly preside in the various departments of
the court system in which they are litigating.†(4 Cal.4th. at p. 1185.) The court’s guidance regarding the
all-purpose assignment rule and the master calendar rule where assignments are
by department number, not to a particular judge, has no application to the case
before us.
We have previously notified the
parties we might issue a peremptory writ in the first instance. (Palma
U.S. v. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180.) No useful purpose would be served by further
briefing and oral argument.
Accordingly, let a peremptory writ
of mandate issue commanding respondent Contra Costa County Superior Court, in
its case Nos. MSC12-01841 and MSC12-02777, to vacate its orders rejecting
petitioners’ peremptory challenges under section 170.6 and to enter new orders granting
said peremptory challenges.
The temporary stays imposed by this
court in these matters shall dissolve upon issuance of the remitittur. (See Cal. Rules of Court, rules 8.490(c),
8.272.) Petitioners are awarded
costs. (Cal.
Rules of Court, rule 8.493(a).)
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
references are to the Code of Civil Procedure.
name="_ftn2" title="">[2] We need not decide whether
the verbal notice of reassignment communicated to plaintiffs’ counsel by clerk
staff over the telephone was sufficient notice under section 170.6, since
plaintiffs thereafter filed section 170.6 challenges.
