You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted.
Promptly after the assignment of a judge who was potentially biased against him, the petitioner in Ionescu v. Superior Court (Contra Costa) (D1d3 Aug. 26, 2021) 2021 WL 3782724 (nonpub. opn.) (docket here) made a challenge for cause under Code of Civil Procedure section 170.1. The petitioner is a criminal defendant charged with making threats against judges, and the assigned judge here was a colleague of one of the judges the petitioner allegedly had threatened.
The judge rejected the petitioner's challenge out of hand as untimely, but on grounds that were pretty clearly faulty: the judge reasoned the petitioner effectively wanted to disqualify that court's entire bench, given most of them were colleagues of the judges the petitioner allegedly had threatened. And because the case had been pending for two years, the CCP 170.1 challenge to the entire bench was untimely. (But the petitioner did not challenge the entire bench, just that one judge. And even if the challenge would have led to more challenges to judges of that court, well, that is why these types of cases often are venued in the Superior Court of a different county.)
So the petitioner filed a writ petition in the Court of Appeal, and a request for a stay of proceedings in the trial court. But, as it most often does, the Court of Appeal summarily denied the writ petition. And it denied the stay as well.
So far, things are going pretty much according to pattern: judicial disqualification rarely works, and writ petitions rarely work. But things change when petitioner files a petition for review in the California Supreme Court. The Supreme Court granted the petition for review, and transferred the matter back to the Court of Appeal with directions to vacate its summary denial and to issue an order to show cause why relief should not be granted. The Supreme Court also stayed the proceedings in the trial court.
The Court of Appeal complied. And issuing an order to show cause entitles the petitioner to full briefing and oral argument, and may result in an opinion that will become law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 894.)
The trial judge filed a return brief. (The district attorney opted to take no position in the matter.)
The court also indicated in its OSC that, although the parties were entitled to oral argument if requested, the court was not interested in hearing it. So the parties did not request it. ("The justices will be familiar with the facts and issues, will have conferred among themselves on the case, and will not require oral argument.")
The Court of Appeal issued the writ. The petitioner timely made the section 170.1 challenge, which under section 170.3(c)(1) is to be presented "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.’ ” (Hollingsworth v. Superior Court (1987) 191 Cal.App.3d 22, 27.) It did not matter the challenge was not "filed" — the judge had unequivocally rejected it when petitioner made it orally, and the petitioner was not required to risk contempt by proceeding to make the same challenge again in writing. And the petitioner also was not challenging the entire bench, just the assigned judge. So striking the judicial disqualification challenge as untimely was error.
A peremptory writ issued, directing the trial court to vacate its strike order, and to process the challenge on the merits.
Writ petitions are processed very quickly, which can increase the chances the Court of Appeal could get it wrong. If you have a righteous writ petition, be prepared to seek review in the Supreme Court immediately. As this case illustrates, these things can get turned around.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.