Petitioners, International Union of Operating Engineers Local 12 (Union) and David Lanham (Lanham; hereinafter collectively defendants) seek a writ of prohibition restraining the trial judge, Edward Y. Kakita, from (1) hearing a pending motion for preliminary injunction and (2) presiding over any other proceedings in this action. The real parties in interest, Herzog Contracting Corporation (Herzog), Al Landes (Landes) and Steve Sutter (Sutter; hereinafter collectively plaintiffs) are the plaintiffs in this action in which they seek damages and declaratory and injunctive relief. They oppose the petition.
Defendants attack the trial court's rejection of their assertion of a challenge to Judge Kakita under Code of Civil Procedure section 170.6 (section 170.6) as untimely even though it was made within the 10-day period permitted by the court's local trial court delay reduction rules. The novel question with which we are presented is whether such local rules control the timing of judicial challenges over the provisions of section 170.6, as construed by recent appellate decisions. We conclude that they do and that defendants had 10 days in which to assert a section 170.6 challenge. We further conclude that such right was not lost by participation during said 10-day period in an ex parte hearing to oppose an application for a temporary restraining order. We therefore issue the writ.
FACTUAL AND PROCEDURAL BACKGROUND
The defendant Union represents certain employees in the construction industry and the defendant Lanham is its business agent. The plaintiff Herzog is a construction contractor for the Long Beach-Los Angeles Rail Transit Project (RTP) and the plaintiffs Landes and Sutter are two of its employees. On October 7, 1988, plaintiffs filed this action against
Shortly before noon on October 6, 1988, counsel for plaintiffs informed defendants' counsel by telephone that plaintiffs would, on the next day, apply for a temporary restraining order (TRO) to enjoin defendants' interference at the RTP job site. At the time the case was filed on October 7, 1988, in the Central District of the Los Angeles Superior Court, it was given an odd file number. This caused it to be immediately assigned to a particular judge in that court's statutory delay reduction pilot project (project) which had been established in 1987 in accordance with the mandate of the Trial Court Delay Reduction Act of 1986 (Gov. Code, §§ 68600-68619; hereinafter the Act).
The project was implemented by the Trial Court Delay Reduction Rules (Ch. 11, Local Rules of the Los Angeles County Superior Court hereinafter the Local Rules) which had been adopted by a majority of the Superior Court judges in accordance with Government Code section 68612. The Local Rules went into effect on October 15, 1987.
Upon filing, this case was assigned to Judge Kakita and it was to him that plaintiffs' application for a TRO was sent for hearing. Counsel for defendants, alerted by telephone the previous day as to the anticipated time of the TRO hearing, was present at the courthouse when these events took place and there received for the first time plaintiffs' pleadings and moving papers. Defendants' counsel had 30 to 40 minutes to consider these documents before the TRO hearing was held by Judge Kakita. That hearing lasted approximately 30 minutes. At its conclusion the court issued the requested TRO and set October 19, 1988, as the date for hearing on an order to show cause (OSC) as to why a preliminary injunction should not be issued.
On October 13, 1988, the date set by the court for the filing of opposition to the OSC, defendants filed, in addition to their opposition papers, a
Defendants sought a writ of prohibition from this court. On November 2, 1988, we issued an alternative writ and an order staying the hearing on the preliminary injunction, but directing that the TRO remain in effect. We also requested counsel to present the court with further arguments relating specifically to the application of Local Rule 1104.1 and our recent decision
The critical question which we are asked to resolve is whether defendants' assertion of a challenge to Judge Kakita under section 170.6 was timely. The answer to that depends on our resolution of two issues: (1) Were defendants required by the terms of section 170.6, subdivision (2), to assert the challenge immediately upon learning of Judge's Kakita's identity or were they allowed 10 days to make such challenge as provided in Local Rule 1104.1;
(2) If Local Rule 1104.1 controls, did defendants waive the 10-day period provided for in that rule by not asserting the challenge before the TRO was heard by the trial court.
Defendants rely upon Local Rule 1104.1 and argue that they had 10 days from October 7, 1988, the date they appeared in the action by opposing the application for the TRO, in which to assert a challenge to the assigned
1. The Local Trial Court Delay Reduction Rules Prevail Over the Provisions of Section 170.6, Subdivision (2), as to the Time During Which a Challenge May Be Asserted in Project Cases
This brief 10-day period is particularly important to a defendant who first appears in an action, as did the defendants here, by responding on short (24-hour) notice to an ex parte application for a temporary restraining order. Defendants, aware that the case had been assigned under the project to a particular judge, were charged with knowledge of the duly adopted Local Rules. (Beverly Union Co. v. Superior Court (1988) 206 Cal.App.3d 40, 43 [253 Cal.Rptr. 359]; Brekhus & Williams v. Parker-Rhodes (1988) 198 Cal.App.3d 788, 791 [244 Cal.Rptr. 48].) That knowledge would necessarily include, and induce reliance upon, the provisions of Local Rule 1104.1
Under the provisions of section 170.6, subdivision (2), there are two separate time limitations relevant to the issues of this proceeding. "Generally, a motion [asserting a judicial challenge] is permitted any time before the beginning of a trial or a hearing. [Citation.] There are two express statutory exceptions to the general rule set forth in section 170.6, subdivision (2)...." (Waldon v. Superior Court (1987) 196 Cal.App.3d 809, 814 [241 Cal.Rptr. 123].) The first is the 10-day — 5-day rule. It provides that where the judge "who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing," the motion to challenge shall be made at least five days before that date.
There is no specific provision in section 170.6 about assignments to a judge for "all purposes." However, section 170.6, subdivision (2), does provide that "In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be."
There have been three decisions which have sought to describe the rule which should apply when an all-purpose assignment has been made. In Zdonek v. Superior Court (1974) 38 Cal.App.3d 849 [113 Cal.Rptr. 669], division 4 of this district concluded that an assignment for all purposes, including a future rather than immediate trial, was not a master calendar assignment requiring prompt assertion of a section 170.6 challenge. Instead, the 10-day — 5-day rule applied.
Augustyn was followed by Woodman v. Superior Court, supra, 196 Cal.App.3d 407, where the same panel which had decided Zdonek concluded that its earlier decision was incorrect. In Woodman, a criminal case, the People sought to assert a challenge against the trial judge, who had been assigned for all purposes, including trial, nearly a year earlier. The court rejected its prior opinion in Zdonek as "wrongly decided" and concluded that the master calendar rule, requiring the immediate assertion of the challenge upon learning of the assignment of the trial judge, was the proper rule. The court stated, "An all-purpose assignment clearly contemplates assignment to a specific judge to process the litigation in its totality rather than a trial department in which the identity of the judge is subject to the vagaries of personal and administrative necessity. The purpose of such assignment is to permit the efficient disposition of complex matters and this commendable purpose would be utterly frustrated unless there is certainty that once assigned, the all-purpose judge will preside over the action from beginning to end. The purpose of the disqualification statute is, after all, to promote fair and impartial trials, not to serve as a device by which one party or the other can inordinately delay or otherwise frustrate the judicial proceedings. (Garcia v. Superior Court (1984) 156 Cal.App.3d 670, 677 [203 Cal.Rptr. 290].)" (Id., at p. 421.)
Thus, broad authority was necessarily given to the project trial courts by the Act to fashion rules appropriate to carrying out the Act's basic and fundamental purposes. The authority given to the Judicial Council to adopt standards for the timely disposition of cases (Gov. Code, § 68603)
Initially, Government Code section 68612 expressly authorized deviation only from the rules of court, but said nothing about the consequences of any conflict with a statute. However, the urgent nature of the problem which the Act sought to address,
In an amendment to Government Code section 68612,
We therefore hold that a project rule, duly adopted under the mandate of Government Code section 68612, and not expressly prohibited thereby, which either imposes a procedural requirement not authorized by statute or shortens the time specified by statute for performance of an act, will control, to the extent reasonably necessary to carry out and further the provisions and goals of the Act, in those cases to which the project rules apply. Thus, the provisions of Local Rule 1104.1, which impose the procedural requirement that a challenge under section 170.6 against a project judge must be made within a fixed period of 10 days following a defendant's appearance in the action, apply in this case. The rule endorsed by Augustyn and Woodman imposing the master calendar rule on all-purpose assignments, thereby requiring an immediate assertion of a challenge, will not apply in project cases where, as here, duly adopted project rules expressly provide otherwise.
Therefore, defendants' exercise of a section 170.6 challenge against Judge Kakita, by the filing of a proper motion on October 13, 1988, was timely under Local Rule 1104.1, unless they had lost the right to assert that challenge by their participation in the ex parte TRO hearing.
2. Defendants' Participation in the TRO Does Not Bar the Assertion of an Otherwise Timely Challenge Under Section 176.6
"As stated in Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430 [48 Cal.Rptr. 832], it is `crystal clear' that a motion to disqualify a judge can be made after any hearing or proceeding which does not involve a contested fact issue. In order to act as a bar to the motion to disqualify, the judge must have actually resolved conflict in factual contentions relating to the merits. (Id., at pp. 430-431.)" (Landmark Holding Group, Inc. v. Superior Court, supra, 193 Cal.App.3d 525, 527.)
In Landmark, we concluded that an ex parte hearing concerning a TRO did not involve the determination of a contested fact issue so as to constitute a bar (pursuant to § 170.6, subd. (2)) to an otherwise timely exercise of a challenge to an assigned judge. We said there, "The ex parte hearing concerning a TRO is no more than a review of the conflicting contentions to determine whether there is a sufficiency of evidence to support the issuance
"A TRO is purely transitory in nature and terminates automatically when a preliminary injunction is issued or denied. (Houser v. Superior Court (1932) 121 Cal.App. 31, 33 [8 P.2d 483].) No final determination of a contested fact issue is made during the ex parte proceeding. A disposition of an incidental matter not affecting the merits of the case cannot act as a bar to the statutory right provided by section 170.6. We therefore conclude a peremptory challenge under section 170.6 is timely when filed subsequent to an ex parte proceeding concerning a TRO and prior to the hearing on a preliminary injunction, where, as here, said challenge is filed in accord with the statutory time periods set forth in section 170.6, subdivision (2)." (Landmark Holding Group, Inc. v. Superior Court, supra, 193 Cal.App.3d 525, 529.)
Landmark is dispositive of the issue raised here by the plaintiffs. We perceive no essential difference between the facts here and those in Landmark. Plaintiffs' contention that the TRO issued here by Judge Kakita was a change rather than a maintenance of the status quo misses the point and, at most, simply highlights a distinction without a difference.
The petition for a writ of prohibition is granted.
Klein, P.J., and Arabian, J., concurred.
"(2) Any party to or any attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge, court commissioner, or referee before whom such action or proceeding is pending or to whom it is assigned is prejudiced against any such party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge, court commissioner, or referee. Where the judge, court commissioner, or referee assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.... If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than the commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be. 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." (Italics added.)
"I recall that this matter was here earlier on a temporary restraining order which the court sat and heard oral argument on.
"As a result of the — I was about to look at these documents last night and I noticed the 170.6 and said, `Hey, you know, it's going to be out of this courtroom.' Now I see there's opposition to it.
"This case has not been worked up yet and so the court is not prepared to go forward with regard to the — the motion for preliminary injunction today but I'm willing to entertain the 170.6 arguments on it."
"(b) The Judicial Council may adopt the standards of timely disposition adopted by the National Conference of State Trial Judges and the American Bar Association or may adopt different standards, but in the latter event shall specify reasons for approval of any standard which permits greater elapsed time for the resolution of litigation than that provided in the standards of the National Conference of State Trial Judges."
"In operation of an exemplary delay reduction program, the judges of the program shall, consistent with the policies of this article: (a) Actively monitor, supervise and control the movement of all cases assigned to the program from the time of filing of the first document invoking court jurisdiction through final disposition.
"(b) Seek to meet the standards for timely disposition adopted pursuant to Section 68603.
"(c) Establish procedures for early identification of cases within the program which may be protracted and for giving such cases special administrative and judicial attention as appropriate, including special assignment.
"(d) Establish procedures for early identification and timely and appropriate handling of cases within the program which may be amenable to settlement or other alternative disposition techniques.
"(e) Adopt a trial setting policy which, to the maximum extent possible, schedules a trial date within the time standards adopted pursuant to Section 68603 and which schedules a sufficient number of cases to ensure efficient use of judicial time while minimizing resetting caused by overscheduling.
"(f) Commence trials on the date scheduled.
"(g) Adopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation."
Prior to its amendment in 1988, section 68612 provided: "The judges selected in each county as judges of an exemplary delay reduction program shall, in consultation with the bar of the county to the maximum extent feasible, develop, and publish the procedures, standards, and policies which will be used in the program, including time standards for the conclusion of all critical steps in the litigation process, including discovery, and shall meet on a regular basis with the bar of the county in order to explain and publicize the program and the procedures, standards, and policies which shall govern cases assigned to the program. Such procedures, standards, and policies may be inconsistent with the California Rules of Court. In its discretion, the Judicial Council may assist in the development of, or may develop and adopt, any or all of such procedures, standards, or policies on a statewide basis."
"The primary goal of [Assem. Bill No. 3830] is to clarify the intent of [the Act].... Some local rules adopted in furtherance of this program have been challenged as contrary to statutory prescription.... [¶] The author of [Assem. Bill No. 3830] would argue that local discretion in adopting rules to shorten time and adjust procedure is absolutely essential to the success of the program. It should be noted that local judges are not without constraint in this regard, even though the point of the program is judicial case management. Rules may be adopted only in consultation with the local Bar, and the Judicial Council serves as a monitor of performance. [¶] Clarifying the propriety of local rules adopted to reduce delay is consistent with the original legislative intent that innovative approaches be pursued by the local judiciary to act expeditiously." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3830 (1987-1988 Reg. Sess.) as amended May 18, 1988.)
"[Assem. Bill No. 3830] will have the effect of ratifying these local rules [adopted pursuant to the Act] and reaffirming the Legislature's original intent, namely, that cases shall be litigated expeditiously. [¶] The author [of Assem. Bill No. 3830] argues that the value of [the Act] will be greatly reduced if the participating courts do not have the authority to shorten time and require additional procedures." (Assem. Office of Research, 3d reading analysis of Assem. Bill No. 3830 (1987-1988 Reg. Sess.).)