RAPHAEL J.

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for extraordinary writ. No. FLIN2101287 Susanne S. Cho, Judge. Petition granted.

Westover Law Group and Andrew L. Westover, for Petitioner.

No appearance for Respondent.

Rimon P.C, Jennifer A. Duffy, Claire K. Mitchell, and Gabriel G. Gregg for Real Party in Interest.

OPINION

RAPHAEL J.

In this marital dissolution proceeding, petitioner Robert Taylor unsuccessfully moved to disqualify the judge assigned to the case. He then petitioned for a writ of mandate, arguing that the motion should have been granted. We issued an order to show cause and now grant the petition.

I. BACKGROUND

Taylor filed this action for dissolution from real party in interest Gerald Smith in May 2021. The case was assigned to Commissioner Mickie Reed in Department 2J. A notice of case assignment stated that Commissioner Reed had been appointed as a temporary judge under court authority. Trial was set to begin in July 2023 before Commissioner Reed.

At a June 2023 hearing, Commissioner Reed continued the trial date to that November in Department 2E before Judge Susanne Cho.

On October 4, 2023, Taylor filed an "Objection to Temporary Judge" that requested "reassignment of the case to a Superior Court Judge for all matters." That same day, the court issued a "Notice of Case Reassignment For All Purposes" that stated: "You are hereby notified that the above-entitled case has been reassigned to the Honorable Susanne Cho in Department 2E for all purposes."

The next day, October 5, Taylor moved to disqualify Judge Cho under section 170.6. Judge Cho denied the motion as untimely: "[o]n June 7, 2023, Commissioner Reed told both counsel that the case will be tried in [Department] 2E and was scheduled for trial in [Department] 2E."

II. DISCUSSION

Section 170.6 "provides for the disqualification of trial judges on motion supported by an affidavit of prejudice." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 186.) Subdivision (2) of that section contains several rules about when such a disqualification motion must be brought, depending on the situation. The only rule relevant here is sometimes called the all purpose assignment rule: if a disqualification motion is "directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance." (§ 170.6, subd. (2).)

Applying the all purpose assignment rule here, Taylor's motion was timely. He moved to disqualify Judge Cho one day after notice that the case had been reassigned to Judge Cho for all purposes. It was therefore "made to the assigned judge . . . within 15 days after notice of the all purpose assignment." (§ 170.6, subd. (2).)

Judge Cho reached a different conclusion, reasoning that "[o]n June 7, 2023, Commissioner Reed told both counsel that the case will be tried in [Department] 2E and was scheduled for trial in [Department] 2E." Judge Cho thus construed the June assignment as a reassignment for all purposes.

For two reasons, one formal and one functional, we conclude the case had been assigned to her in June only for trial. The formal reason is the timing of the case reassignment notice. If the case had been reassigned to Judge Cho for all purposes in June, then the notice of reassignment would have been issued then, rather than the day Taylor sought "reassignment of the case to a Superior Court Judge for all matters."

The functional reason is that a substantial matter remained before Commissioner Reed even after she set trial dates in Judge Cho's department. This requires a bit more explanation. In Lavi, our Supreme Court rejected the notion that for the all purpose assignment rule to apply "a single judge must handle every matter in a given case." (Lavi, supra, 4 Cal.4th at p. 1180, fn. 13.) "Rather, if, at the time of the assignment, substantial matters remain to be processed in addition to trial, and the assigned judge is expected to process all those matters from that point on (thus allowing him or her [to] acquire expertise in, and familiarity with, the intricacies of the case), then the all purpose assignment rule may apply." (Ibid., first italics added.) Therefore, under Lavi, Judge Cho would have been assigned to the case for all purposes in June so long as she processed all substantial matters from that moment on. But Commissioner Reed kept a substantial matter in her own department.

At the June hearing, after continuing the trial date, Commissioner Reed decided that a separate hearing originally set to be argued before her in July would be continued to August in her department. Neither Taylor's writ petition nor Smith's opposition/response describe what that hearing concerned other than that it involved setting aside a stipulation. However, they both agree it involved a significant issue. Taylor stated at the hearing that the issue would "drive the remainder of the case," and Smith's response to the writ petition states that the set-aside request was "a critical issue in the case that must be resolved before the case can be settled or tried." The parties' agreement that a substantial issue remained open in June, along with Commissioner Reed's decision to hear it even after assigning trial dates in Judge Cho's department, further shows that Judge Cho was not assigned the case for all purposes in June. The combination of the formal and functional reasons here means we need not decide whether one would be sufficient here without the other.

In June, Judge Cho would have had no reason to know about the case reassignment notice or Commissioner Reed keeping a substantial matter in her own department. However, neither of these considerations affects the outcome. We find Taylor's disqualification motion was timely under the all purpose assignment rule.

Smith, who does not dispute Taylor's motion was timely under the all purpose assignment rule, argues the motion was correctly denied on two other grounds.

Smith first argues we should construe Taylor's objection to Commissioner Reed as a disqualification motion such that the motion to disqualify Judge Cho was an unauthorized second motion. (See § 170.6, subd. (4) [subject to exceptions not applicable here, "no party or attorney shall be permitted to make more than one such [disqualification] motion in any one action or special proceeding pursuant to this section"].) It was not. Taylor's objection to Commissioner Reed was based solely on a claim that he had a constitutional right to have the case assigned to a "Superior Court Judge" and did not claim Commissioner Reed was prejudiced in any way. A disqualification motion under section 170.6 not only requires an allegation of prejudice, but a sworn declaration to that effect. (See § 170.6, subd. (2).) Taylor's objection to Commissioner Reed had neither of these attributes. The objection should not be treated as anything other than what it was.

Smith's remaining argument is based on one of the other provisions in section 170.6, subdivision (2). Sometimes called the one-judge court deadline, the provision states that "[i]f the court in which the action is pending is authorized to have no more than one judge, and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion." According to Smith, Commissioner Reed and Judge Cho are the only two judicial officers assigned to family law matters at the Larson Justice Center in Indio, and Taylor's successive challenges make the one-judge court deadline rule applicable. We disagree. Whether or not Commissioner Reed and Judge Cho are the only judicial officers handling family law matters in Indio does not matter. It would not even make a difference if Judge Cho were the only judicial officer there handling any matter.

In Jones v. Superior Court (2016) 246 Cal.App.4th 390 (Jones), the Court of Appeal stated, "Government Code section 69590.7 provides that '[i]n the County of Nevada there are six judges of the superior court.' Because there are six authorized judges in the Nevada County Superior Court, the one-judge-court deadline . . . does not apply." (Id. at p. 400.) Jones thus rejected the notion that "a multi-branch court can be subject to the one-judge-court deadline when a case is filed in a branch with only one assigned judge." (Ibid.) Here, because Government Code section 69592 states that "[i]n the County of Riverside there are 53 judges of the superior court," the one-judge-court deadline does not apply here either.

Smith next argues that Taylor's writ petition is itself untimely, but we are unpersuaded by this as well. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification." (§ 170.3, subd. (d).) There is nothing in the exhibits filed by Taylor or Smith indicating when written notice of entry of Judge Cho's denial was served. Smith thus fails to demonstrate that the writ petition is untimely. Smith misplaces reliance on cases applying a version of section 170.3, subdivision (d) before it was amended effective January 1, 2007 to require "service" of "written" notice. (See People v. Barrera (1999) 70 Cal.App.4th 541, 552 ["we deem the discussion concerning the basis for the commissioner's disqualification and the decision by appellant, his counsel and the prosecutor to waive such disqualification to be the 'notice to the parties of the decision'"]; Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1163 ["we conclude that a formal written notice of the order is unnecessary to trigger the time limitations under section 170.3, subdivision (d)"]; Stats. 2006, ch. 567, § 4.)

Finally, Smith claims Taylor "only filed [the petition] to create further delay." Since we find the petition meritorious, we reject the notion it was filed "only" for delay.

"Because the trial court exercises no discretion when considering a section 170.6 motion, it is 'appropriate to review a decision granting or denying [such a motion] as an error of law.'" (Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987-988.) Judge Cho wrongfully denied Taylor's disqualification motion. We therefore grant the writ petition and order the trial court to grant the motion.

III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its order denying petitioner's disqualification motion as to Judge Cho and to enter a new order granting disqualification and assigning another judge to this case. The temporary stay order is dissolved. Petitioner to recover the costs of this petition.

We concur: MILLER Acting P. J. FIELDS J.