LEWIS v. SUPERIOR COURT

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Docket Number

Docket No. B030538.

Attorney(S)

COUNSEL Garrett J. Zelen for Petitioner. De Witt W. Clinton, County Counsel, and Frederick R. Bennett, Assistant County Counsel, for Respondent. No appearance for Real Party in Interest.

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Smart Summary

Factual and Procedural Background

Petitioner Henry Steven Lewis, charged with felony offenses, filed a declaration on September 2, 1987, seeking to disqualify Judge John H. Major on grounds of bias or prejudice against petitioner or his counsel pursuant to Code of Civil Procedure sections 170.1 and 170.3(c)(1). No action was taken by Judge Major on the statement of disqualification within 10 days. On October 9, 1987, at a hearing on a pretrial motion, Judge Major ordered the statement of disqualification stricken for failure to disclose legal grounds for disqualification. Petitioner contended that Judge Major was deemed to have consented to disqualification by failing to file an answer within the statutory 10-day period and thus could not participate further in the case. The court considered this contention and issued a writ directing the appointment of a replacement judge.

Legal Issues Presented

Whether a judge who fails to file a consent or verified answer within 10 days after the filing of a statement of disqualification is deemed to have consented to disqualification under Code of Civil Procedure section 170.3(c)(4).
Whether a judge who fails to timely respond to a statement of disqualification may nonetheless strike the statement as legally insufficient under section 170.4(b).
Whether the challenged judge may pass upon the sufficiency of the statement of disqualification or his own disqualification under section 170.3(c)(5).

Arguments of the Parties

Petitioner’s Arguments

Judge Major’s failure to file a consent or verified answer within 10 days after the statement of disqualification was filed results in deemed consent to disqualification under section 170.3(c)(4).
Accordingly, Judge Major is disqualified and cannot participate further in the case.

Respondent’s Arguments

Despite section 170.3(c)(4), Judge Major had the power under section 170.4(b) to strike the statement of disqualification if it disclosed no legal grounds, even after the 10-day period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171	Permitting issuance of a peremptory writ in the first instance when no factual dispute exists and parties have notice.	Supported the court’s decision to issue a peremptory writ without first issuing an alternative writ, as the legal issue presented was clear and undisputed.

Court's Reasoning and Analysis

The court analyzed the statutory scheme governing judicial disqualification under Code of Civil Procedure sections 170.1, 170.3, and 170.4. Section 170.3(c)(3) requires a challenged judge to file either a consent to disqualification or a verified answer within 10 days after the filing or service of the statement of disqualification. Failure to do so results in deemed consent to disqualification under section 170.3(c)(4), triggering the clerk’s duty to notify the presiding judge to appoint a replacement.

The respondent argued that section 170.4(b) authorized Judge Major to strike the statement of disqualification if it disclosed no legal grounds, even after the 10-day period had passed. The court rejected this interpretation, holding that the exception in section 170.4(b) applies only to the limitation in section 170.3(c)(5), which prohibits a judge from ruling on his or her own disqualification or the sufficiency of the statement. It does not provide an exception to the automatic disqualification triggered by failure to timely respond.

Accordingly, although a judge has the power to strike a statement of disqualification for legal insufficiency, that power must be exercised within the 10-day period prescribed by section 170.3(c)(3). Judge Major’s failure to do so resulted in automatic disqualification, and he was without power to act further in the case.

Holding and Implications

Holding: The court held that Judge John H. Major was deemed to have consented to disqualification by failing to file a timely answer within 10 days, and thus was disqualified from further participation in the case. The court issued a writ of mandate directing the Los Angeles County Superior Court to appoint a replacement judge.

Implications: This decision enforces the strict procedural deadlines for judicial disqualification under California law and clarifies that a judge’s power to strike a statement of disqualification for insufficiency is limited to the statutory response period. The ruling ensures that the automatic disqualification mechanism functions as intended to prevent a judge from presiding over a case after failing to timely respond to a disqualification claim. No new legal precedent beyond this statutory interpretation was established.

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HENRY STEVEN LEWIS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

OPINION THE COURT.

Before Lillie, P.J., Thompson, J., and Johnson, J.

On September 2, 1987, counsel for petitioner, who is charged with felony offenses, filed a declaration seeking to disqualify Judge John H. Major on the ground of bias or prejudice against petitioner or his counsel. (Code Civ. Proc., §§ 170.1, 170.3, subd. (c)(1).) On October 9, 1987, no action having been taken by Judge Major on the statement of disqualification, the parties appeared for a hearing on a pretrial motion filed by petitioner. At the outset of the proceedings Judge Major ordered the statement of disqualification stricken on the ground it disclosed no legal grounds for disqualification. (§ 170.4, subd. (b).) (1) In the instant proceeding, petitioner contends Judge Major is deemed to have consented to his disqualification by failing to file an answer within 10 days after the filing of the statement, hence he may not further participate in the proceeding. For reasons that follow, we find petitioner's contention meritorious and will direct that further proceedings be heard before a trial judge other than Judge Major.

All further references are to the Code of Civil Procedure.

DISCUSSION

Subdivision (c) of section 170.3 provides in relevant part as follows: "(3) Within 10 days after the filing or service [of a statement of disqualification], whichever is later, the judge may file a consent to disqualification . . . or . . . a written verified answer admitting or denying any or all of the allegations contained in the party's statement and setting forth any additional facts material or relevant to the question of disqualification. . . .

"(4) A judge who fails to file a consent or answer within the time allowed shall be deemed to have consented to his or her disqualification and the clerk shall notify the presiding judge or person authorized to appoint a replacement of the recusal. . ..

"(5) No judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party. In every such case, the question of disqualification shall be heard and determined by another judge. . . ." (Italics added.)

It thus becomes clear that, having failed to file an answer to the statement of disqualification, as of October 9 Judge Major was deemed to have consented to his disqualification and the clerk had the duty to notify the presiding judge to appoint a replacement of the recusal. (§ 170.3, subd. (c)(4).) The respondent urges however that despite the clear language of section 170.3, subdivision (c)(4), Judge Major had the power on October 9 to strike petitioner's statement for insufficiency. In support of this contention the respondent cites subdivision (b) of section 170.4, which provides: "Notwithstanding paragraph (5) of subdivision (c) of Section 170.3, if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken."

We do not construe the foregoing provision as providing an exception to the automatic disqualification of a judge who fails to file an answer within 10 days as required by paragraphs (3) and (4) of section 170.3, subdivision (c). By its own terms, the provision provides an exception only to paragraph (5) of subdivision (c), which precludes a challenged judge from passing upon "his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party."

We therefore hold that although a challenged judge has the power to order a statement of disqualification stricken as legally insufficient, such power must be exercised within the time limits imposed by section 170.3, subdivision (c)(3). Having failed to do so, Judge Major was disqualified and has no power to act in this case.

(2) The issue presented in this proceeding is one of law, and we see no purpose to be served by issuing an alternative writ. The parties have received due notice from this court that the issuance of a peremptory writ in the first instance is being considered, and under such circumstances the issuance of a peremptory writ in the first instance is proper. (§ 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179 [203 Cal.Rptr. 626, 681 P.2d 893].)

DISPOSITION

Let a writ of mandate issue directing the respondent Los Angeles County Superior Court to appoint a replacement of Judge John H. Major in case number A708196. (See § 170.3, subd. (c)(4).)

Good reason appearing, this decision shall be deemed final as to this court five (5) days from the date hereof. (Cal. Rules of Court, rule 24(c).) The stay of proceedings heretofore imposed shall be dissolved upon the finality of this decision.