IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION THREE. Petitioner,) vs. ) Respondent,) Real Party in Interest.

Transcription

1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION THREE PEOPLE OF THE STATE OF CALIFORNIA, ) ) Petitioner,) ) vs. ) ) THE SUPERIOR COURT OF THE STATE ) OF CALIFORNIA FOR THE ) COUNTY OF ORANGE, ) ) Respondent,) ) ) RITO TEJEDA, ) ) Real Party in Interest.) ) Case No.: G (OC Superior Court Case No. 14ZF0338) [Related Case Nos. G052931, G052933, G082935, and G052936] PETITIONER S REPLY DIRECTED TO THE SUPERIOR COURT OF ORANGE COUNTY THE HONORABLE RICHARD M. KING, JUDGE PRESIDING DEPARTMENT C-5 [(657) ] TONY RACKAUCKAS, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA BY: BRIAN F. FITZPATRICK SENIOR DEPUTY DISTRICT ATTORNEY brian.fitzpatrick@da.ocgov.com STATE BAR NO POST OFFICE BOX 808 SANTA ANA, CALIFORNIA TELEPHONE: (714) FAX: (714) Attorneys for Petitioner

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION STANDARD OF REVIEW ARGUMENT A. A JUDGE MUST ACCEPT AN AFFIDAVIT THAT SUBSTANTIALLY CONFORMS TO CODE OF CIVIL PROCEDURE SECTION S EXEMPLAR AND IMMEDIATELY REASSIGN THE MATTER WITHOUT ANY FURTHER ACT OR HEARING Code Of Civil Procedure Section s Plain Language Shows A Judge Must Accept A Conforming Affidavit And Reassign The Matter Without Further Act Or Proof The Legislature Did Not Give Judges Any Discretion To Deny Or Further Inquire Into A Conforming Affidavit Courts Consistently Interpret Code Of Civil Procedure Section s Plain Language To Require That Judges Accept Conforming Affidavits Without Further Inquiry This Court Should Not Judicially Rewrite Code of Civil Procedure Section A Judge Must Follow Code of Civil Procedure Section s Plain Language Even When The Judge Suspects Abuse B. CODE OF CIVIL PROCEDURE SECTION DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE IN ANY HYPOTHETICAL APPLICATION INCLUDING A SUSPECTED BLANKET CHALLENGE CONCLUSION CERTIFICATE OF WORD COUNT PROOF OF SERVICE [END] i

3 TABLE OF AUTHORITIES CASES Avalos v. Welty (1965) 237 Cal.App.2d California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d Casden v. Superior Court (2006) 140 Cal.App.4th Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th Estate of Horman (1971) 5 Cal.3d Fry v. Superior Court (2013) 222 Cal.App.4th Goldner v. Spencer (1912) 163 Cal Hemingway v. Superior Court (2004) 122 Cal.App.4th , 14 In re Estate of Bernard (1962) 206 Cal.App.2d Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th , 13 Johnson v. Superior Court (1958) 50 Cal.2d , 22, 26, Joshua D. v. Superior Court (2007) 157 Cal.App.4th Journey v. Superior Court (1975) 47 Cal.App.3d La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d ii

4 McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d , 16, 17 McClenny v. Superior Court of Los Angeles (1964) 60 Cal.2d Mezzetti v. Superior Court (1979) 94 Cal.App.3d Moreira v. Superior Court (1989) 215 Cal.App.3d , 23 Nolan v. City of Anaheim (2004) 33 Cal.4th Nutragenetics, LLC v. Superior Court (2009) 179 Cal.App.4th , 28, 29 Oak Grove School Dist. Of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d Pappa v. Superior Court of Los Angeles (1960) 54 Cal.2d , 12 People v. Franz (2001) 88 Cal.App.4th People v. Rodgers (1975) 47 Cal.App.3d People v. Superior Court (Jimenez) (2002) 28 Cal.4th People v. Superior Court (Willliams) (1992) 8 Cal.App.4th , 13, 25, 29 People v. Whitfield (1986) 183 Cal.App.3d Peracchi v. Superior Court (2003) 30 Cal.4th Robertson v. Perkins (1889) 129 U.S. 233 [32 L.Ed. 686, 9 S.Ct. 279] iii

5 Rodriguez v. Superior Court (1993) 14 Cal.App.4th Solberg v. Superior Court (1977) 19 Cal.3d , 15, 17-20, 22-24, 26-28, 30, 31 Stephens v. Superior Court (2002) 96 Cal.App.4th Stone v. Los Angeles County Flood Control Dist. (1947) 81 Cal.App.2d Swift v. Superior Court (2009) 172 Cal.App.4th , 13 Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th , 9, 13, 14 Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d Wells v. One2One Learning Foundation (2006) 39 Cal.4th Ziesmer v. Superior Court (2003) 107 Cal.App.4th STATUTES Code of Civil Procedure section , 26 Code of Civil Procedure section , 26 Code of Civil Procedure section passim Code of Civil Procedure section 170.6, subdivision (a)(4) , 10 Code of Civil Procedure section 170.6, subdivision (a)(6) Code of Civil Procedure section iv

6 OTHER AUTHORITIES Ballentine s Legal Dictionary and Thesaurus (1995) Office of the Attorney General, Inter-Departmental Communication, Senate Bill No. 829 (1957 Reg. Sess.) June 3, v

7 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION THREE PEOPLE OF THE STATE OF CALIFORNIA, ) ) Petitioner,) ) vs. ) ) THE SUPERIOR COURT OF THE STATE ) OF CALIFORNIA FOR THE COUNTY ) OF ORANGE, ) ) Respondent,) ) ) RITO TEJEDA, ) ) Real Party in Interest.) ) Case No.: G (OC Superior Court Case No. 14ZF0338) [Related Case Nos. G052931, G052933, G082935, and G052936] TO THE HONORABLE KATHLEEN O LEARY, PRESIDING JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION THREE: INTRODUCTION The peremptory challenge in section guarantees a litigant an extraordinary right to disqualify a judge. When the litigant timely files an affidavit declaring the judge is prejudiced, the judge must reassign the case without any further act or proof. There is no discretion to refuse the affidavit or subject it to further judicial determination. Respondent and real party would turn section on its head. They want to rewrite the statute and give judges the ability to summarily deny a conforming affidavit when the judge doubts the affiant s veracity. They cite language that the statute requires a good faith belief the judge is prejudiced, 1

8 which they claim permits the judge to deny the affidavit when he believes it was filed in bad faith. In this case, they claim the judge had discretion to deny the attorney s conforming affidavit because he suspected it was filed pursuant to a blanket challenge, which he claims disrupted court operations. Respondent and real party s position makes no sense. Under their position, a judge can summarily deny any affidavit, filed by any attorney, in any case, when the judge suspects an ulterior motive. Neither respondent, nor real party, however, says how much suspicion the judge must have before he can unilaterally deny the affidavit. That determination would apparently be made on a case-by-case basis. Litigants would have no idea whether the judge would accept or reject the affidavit filed in a particular case. This is not what the Legislature intended. If the Legislature wanted to give judges discretion to deny conforming affidavits, the Legislature would have drafted provisions similar to the for cause challenge provisions in sections and In contrast to those provisions, section provides the form of the required affidavit and mandates disqualification upon the filing of a conforming affidavit regardless whether the judge suspects a blanket challenge or claims a disruption of court operations or harbors any other suspicion. The judge had no discretion to refuse the affidavit in this case. The People s petition should be granted. 2

9 STANDARD OF REVIEW While courts cite the abuse of discretion standard in reviewing peremptory challenges under Code of Civil Procedure section 170.6, 1 the proper standard of review in this case is the de novo standard of review. This is because [i]n deciding a section motion, the trial court has no discretion. (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363; Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 494; Swift v. Superior Court (2009) 172 Cal.App.4th 878, 882.) The court s order turns on the application of section to undisputed facts, i.e., whether the peremptory challenge was timely presented in the proper court and whether the supporting affidavit substantially complied with section 170.6, subdivision (a)(6). Under such circumstances, courts review a lower court s section decision under the nondeferential de novo standard of review. (Ziesmer v. Superior Court, supra, 107 Cal.App.4th 360, 363; Jane Doe 8015 v. Superior Court, supra, 148 Cal.App.4th 489, 494; Swift v. Superior Court, supra, 172 Cal.App.4th 878, 882.) 2 1 Further statutory references are to the Code of Civil Procedure unless otherwise noted. 2 The resolution of this case, however, does not turn on which standard of review applies because a trial court abuses its discretion when it erroneously denies a motion to disqualify a judge under section [Citations.] (Ziesmer v. Superior Court, supra, 107 Cal.App.4th 360, 363.) Moreover, respondent and real party s reliance on statements made in the lower court s order as substantial evidence is misguided. As discussed further in section B, below, statements in the lower court s order are not evidence. 3

10 ARGUMENT A. A JUDGE MUST ACCEPT AN AFFIDAVIT THAT SUBSTANTIALLY CONFORMS TO CODE OF CIVIL PROCEDURE SECTION S EXEMPLAR AND IMMEDIATELY REASSIGN THE MATTER WITHOUT ANY FURTHER ACT OR HEARING In its order to show cause, this Court posed two questions regarding section First, the Court asked whether a judge must accept a section affidavit where the judge has evidence a public agency has adopted a blanket challenge to the judge. Second, the Court asked whether the public agency would have a right to a hearing to show the affidavit was filed in good faith. Respondent and real party answer the Court s first question in the affirmative. They argue that, when the judge suspects a blanket challenge policy exists, the judge can refuse to accept an otherwise conforming section affidavit. Respondent and real party answer the Court s second question in the negative. They claim that, when a judge suspects a blanket challenge policy exists, the judge need not hold any evidentiary hearing to confirm or dispel the judge s suspicion. Respondent and real party are wrong. Their position is contrary to section s plain language and legislative intent. Their position is also contrary to established caselaw. Section s plain language and legislative intent and established caselaw show the Court s questions should both be answered in the negative. Regardless of a judge s suspicion, the judge has no discretion to refuse an affidavit that substantially conforms to the form 4

11 provided in the statute and must immediately reassign the matter without further act or proof. 1. Code Of Civil Procedure Section s Plain Language Shows A Judge Must Accept A Conforming Affidavit And Reassign The Matter Without Further Act Or Proof The Court s questions pose issues of statutory construction. 3 In construing a statute, the Court s objective is to ascertain and effectuate legislative intent. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) To determine legislative intent, the Court turns first to the words of the statute, giving them their usual and ordinary meaning. (Ibid.) If the words are not ambiguous, the Court presumes the Legislature meant what it said and the statute s plain meaning governs. (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) [T]he words the Legislature chooses are the best expression of its intent and [courts] are bound by their plain meaning. [Citation.]. (Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, 560.) provides: In our case, the pertinent language in Section is clear. It If the motion is duly presented, and the affidavit [] under penalty of perjury is duly filed... thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge,.... (Code Civ. Proc., 170.6, subd. (a)(4).) Section provides the substance and form of the required affidavit. (Code Civ. Proc., 170.6, subd. (a)(6).) 3 The proper interpretation of a statute and its application to undisputed facts are questions of law subject to this court s independent review. [Fn. omitted.] (Casden v. Superior Court (2006) 140 Cal.App.4th 417, 422.) 5

12 Thus, section s plain language states a judge must accept a section affidavit that substantially conforms to the required form, without any further act or proof,.... The Legislature provides no language or procedure to reject an otherwise conforming affidavit or further inquire into its substance. 4 In its questions, this Court noted that section requires the motion be duly presented and the affidavit be duly filed. (See Code Civ. Proc., 170.6, subd. (a)(4).) This language does not create any right to reject or inquire into the substance of an affidavit that substantially conforms to section s exemplar. The word duly means in a proper way, or regularly, or according to law. [Citations.] (Robertson v. Perkins (1889) 129 U.S. 233, 236 [32 L.Ed. 686, 9 S.Ct. 279].) Ballentine s Legal Dictionary and Thesaurus (1995) at page 201 states, [w]hen used before any word implying action, duly means that the act was done properly, regularly and according to law. In section 170.6, the word duly describes how the motion must be presented. The judge must ensure the motion is properly presented according to law. Section sets forth various requirements regarding 4 We note the one judicially-created exception permitting inquiry into the basis for a section affidavit where one party establishes a prima facie case that a section motion was based upon invidious discriminatory group bias. (People v. Superior Court (Willliams) (1992) 8 Cal.App.4th 688, 708.) No such claim is made in our case. In any event, the judicially-created exception was made on constitutional equal protection grounds, not statutory construction grounds. (Id. at pp ) 6

13 what must be presented, when it must be presented, and to whom it must be presented. (See Code Civ. Proc., 170.6, subd. (a)(1), (2), (3), (4), (6), and (7).) Thus, the word duly in this context provides that the judge must ensure the motion is timely filed, in the proper form and with the proper court. The word duly also describes how the affidavit must be filed. The judge must ensure the affidavit is properly filed according to law. Section requires that the affidavit shall be in substantially the form provided in the statute. (Code Civ. Proc., 170.6, subd. (a)(6).) Thus, the word duly in this context provides that the judge must ensure the affidavit substantially conforms to the required form. Where the affidavit is in the proper form, the judge shall assign the matter to another judge without any further act or proof. (Code Civ. Proc., 170.6, subd. (a)(4).) The Legislature emphasized the peremptory nature of a section challenge by stating a conforming affidavit must be accepted thereupon and without any further act or proof[.] (Code Civ. Proc., 170.6, subd. (a)(4).) The Legislature further emphasized this point by providing an exemplar affidavit that satisfies the statutory requirements. (Code Civ. Proc., 170.6, subd. (a)(6).) Construing the language duly presented and duly filed to permit a judge to reject or inquire into an affidavit that conforms to section s form would be contrary to the statute s plain language. Courts should construe 7

14 a statute to give effect to all its provisions so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another.... [Citations.] (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1269.) An interpretation that allows the judge to reject or hold a hearing concerning the substance of an otherwise conforming affidavit would render the language thereupon and without any further act or proof inoperative and insignificant. What further act would a judge consider other than reassigning the case to another judge after holding a hearing and determining the affidavit was filed in good faith? What further proof would the judge consider taking after holding such a hearing? Regardless of a judge s suspicion, section s plain language requires the judge to accept a conforming affidavit and immediately reassign the matter without any additional inquiry or hearing. intent. 2. The Legislature Did Not Give Judges Any Discretion To Deny Or Further Inquire Into A Conforming Affidavit Section s plain language is consistent with the statute s legislative The Senate Judiciary Committee Report explained the purpose of [section 170.6] in relevant part: The theory of the proposed law... is that one change of judges is warranted when a party or his attorney makes an affidavit in the form required. (Sen. Interim Com. on Judiciary ( ) Rep. (1957) p. 103) (Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 146, omission in original.) 8

15 [A] June 4, 1957, report on Senate Bill No. 829 (1957 Reg. Sess.) From the State of California Office of Legislative Counsel states that the bill [p]rovides that if [a] motion is presented and affidavit filed, the case shall be assigned to another judge. (Truck Ins. Exchange v. Superior Court, supra, 67 Cal.App.4th 142, 146, modifications in original.) An Inter-Departmental Communication from the Office of Attorney General to the Governor stated The bill provides for an automatic substitution of Judges upon the filing of an affidavit by either party stating that the judge is prejudiced or interested so that he believes he cannot have a fair and impartial trial. (Office of the Attorney General, Inter-Departmental Communication, Sen. Bill No. 829 (1957 Reg. Sess.) June 3, 1957, p. 1.) The Communication continued, [n]o requirement is specifically imposed upon the party filing the affidavit to include the facts upon which the claim is based. (Ibid.) The legislative history further confirms the absence of any judicial discretion to deny an attorney s conforming affidavit. Section represents [T]he culmination of many years effort by the organized bar of this state to obtain legislation which would permit the challenge of a judge for prejudice without an adjudication of disqualification. (Johnson v. Superior Court (1958) 50 Cal.2d 693, 696, italics added.) 9

16 Moreover, when the Legislature enacted section in 1957, the Legislature knew how to draft a disqualification provision that required judicial determination. Existing law already allowed a party to move for cause to disqualify a judge on the ground of bias, but the party had to allege and prove the facts relied upon to establish prejudice. (Pappa v. Superior Court of Los Angeles (1960) 54 Cal.2d 350, 354.) In that procedure, now contained in sections 170, 170.1, 170.2, and 170.3, the Legislature sets forth, among other things, the motion to be filed, the judge s right to file a written answer, and potential evidentiary proceedings to determine the merits of the challenge. This procedure governing a for cause challenge contrasts sharply with the absence of any further proceedings upon the filing of a conforming affidavit in a section peremptory challenge. (See Code Civ. Proc., 170.6, subd. (a)(4) [judge must reassign the case without any further act or proof,... ].) If the Legislature wanted to permit judicial rejection or further hearings concerning a timely filed conforming affidavit under section 170.6, the Legislature knew how to draft provisions governing such proceedings. The Legislature deliberately chose a peremptory challenge procedure in which the judge has no discretion to question the affiant s good faith. 10

17 Courts recognize the Legislature s important distinction between a for cause challenge in sections and and a peremptory challenge in section A for cause challenge requires the challenger to establish bias or prejudice to the satisfaction of a judge, but the allegation of bias in a peremptory challenge may not be contested and removal is automatic upon the filing of an affidavit of prejudice. (Oak Grove School Dist. Of Santa Clara County v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 703 [contrasting former 170, subd. (5), from which was derived, with 170.6]; Mezzetti v. Superior Court (1979) 94 Cal.App.3d 987, 990 [a for cause challenge may be contested by the judge; a section challenge is peremptory in nature and cannot be contested].) As one court observed, [i]t is apparent, then, that the Legislature has provided an integrated scheme for the disqualification of judges. (Mezzetti v. Superior Court, supra, 94 Cal.App.3d 987, 990.) A for cause challenge is subject to judicial determination; a peremptory challenge under section is not. 5 5 Respondent recognizes this distinction noting that permitting a hearing to test a section affidavit would essentially convert section into section (Respondent s informal response at p. 4.) Respondent fails to recognize that permitting judicial discretion to refuse an otherwise conforming affidavit under section would have the same effect. Contrary to law, it would subject section peremptory challenges to judicial determination. (See California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267, 271 [section affords a party the opportunity to file a no questions asked peremptory challenge of a judge ].) 11

18 3. Courts Consistently Interpret Code Of Civil Procedure Section s Plain Language To Require That Judges Accept Conforming Affidavits Without Further Inquiry The California Supreme Court consistently interprets section s plain language to mean a judge must accept, without any further inquiry, an affidavit that conforms to the exemplar in section 170.6, subdivision (a)(6) regardless of his or her belief concerning the affiant s motive. It is well recognized that in enacting [] section the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is automatic in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.] (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531, italics in original.) In fact, [O]nce an affidavit of prejudice has been filed under section 170.6, the court has no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the affidavit or its technical sufficiency under the statute. [Citations.] (Id. at pp ) Thus, when the affidavit is timely and properly made, immediate disqualification is mandatory. [Citation.]. (Id. at p. 532; see also Pappa v. Superior Court, supra, 54 Cal.2d 350, 353 [same]; McClenny v. Superior Court of Los Angeles (1964) 60 Cal.2d 677, 680 [same]; Solberg v. Superior Court (1977) 19 Cal.3d 182, 193 [same]; People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 806 [same]; Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1252 [same].) 12

19 The Court of Appeal consistently follows the Supreme Court. [T]he determination of a judge s disqualification [under section 170.6] is outside the usual law and motion procedural rules. (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 422.) Unlike the usual law and motion procedural rules, a [section 170.6] challenge is not subject to a judicial hearing in order to be granted; rather, it takes effect instantaneously. (Truck Ins. Exchange v. Superior Court, supra, 67 Cal.App.4th 142, 147.) If a peremptory challenge motion in proper form is timely filed under section 170.6, the court must accept it without further inquiry. [Citation.] (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59; People v. Whitfield (1986) 183 Cal.App.3d 299, [same]; Swift v. Superior Court, supra, 172 Cal.App.4th 878, 882 [same]; Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, [same]; Jane Doe 8015 v. Superior Court, supra, 148 Cal.App.4th 489, 494 [judge has no discretion to reject or inquire about party s motives where peremptory challenge is properly and timely made]; People v. Superior Court (Williams), supra, 8 Cal.App.4th 688, 699 [since affidavit was timely filed and in proper form, judge was bound to accept it without further inquiry]; Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212, 1223 [judge must accept section affidavit that satisfies requirements of the statute].) This Court agrees. In 2004, this Court took an opportunity to remind trial courts of section s basic rules. (Hemingway v. Superior Court (2004) 122 Cal.App.4th 1148, ) The Court stated the 13

20 [P]eremptory challenge under section is a substantial right and an important part of California s system of due process that promotes fair and impartial trials and confidence in the judiciary. [Citation.] (Hemmingway v. Superior Court, supra, 122 Cal.App.4th 1148, 1158.) The challenged judge [M]ust make an instant determination as to the validity of a properly made section peremptory challenge. If the motion is properly made, the disqualification takes effect instantaneously. (Id. at p. 1157, italics in original, citing Truck Ins. Exchange v. Superior Court, supra, 67 Cal.App.4th 142, 147 [ peremptory challenge is not subject to a judicial hearing in order to be granted;.... ].) The Court instructed lower courts to refrain from any tactic or maneuver that has the practical effect of diminishing the important right to exercise a peremptory challenge under section (Hemmingway v. Superior Court, supra, 122 Cal..App.4th 1148, 1158.) The lower court s practice in this case runs contrary to this Court s reminder. The attorney s affidavit was timely filed in the form required by section 170.6, subdivision (a)(6). Nonetheless, in chambers work and without any appearance by the parties, the lower court deprived the attorney of the substantial and important right to exercise a peremptory challenge. Rather than promote fair and impartial trials and confidence in the judiciary, the lower court s action promotes just the opposite. It undermines the Legislature s intent and frustrates section s purpose. 14

21 4. This Court Should Not Judicially Rewrite Code of Civil Procedure Section Respondent and real party want the Court to rewrite section and create an unprecedented exception where the judge suspects the affidavit was filed in bad faith pursuant to a blanket challenge. 6 As discussed above, their invitation is contrary to section s plain language. Section contains no exceptions and courts consistently hold to the statute s plain language. They refuse to judicially rewrite the statute. This Court and both respondent and real party cite language in Solberg where the court stated that a section peremptory challenge requires a good faith belief in the judge s prejudice on the part of the individual party or counsel.... (Italics in original.) (Solberg v. Superior Court, supra, 19 Cal.3d 182, 200, modifications in original, quoting McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d 512, 538, fn. 13.) Respondent and real party argue this requirement gives a judge discretion to deny an otherwise conforming affidavit where the judge suspects the affidavit was not filed in good faith. They argue: If the statute requires a good faith belief, then the judge must be able to reject an affidavit he or she believes is not based upon a good faith belief. Respondent and real party are mistaken. They misread both Solberg and McCartney, the case the Solberg court quoted. Their conclusion does not follow from the court s statement. Both Solberg 6 We reiterate that we do not concede the existence of any blanket challenge policy or that the section affidavit in this case or any other case was filed pursuant to a blanket challenge. Because the court had no discretion to refuse the affidavit in this case, however, it is unnecessary to resolve the lower court s unconfirmed belief. 15

22 and McCartney affirm section requires a judge to accept an affidavit that conforms to the statutory exemplar without any further inquiry or hearing. The statement quoted in Solberg originates from footnote 13 in McCartney. There, the court discussed the evidence supporting a public defender s blanket challenge against a judge. (McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d 512, 538, fn. 13.) The court stated that an affidavit filed solely in accordance with the blanket challenge policy would not be filed in good faith. (Ibid.) Phrased another way, it would transform[] the representations in each affidavit into bad faith claims of prejudice. (Ibid.) The court never, however, suggested that such circumstances would permit a judge to reject or otherwise inquire into an affidavit that substantially conformed to the exemplar in section 170.6, subdivision (a)(6). On the contrary, in McCartney, when the judge urged the court to excuse his intemperate outbursts at deputy public defenders as an understandable reaction to the blanket challenge policy against him, the court refused. (McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d 512, ) The court stated that, even assuming the evidence of a blanket challenge was clear and convincing, it could not justify the judge s injudicious response. (Id. at p. 538.) 16

23 [T]he Legislature clearly foresaw that the peremptory challenge procedure would be open to such abuses but intended that the affidavits be honored notwithstanding misuse. [Citations.] (McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d 512, 538.) In other words, even when the judge suspects and has direct evidence of a blanket challenge procedure, the judge cannot refuse to accept an affidavit that follows the form provided in section Nothing in Solberg changed the court s position. Rather, the discussion in Solberg further strengthens the conclusion in McCartney. As in McCartney, the court in Solberg reiterated that a judge has no discretion to reject a timely filed conforming affidavit. (See Solberg v. Superior Court, supra, 19 Cal.3d 182, 187 [if motion is timely filed and in proper form, judge must recuse himself without further proof].) For example, after observing there was no question as to the timeliness or the formal sufficiency of the affidavit[,] the court stated, It follows that [the judge] had no jurisdiction but to grant the motion and recuse himself. (Code of Civ. Proc., 170.6, subd. (3); see McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, [].) (Solberg v. Superior Court, supra, 19 Cal.3d 182, 190.) 7 In McCartney, there was actual evidence of a blanket challenge policy. The public defender established a written policy requiring his deputies to challenge the judge and they filed approximately 205 challenges over the following eight months. (McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d 512, 538, fn. 13.) 17

24 Moreover, respondent and real party ignore the context in which the Solberg court quoted from footnote 13 in McCartney. In Solberg, the appellants urged the court to adopt the Oregon practice on judicial disqualification into section (Solberg v. Superior Court, supra, 19 Cal.3d 182, 200.) In Oregon, the affiant need not state the underlying facts supporting a belief in bias, but must state the motion is made in good faith and not for purposes of delay. [Citation.] (Ibid.) The court refused to make the suggested judicial revision of section (Solberg v. Superior Court, supra, 19 Cal.3d 182, 200.) The court noted it has repeatedly held that section requires a good faith belief in the judge s prejudice.... [Citation.] (Ibid., italics in original.) The court, however, then clarified that To so hold does not add anything to the statute, because the requirement is already implicit in the necessity for making the motion under oath:.... [Citation.] (Ibid.) In other words, for purposes of [section 170.6] good faith is sufficiently established by the act of verification itself:.... (Ibid.) Requiring the affiant to go behind his oath and prove his good faith as a matter of fact would therefore constitute a substantial departure from the statutory scheme. (Id. at pp ) Thus, rather than suggest a judge could reject an affidavit where the judge believes it was filed in bad faith, the Solberg court affirmed that the statute s good faith requirement is automatically met upon the filing of an affidavit that conforms to the exemplar in section 170.6, subdivision (a)(6). 18

25 There is no judicial discretion to reject or conduct further inquiry into a conforming affidavit. The Solberg court rejected two additional proposals to judicially rewrite section and provide some degree of judicial review and discretion. (Solberg v. Superior Court, supra, 19 Cal.3d 182, ) The court refused to create a rebuttable presumption under section that the challenged judge could refute. (Id. at p. 198.) The court noted this proposal [W]ould require [the court] to read out of the statute the express provision... that when a motion is duly presented and an affidavit filed, thereupon and without any further act or proof another judge must be assigned.... (Id. at p. 198.) The court reiterated, [w]hen statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it. [Citation.] (Ibid.; see also Code Civ. Proc., 1858 [court should not insert what has been omitted or omit what has been inserted in a statute]; Estate of Horman (1971) 5 Cal.3d 62, 77 [ Courts do not sit as superlegislatures to determine wisdom, desirability or propriety of Legislature[ s statutes]. [Citations.] ] The court also refused to adopt the federal practice that requires a statement of the facts showing bias and permits the judge to determine whether the statement sufficiently shows bias. (Solberg v. Superior Court, supra, 19 Cal.3d 182, 199.) The court was unwilling to rewrite section noting that such a judicial revision would 19

26 [B]e inconsistent with [section 170.6, subdivision (a)(6)], which directs that all affidavits filed under the statute be substantially in the form which it then sets forth. [Fn. omitted.] (Solberg v. Superior Court, supra, 19 Cal.3d 182, 199.) Thus, while both McCartney and Solberg mentioned that section requires a good faith belief in the judge s prejudice, neither case permits judicial discretion to refuse an otherwise conforming affidavit. Both cases strictly hold to the clear statutory language and reaffirm that a judge must accept an affidavit that conforms to the exemplar in the section 170.6, subdivision (a)(6). This Court should similarly refuse to judicially rewrite section A Judge Must Follow Code of Civil Procedure Section s Plain Language Even When The Judge Suspects Abuse As shown above, section s plain language and legislative intent and caselaw show a judge has no discretion to refuse an affidavit that complies with the required form. 8 In two cases, the Court of Appeal reversed the same judge when he deviated from the statutory language and refused to accept conforming affidavits because they failed to state facts justifying prejudice. (See Journey v. Superior Court (1975) 47 Cal.App.3d 408; People v. Rodgers (1975) 47 Cal.App.3d 992.) In each case, the court reiterated that when the affidavit is timely filed in the proper form, the judge is bound to accept [it] without further inquiry.... [Citations.] (Journey v. Superior Court, supra, 47 Cal.App.3d 408, 411, omission in original; People v. Rodgers, supra, 47 Cal.App.3d 992, 994.) 20

27 This point remains true even when a judge suspects abuse, i.e., that the affidavit was filed in bad faith for an improper motive. In La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, one party argued the evidence showed the other party filed a section affidavit in bad faith to gain a tactical advantage. (Id. at p ) The party s argument was irrelevant to the section peremptory challenge. The court explained that to further section s laudable goals to promote judicial fairness and integrity and avoid the suspicion of unfairness, there is no discretion to refuse an otherwise conforming affidavit. (Ibid.) Where the party has complied with the conditions set forth in section 170.6, the judge must grant the peremptory challenge even if the [judge] suspects that the party has abused its right to utilize section [Citation.] (Ibid.) The court reached the same conclusion in Nutragenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243. In response to a claim the opposing party filed a peremptory challenge in bad faith to judge-shop, the court expressed concern about counsel and parties who abuse the procedure. (Id. at p. 259.) The court wished it could do more to stop [such] behavior[,] but recognized it must follow the law as it currently exists. (Ibid.) The court concluded a judge must accept an affidavit that complies with the statutory conditions, even if the court suspects that the party has abused its right to utilize section [Citation.] (Nutragenetics, LLC v. Superior Court, supra, 179 Cal.App.4th 243, 260.) 21

28 This is consistent with the Supreme Court s discussion of potential abuse. In Johnson and Solberg, the court explained that section would be subject to abuse because it requires judges to accept timely filed conforming affidavits without further act or proof. (Johnson v. Superior Court, supra, 50 Cal.2d 693, 697; Solberg v. Superior Court, supra, 19 Cal.3d 182, ) The possibility of such abuse [W]as a matter to be balanced by the Legislature against the desirability of the objective of the statute.... [A]nd the fact that some persons may abuse the section is not a ground for holding the provision to be unconstitutional. (Solberg v. Superior Court, supra, 19 Cal.3d 182, 196, omission in original, quoting Johnson v. Superior Court, supra, 50 Cal.2d 693, 697.) Neither court would have acknowledged the inevitable widespread abuse if section permitted judges to refuse otherwise conforming affidavits where they suspected bad faith. Respondent and real party place great emphasis on the lower court s suspicion of a blanket challenge policy. The court s suspicion is irrelevant to whether the court must nonetheless follow the statute. Section s language and application do not change in the context of a suspected blanket challenge. In Moreira v. Superior Court (1989) 215 Cal.App.3d 42, the public defender represented the defendant and filed a section challenge the day before his arraignment. (Id. at p. 44.) The judge denied the challenge as 22

29 untimely and refused to appoint the public defender because the public defender was filing blanket affidavits against the judge and thereby creating congestion of other courtrooms. (Moreira v. Superior Court, supra, 215 Cal.Appl3d 42, 44.) The Court of Appeal found the peremptory challenge was timely and therefore was effective to disqualify [the judge] upon its filing.... (Id. at p. 46.) The court also found the judge s belief of a blanket challenge did not constitute good cause under Penal Code section to refuse to appoint the public defender even though peremptory challenges invariably impact other judges caseloads. (Ibid.) In Solberg, the court discussed the possibility of abuse pursuant to blanket challenges at length. (Solberg v. Superior Court, supra, 19 Cal.3d 182, ) The court found blanket challenges were different not in kind but only in degree from the arguments rejected in Johnson, and that the difference does not warrant a contrary result. (Id. at p. 202.) Among other things, the court noted the issue of blanket challenges was not new to the court because the court addressed them in McCartney. (Ibid.) While the court reiterated its disapproval of blanket challenges, the court reaffirmed that the possibility of such abuse does not vitiate section (Id. at p. 203.) Section means what it says. [T]he Legislature guaranteed to litigants an extraordinary right to disqualify a judge. [Citation.] (Id. at p. 193.) The reliance of respondent and real party on the dissenting portion of the concurring and dissenting opinion in Solberg is just that: reliance on a dissent. 23

30 [I]t needs no citation of authority to point out that a majority opinion of the Supreme Court states the law and that a dissenting opinion has no function except to express the private view of the dissenter. (Wall v. Sonora Union School Dist. (1966) 240 Cal.App.2d 870, 872; People v. Franz (2001) 88 Cal.App.4th 1426, 1442 [ a concurring opinion is not precedential authority. ].) The dissent, however, clearly acknowledged that the majority found section s plain language requires a judge to accept a conforming affidavit without further inquiry. The majority reason that judicial inquiry into whether or not allegations of prejudice have been made in good faith would violate the language of section 170.6, subdivision [(4)], which provides that when a disqualification motion is duly presented and an affidavit timely filed, thereupon and without any further act or proof another judge must be assigned to the case. (Solberg v. Superior Court, supra, 19 Cal.3d 182, 206 (conc. & dis. opn. of Tobriner, J.).) The dissent also acknowledged that the majority found a judge must accept a conforming affidavit regardless of the basis or level of suspicion that it was filed in bad faith. The instant ruling allows a litigant to remove a judge... despite the patently false nature of the claim of prejudice offered. No matter how transparent the deception, the majority instruct the trial judge to step aside. (Solberg v. Superior Court, supra, 19 Cal.3d 182, 207 (conc. & dis. opn. of Tobriner, J.).) 24

31 Respondent s continued citation to cases from other states is puzzling. As noted in our informal reply, those cases interpreted different statutory language than section As the court in Williams noted, the different statutory language was a fundamental distinction and the out-of-state cases have no bearing on section (People v. Superior Court (Williams), supra, 8 Cal.App.4th 688, 700.) The court in Williams also explained that the foreign cases have no bearing on the issue of blanket challenges. (Id. at pp ) The court repeated the Supreme Court s holding that section is not vitiated by blanket challenges and conforming affidavits must be honored notwithstanding [such] misuse. (Solberg v. Superior Court, supra, 19 Cal.3d at pp ) (People v. Superior Court (Williams), supra, 8 Cal.App.4th 688, 700, modification in original.) The lower court in our case had no discretion to reject the attorney s section affidavit. 25

32 B. CODE OF CIVIL PROCEDURE SECTION DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE IN ANY HYPOTHETICAL APPLICATION INCLUDING A SUSPECTED BLANKET CHALLENGE We addressed respondent and real party s separation of powers argument in our informal reply letter. We incorporate that letter by this reference. Here, we respectfully address Justice Thompson s dissenting statement that the People have not shown the lower court erred in finding section unconstitutional as applied to the specific facts in this case. 9 The specific facts in the record in this case, however, are simple and undisputed. As alleged in the petition, the attorney filed a timely peremptory challenge in the form required by section The lower court denied the attorney s challenge. For the reasons discussed in section A, above, the lower court erred as a matter of law. To the extent the dissent relies upon statements made in the lower court s order as evidence, we respectfully submit such statements are not evidence in the record in this case. While a lower court s written opinion may 9 The dissent also believes the for cause challenge under sections and provides an adequate remedy at law. The two challenges, however, differ significantly in that a for cause challenge requires proof of actual bias to the satisfaction of a judge, but a peremptory challenge does not. Prejudice, being a state of mind, is very difficult to prove, and, when a judge asserts that he is unbiased, courts are naturally reluctant to determine that he is prejudiced. (Johnson v. Superior Court, supra, 50 Cal.2d 693, 697.) Moreover, for a variety of reasons, a litigant may not want to spread the details of his charges of judicial prejudice on the public record. [Citation.] (Solberg v. Superior Court, supra, 19 Cal.3d 182, 199.) Thus, a for cause challenge under sections and does not provide an adequate legal remedy when a judge erroneously denies a section affidavit. 26

33 illustrate the judge s theory or basis of decision, it cannot,... be accepted as establishing any fact in the case. [Citations.] (In re Estate of Bernard (1962) 206 Cal.App.2d 375, 381, quoting In re Lasker (1942) 51 Cal.App.2d 120, 122.) It does not serve as a substitute for a record of the evidence. [Citation.] (Avalos v. Welty (1965) 237 Cal.App.2d 545, 546.) [I]t will not be considered in determining whether... the findings of the court are supported by the evidence. [Citations.] (Stone v. Los Angeles County Flood Control Dist. (1947) 81 Cal.App.2d 902, 907.) The only question for [the reviewing court] is whether [the lower court s findings] have sufficient legal support in the evidence.... (Goldner v. Spencer (1912) 163 Cal. 317, 320.) Since it is the duty of appellate courts to decide the cases upon the records before them, there is no justification for the adoption of loose practices which would make for uncertainty or inadequacy in records on appeal. (In re Estate of Bernard, supra, 206 Cal.App.2d 375, 381, quoting In re Lasker, supra, 51 Cal.App.2d 120, 122.) Even if, however, the statements in the lower court s order could be considered as evidence on appeal and even if those statements were true, it would not change the result. The California Supreme Court holds that section does not violate the separation of powers doctrine in any application even where a litigant files an affidavit pursuant to a blanket challenge. (Solberg v. Superior Court, supra, 19 Cal.3d 182, ) The Solberg court s consideration of section s constitutionality was not limited to the facts in that case. Nowhere did the court draw such a limitation. Rather, the 27

34 court was asked to reconsider its broad holding in Johnson because the past twenty years had revealed widespread and persistent abuses of section (Solberg v. Superior Court, supra, 19 Cal.3d 182, 194.) Many of the abuses the court discussed had nothing to do with the facts in Solberg. (Id. at pp ) The court stopped recounting examples of potential abuse stating that no possible abuse of section would persuade the court to hold the statute invalid as applied. (Id. at p. 195, fn. omitted.) The court also specifically rejected the claim that the possibility of blanket challenges renders section unconstitutional. (Solberg v. Superior Court, supra, 19 Cal.3d 182, ) Again, nothing in the court s broad language limits its consideration to the specific facts in Solberg. While disapproving of the practice, the court held the potential for blanket challenges did not vitiate the statute and affidavits filed pursuant to a blanket challenge must be honored notwithstanding the misuse of section (Id. at pp ) Neither respondent, nor real party, cites any authority limiting Solberg to its facts or otherwise restricting its broad holding. The Court of Appeal consistently notes that Solberg holds section is constitutional when applied to any conforming affidavits, including affidavits filed pursuant to a blanket challenge. In Nutragenetics, LLC v. Superior Court, supra, 179 Cal.App.4th 243, the court noted that both the Legislature and the Supreme Court were aware the peremptory challenge procedure would be open to various abuses. (Id. at p. 259.) The court noted, however, that 28