Thomas Reality Co. v. Superior Court

THE COURT. *

Petitioner seeks a peremptory writ of mandate compelling the superior court to honor its challenge filed pursuant to Code of Civil Procedure section 170.6. The trial court struck the challenge as untimely.

The issue presented is a recurring one. Section 170.6, subdivision (2), provides in part that when the parties know the identity of the judge or commissioner “assigned to or who is scheduled to” hear a matter at least 10 days before the date set for hearing, a challenge is untimely unless made at least 5 days before the hearing. 2 When a party files a motion and calendars it for hearing in a specified department of the superior court, is the judge’s identity “known” for purposes of that provision?

*93 In striking the challenge in the instant case, the trial court was following the holding of People v. Roerman (1961) 189 Cal.App.2d 150, 164-165 [ 10 Cal.Rptr. 870 ]. There a challenge filed on the day of trial of a case assigned more than 10 days earlier to trial in a designated department was held untimely; the court explicitly rejected the contention that assignment to a particular department does not constitute an assignment to a judge. 3 Numerous…