Judge Michelle Williams Court, Case Number: 23STCP02365, Date: 2023-09-21 Tentative Ruling

Judge: Michelle Williams Court, Case: 23STCP02365, Date: 2023-09-21 Tentative Ruling

Case Number: 23STCP02365 Hearing Date: September 21, 2023 Dept: 1

23STCP02365 COMMITTEE TO SUPPORT THE RECALL OF DISTRICT ATTORNEY GEORGE GASCON vs DEAN C. LOGAN

Petitioner/Plaintiff Committee to Support the Recall of District Attorney George Gascon’s Motion to Reconsider and Vacate Order Granting Peremptory Challenge (C.C.P 170.6)

TENTATIVE RULING: The motion is DENIED.

Background of 23STCP02365 Committee to Support the Recall of District Attorney George Gascon v. Logan

On July 7, 2023, Petitioner/Plaintiff Committee to Support the Recall of District Attorney George Gascon filed a petition for writ of mandate and complaint for declaratory relief and injunctive relief naming Dean C. Logan, in his official capacity as Los Angeles County Registrar Recorder/County Clerk, and Los Angeles County Registrar Recorder/County Clerk’s Office as Defendants/Respondents.

On July 27, 2023, Judge James C. Chalfant issued an order relating this action with 22STCP03795 Committee to Support the Recall of District Attorney George Gascon v. Logan et al and ordering Petitioner to add District Attorney George Gascon as a real party in interest.

Petitioner filed the amended petition adding George Gascon on July 28, 2023. In the amended petition, Petitioner alleges the County Registrar unlawfully rejected tens of thousands of voter signatures in support of the petition to recall George Gascon. Petitioner seeks a writ of mandate and injunction “compelling the Registrar to: (1) count as valid any and all incorrectly-rejected Recall Petition signatures identified herein; (2) reissue a certificate that accurately identifies the number of valid Recall Petition signatures; and (3) certify to the Los Angeles County Board of Supervisors that the Recall Petition is sufficient.” (Am. Pet. ¶¶ 36, 52.) Petitioner also seeks a judicial declaration that the Registrar violated the law by failing to do the same. (Id. ¶ 45.)

On August 10, 2023, Judge Chalfant accepted George Gascon’s Code of Civil Procedure section 170.6 peremptory challenge.

On August 16, 2023, this Court issued an order finding 22STCP03795 and 23STCP02365 should no longer be related and returned the cases to their original departments.

Background of 22STCP03795 Committee to Support the Recall of District Attorney George Gascon v. Logan

On October 18, 2022, Petitioner Committee to Support the Recall of District Attorney George Gascon filed a petition for writ of mandate and complaint for declaratory relief and injunctive relief naming Dean C. Logan, in his official capacity as Los Angeles County Registrar Recorder/County Clerk, and Los Angeles County Registrar Recorder/County Clerk’s Office as Respondents.

Petitioner filed an amended petition on November 16, 2022. In this amended petition, Petitioner seeks to “enforce the ‘right to inspect or to receive a copy of any public record or class of public records’” under Government Code section 6258. (Am. Pet. ¶¶ 33, 42.) Gascon is not a party to this proceeding. On December 6, 2022, the court granted Petitioner’s request for a preliminary injunction. On January 24, 2023, the court granted Petitioner’s ex parte application to enforce the injunction. On August 10, 2023, the Court of Appeal issued its opinion directing the court to vacate its January order as to the authorization of electronic lists outside the examination room and the disclosure of redacted affidavits of voter registration.

Motion to Reconsider Acceptance of 170.6 Challenge

Peremptory Challenges and Reconsideration Thereof

“Section 170.6 permits a party to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body. [Citation.] Where a disqualification motion is timely filed and in proper form, the trial court is bound to accept it without further inquiry.” (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4.)

Pursuant to Code of Civil Procedure section 170.6(a)(2), a party may file a peremptory challenge within a specified time. “As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing . . . [S]ection 170.6[(a)], subdivision (2), includes three express exceptions to the general rule: (1) the master calendar rule; (2) the all purpose assignment rule; and (3) the 10 day/5 day rule. To determine whether a peremptory challenge has been timely filed, the trial court must decide whether the general rule or any of the three exceptions apply.” (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1316 citing People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171-1173.)

Courts have also adopted a further limitation for proceedings that are continuations of prior proceedings. “When the second action or proceeding that is considered to be a continuation of the earlier action or proceeding is assigned to the same trial judge who presided over the earlier action, the litigants are not permitted to exercise a peremptory challenge against that judge: Such a motion is untimely, because it was not made before commencement of the earlier trial. The reason for this further limitation on the right to peremptorily challenge a judge under section 170.6 is to prevent a litigant from disqualifying the judge most familiar with the facts of the case in the hopes of obtaining a more favorable result.” (Maas v. Superior Court (2016) 1 Cal.5th 962, 979.)

In the Los Angeles Superior Court, Department 1 is the proper department to hear requests for reconsideration of orders accepting a peremptory challenge that originated in the Central District. (LASC Local Rule 2.23(1); Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 426; Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 64–65; In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.)

23STCP02365 Is Not a Continuation of 22STCP03795 for Purposes of Section 170.6

George Gascon was added to 23STCP02365 in the amended petition filed July 28, 2023. Gascon’s counsel signed an acknowledgement of receipt on August 1, 2023 and filed the peremptory challenge on August 9, 2023. Thus the peremptory challenge was timely unless an exception applies. (Code Civ. Proc. § 170.6(a)(2).) No party had filed a peremptory challenge in 23STCP02365. Accordingly, Gascon’s peremptory challenge did not violate the “only one motion for each side” limitation. (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032; Code Civ. Proc. § 170.6(a)(4).)

Petitioner contends Respondent Gascon’s peremptory challenge is barred by the continuation rule because it is a continuation of 22STCP03795. (Mot. at 9:5-12:10. See Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1493 (“A peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action.”).)

Petitioner asserts that the cases are a continuation “is exactly why Judge Chalfant transferred the case to his calendar in the first place.” (Mot. at 9:6-7.) Judge Chalfant ordered the cases related, which does not resolve the issue presented here. (Bravo, supra, 149 Cal.App.4th at 1494 (“The fact that the cases are related does not resolve the issue of whether the second case is a continuation of the first case for purposes of Code of Civil Procedure section 170.6.”); Maas v. Superior Court (2016) 1 Cal.5th 962, 979 (“Case law has long established a further limitation . . . In some situations, that is, when a second action or special proceeding involves substantially the same issues and matters necessarily relevant and material to the issues in the original case, the second action or proceeding is considered a continuation of the earlier action or proceeding for purposes of section 170.6.”) (quotations omitted).)

As argued by Gascon, (Gascon Opp. at 4:22-5:10), Petitioner’s cited authority bears little resemblance to the instant case. Both Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 627 and Garcia v. Superior Court of Riverside County (2023) 92 Cal.App.5th 47, 54 found habeas petitions were continuations of the underlying criminal proceedings for purposes of Code of Civil Procedure section 170.6. (Yokley, supra 108 Cal.App.3d at 624 (“for purposes of Code of Civil Procedure section 170.6, a hearing of an order to show cause made returnable before the trial court by the Court of Appeal, to make an inquiry as to a defendant’s competence to enter a plea of guilty or to determine whether he had been denied effective assistance of counsel in the trial court, is a continuation of a criminal trial.”); Garcia, supra, 92 Cal.App.5th at 55 (both proceedings related “to the conditions of Garcia’s pretrial confinement,” including “whether the jail had to test him for porphyria; had to provide him with Givlaari; had to provide him with (or at least let him wear) protective clothing; had to provide him with a special diet; and had to shield him from sunlight during transportation”).)

The court in National Financial Lending, LLC v. Superior Court (2013) 222 Cal.App.4th 262, 278 found a judgment creditor motion for impose liability was a continuation of a receivership proceeding where both matters “will depend on consideration of the relationship between PCF and NFL, Harkey’s control over both entities and NFL’s failure to honor the notice of levy.” In Andrews v. Joint Clerks Port Labor Relations Committee, San Francisco (1966) 239 Cal.App.2d 285, 300 the second proceeding “sought the removal of the arbitrator, and the naming of a new arbitrator . . . Thus, in effect, they sought a modification of the order previously entered” in the first proceeding. No such considerations are present here. The petition in 23STCP02365 does not seek to vacate or modify the injunction order issued in 22STCP03795 and the 23STCP02365 does not depend on the same considerations as the initial public records proceeding.

In reply, Petitioner cites Garcia v. Superior Court of Riverside County (2023) 92 Cal.App.5th 47, 57-58 to highlight the court’s disjunctive statement of the continuation rule. (Reply at 6:15-17. See Garcia, supra, 92 Cal.App.5th at 57-58 (“to be a continuation, the habeas proceeding had to involve either the same issues or matters necessarily relevant and material to the issues in the criminal action.”).) However, under either formulation the second action is not a continuation of the first here.

The Court agrees with Respondents that the subsequent case does not involve the same issues as the prior action. The first action sought to enforce public record inspection rights, an issue Gascon has no substantive interest in, whereas the second action seeks to alter the tally of a recall petition related to Gascon’s elected office. The cases involve entirely different factual and legal issues, Gascon was not a party to the first action, and the first action did not affect his interests. Under the circumstances presented here, Gascon must not be barred from filing a peremptory challenge. (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 61 (“If a new cause or contested proceeding not involving substantially the same issues as an earlier finalized proceeding is later commenced, a party who first appears in the new proceeding, and who may have had no interest to protect in the earlier proceeding, should not be barred from exercising a peremptory challenge under section 170.6 by a trial or judicial determination of contested fact issues in the earlier proceeding.”).)

The second action also does not involve “matters necessarily relevant and material to the issues in the original case.” (Maas, supra, 1 Cal.5th at 979.) Whether the Registrar wrongly rejected the recall petition based upon a myriad of asserted irregularities, the basis of 23STCP02365, is not relevant or material to whether the Registrar improperly denied Petitioner access to various public election records, the basis for 22STCP03795.

As argued by Respondents, a similar subject matter and a common ultimate purpose are not sufficient to support a finding that a subsequent case is a continuation. (See e.g. City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 593 (“There is clearly a subject matter connection between the two cases. However, . . . the legal issues raised by the two actions are quite distinct. . . . The paramount questions presented by the two cases are different, and the relationship of the issues in the two cases is not as direct as in the cases where the second proceeding involves the very validity of the first order or enforcement proceedings based on the original order. GWF’s suit is a new action attacking a separate phenomenon and thus is not merely a continuation of the earlier proceeding.); NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 257 (“the second proceeding must arise out of the first proceeding—not merely, as NutraGenetics suggests, out of the same incidents or events that gave rise to the first proceeding.”).) The public records inspection petition in 22STCP03795 “arises out of later events distinct from those in” 23STCP02365, i.e. the separate and distinct denial or imposition of restrictions upon Petitioner’s right to inspect records occurring after the rejection of the recall petition. (Bravo, supra, 149 Cal.App.4th at 1494.)

Petitioner also argues the Respondents are judge-shopping, (Mot. at 12:11-13:19), which is immaterial and does not require the reconsideration of Judge Chalfant’s order. (See generally NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 260 (“Under the current state of the law, if a motion complies with the statutory conditions, a court should grant a disqualification motion—even if the court suspects that the party has abused its right to utilize section 170.6. It is up to the Legislature to address any concerns that the legal community has in this regard.”) (internal quotation omitted); City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 593 (“judicial efficiency is not to be fostered at the expense of a litigant’s rights under section 170.6 to peremptorily challenge a judge.”).)

Petitioner has not demonstrated that Judge Chalfant’s acceptance of the peremptory challenge should be reconsidered and vacated. Petitioner’s motion is DENIED.