Former Los Angeles Superior Court Local Rule 7.5(f), requiring that a peremptory challenge to the original trial judge after reversal on appeal must be made within 60 days of the date of issuance of the remittitur, is void, said the Second District Court of Appeal in Ghaffarpour v. Superior Court (Jan. 27, 2012, B234097), __ Cal.App.4th __ [2012 DJDAR 1107].
Plaintiff appealed from the court's denial of his motion to correct the court record to show that his complaint was filed on June 11, 2007, rather than August 14, 2007. The court of appeal reversed the judgment and remanded for further proceedings. The remittitur issued on August 26, 2010. The Superior Court did nothing.
On June 3, 2011, plaintiff's counsel contacted the court and was told that the case would be returned to the last assigned judge (Judge Stern), as specified by former Local Rule 7.5(f) (now renumbered as Rule 2.5(c) of the Local Rules). Plaintiff's motion to disqualify Judge Stern was denied, on the ground that Rule 7.5(f) stated that the 60 day period in which to disqualify the original trial judge begins to run from the date of issuance of the remittitur.
The court of appeal granted plaintiff's petition for a writ of mandate. A local rule may not conflict with a statute, and Code of Civil Procedure §170.6, subd. (a)(2), provides that the time to file a peremptory challenge to the original judge after remand is 60 days after notice of the assignment. Plaintiff did not receive notice that the case was assigned to Judge Stern until his counsel inquired on June 3, and his challenge was timely.
The appellate court disagreed with the contention that plaintiff was on notice as of the date of the remittitur, since former Rule 7.5(f) stated that after remand a case will be returned to the last assigned judge. This "notice" was insufficient, said the court, because the presiding judge has the discretion to override the local rule. Given the authority of the presiding judge to reassign cases for a multitude of reasons, parties and their counsel cannot be sure than the general policy set forth in the rule will be followed, and further notice is required.