Carl v. Superior Court

Opinion

It has apparently become common practice in the trial courts for litigants to file a “notice of unavailability” under the guise of

On April 4, 2007, petitioner Andrew F. Carl filed a statement of disqualification against the assigned trial judge. He then filed a notice of unavailability under Tenderloin, indicating he would be unavailable to respond to anything until May 11, 2007. Given a challenged judge must act on a statement of disqualification within 10 days of its filing or be deemed to have consented to the disqualification, on April 13, 2007, the court ordered the statement stricken because it disclosed no legal grounds for disqualification and was untimely. (Code Civ. Proc., § 170.4, subd. (b).) The court clerk served a copy of the order on the parties the same day. Petitioner filed the instant petition for writ of mandate on June 11, 2007.

The petition is untimely on its face. An order striking a statement of disqualification is not appealable; it may only be challenged by a petition for writ of mandate filed “within 10 days after service of written notice of entry of the court’s order . . . .” (Code Civ. Proc., § 170.3, subd. (d).) Here the petition was filed almost two months after petitioner was served written notice of entry of the order striking the statement of disqualification.

Petitioner first insists the petition is timely because the trial court served notice on him and did not send written notice to the attorney representing him as required by law. In support of this argument he attaches a copy of the facsimile cover sheet the court used to serve the order on him: it shows his name but not his attorney’s. The inference we are asked to draw is that his attorney was never served with the order and thus the time within which to file a petition for writ of mandate has neither started nor expired.

On our own motion we called up the superior court file and take judicial notice of the documents in it. (Evid. Code, § 452, subd. (d)(1).) In addition to the facsimile cover sheet petitioner attached as an exhibit to the petition, the

Petitioner then asserts that the time to file the petition could not have started on April 13 because the day before the order was entered petitioner filed a “notice of unavailability” pursuant to Tenderloin. The purported function of this “notice” was to arrest the power of the superior court to issue any order that would require or impose upon petitioner any legal obligation to act. Simply put, petitioner essentially argues that by filing a “notice of unavailability” he unilaterally called a litigation timeout. The argument fails for many reasons, but the three most obvious are: (1) petitioner cannot on his own enjoin the superior court from issuing orders; (2) petitioner does not possess the power to extend the statutorily imposed timeclock for the court to respond to a statement of disqualification or for him to file a petition for writ of mandate; and (3) his stated unavailability under the notice was to May 11, 2007, so a petition filed a month later on June 11 was untimely under Code of Civil Procedure section 170.3, subdivision (d), even under his theory.

We explain our reasons for summarily denying the petition in part because the common practice of filing a “notice of unavailability” in the superior court now permeates the appellate court system. We receive them on a regular basis and at all times during the appeal process: they come before the record is filed, they come while the matter is being briefed, and they have even come after a matter has been submitted for decision.

Tenderloin, of course, merely holds that a trial court may impose sanctions against an attorney who conducts litigation in bad faith and solely for the purpose of harassment. There, among other things, the sanctioned attorney purposefully set discovery for times when he knew opposing counsel was on vacation and unavailable in order to gain an unfair tactical advantage in the litigation. Nothing in Tenderloin, however, expressly condones the practice that has grown up around its name. It has simply been made up.

The petition for writ of mandate is denied.