Unreported / Non-Citable
Background
The People of the State of California, through the San Bernardino County District Attorney's Office, petitioned the Fourth District Court of Appeal, Division Two, for a writ of mandate after the Superior Court of San Bernardino County denied their motion to disqualify Judge Cecilia Joo under Code of Civil Procedure section 170.6, subdivision (a)(2). The underlying matter is a post-judgment proceeding in People v. Stewart Manago, San Bernardino County Superior Court case No. FVI17003315, in which real party in interest Manago filed a motion for post-conviction discovery under Penal Code section 236.15 and a motion to recuse the district attorney. Judge Joo first presided over the case on April 18, 2025, and the matter was repeatedly continued without substantive rulings on the pending motions.
On December 5, 2025, Judge Joo heard and denied Manago's Marsden motion and continued the matter to January 9, 2026; it was continued several more times and came back before her on July 10, 2026, but Manago was not transported to court that day, so the case was again continued to August 21, 2026. On August 14, 2026, the People filed a peremptory challenge under section 170.6, which Judge Joo denied as untimely on August 18, 2026. The People timely petitioned the Court of Appeal, arguing the challenge was filed more than five days before the scheduled hearing. After this court notified the parties it was considering a peremptory writ in the first instance under Palma v. U.S. Industrial Fasteners, Inc., neither the respondent court nor Manago filed a response.
The Court’s Holding
The court reviewed the denial de novo and applied the 10-day/5-day rule of section 170.6, subdivision (a)(2). It found no indication that Judge Joo had been assigned for all purposes or that department V3, where she presided, operated as a master calendar department. Because the assignment was to a particular department rather than a particular judge, and no response suggested otherwise, the 10-day/5-day rule governed the timeliness analysis.
The People filed their peremptory challenge more than five days before the scheduled hearing, so it was timely under section 170.6. Although the matter had been repeatedly continued and the People arguably had earlier opportunities to seek recusal, those facts did not render the challenge untimely. Case law is inconsistent on whether a continuance restarts the time for filing a disqualification motion, but where a matter is assigned to a department rather than a particular judge, courts have found a motion timely if filed at least five days before the continued hearing date and the continuance was sought in good faith.
Here, the continuance appeared based on the fact that Manago was not transported to the hearing, so there was no indication any party acted in bad faith. The court therefore concluded the challenge was timely and the denial was in error. It granted the petition and issued a peremptory writ of mandate in the first instance, directing the superior court to vacate its order denying the motion, enter a new order granting the motion, and assign another judge to the case. The temporary stay was dissolved upon issuance of the remittitur.
Key Takeaways
- A peremptory challenge under section 170.6 is timely under the 10-day/5-day rule when filed more than five days before a scheduled hearing, even after repeated continuances.
- When a case is assigned to a department rather than a specific judge, and no all-purpose assignment or master calendar system applies, the 10-day/5-day rule governs timeliness rather than the more restrictive all-purpose assignment rule.
- Continuances do not automatically make a peremptory challenge untimely; in department-assignment cases, filing at least five days before the continued hearing date is timely if the continuance was sought in good faith.
- Prior hearings before a judge that do not involve determinations of contested fact issues relating to the merits do not preclude a later peremptory challenge under section 170.6.
- After giving Palma notice, the appellate court may grant the petition and issue a peremptory writ in the first instance when the respondent court and real party in interest file no response.
Why It Matters
The decision confirms that the 10-day/5-day rule remains available in department-assignment settings even after multiple continuances and prior hearings, so long as no contested fact issues on the merits were decided. It also shows that a continuance caused by a party's failure to be transported to court, without any indication of bad faith, does not forfeit a timely peremptory challenge.
Procedurally, the ruling illustrates the practical effect of Palma notice: when neither the respondent court nor the real party in interest responds, the Court of Appeal may grant relief and issue a peremptory writ in the first instance without full briefing, expediting correction of a clear-cut disqualification error.