Published family law case, Fourth District Division One court of Appeal: Failure to act on CCP § 170.3 statement of disqualification renders orders void.

The same holding also applies to the failure to act on a CCP § 170.6 peremptory challenge which was acknowledged as being received:
Peremptory challenges can only be denied or granted, they cannot be struck.

The below opinion acknowledges that an appeal can be taken to examine the IMPACT of the court’s failure to act on the validity of the court’s subsequent orders based on the failure to act on a disqualification. Appeal case law is evolving on a continual basis.

“Father contends the court’s orders of November 22, 2013, are void because the  court became disqualified after failing to act on father’s second statement of disqualification.5 We agree.

A party may seek a commissioner’s disqualification for cause by filing and serving  a written verified statement objecting to the hearing before the commissioner and setting forth the facts constituting the grounds for the commissioner’s disqualification. (Code Civ. Proc., §§ 170.3, subd. (c)(1); 170.5, subd. (a).) The statement must be presented at the earliest practicable opportunity after the party discovers the facts constituting the grounds for disqualification. (§ 170.3, subd. (c)(1).)

Once a statement of disqualification is filed, the commissioner has limited power to act in the proceeding until the question of his or her disqualification is determined. (Code Civ. Proc., § 170.4, subd. (a), (d).) The commissioner may, without conceding disqualification, “request any other judge agreed upon by the parties to sit and act in his  or her place.” (Code Civ. Proc., §§ 170.3, subd. (c)(2), 170.4, subd. (a)(2).) The commissioner may also, within 10 days of the filing or service of the statement, whichever is later: (1) order the statement stricken if the statement is untimely or, on its face, discloses no legal grounds for disqualification; (2) consent to disqualification; or (3) file a written verified answer to the statement. (Code Civ. Proc., §§ 170.3, subd. (c)(3); 170.4, subd. (b).) However, the commissioner may not ignore the statement. (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 421.)

5 Generally, a party may only obtain review of the determination of the disqualification of a commissioner by filing a petition for writ of mandate. (Code. Civ. Proc., § 170.3, subd. (d); People v. Brown (1993) 6 Cal.4th 322, 336.) There is an exception to this rule for claims asserting the deprivation of constitutional due process. (See, e.g., People v. Brown, supra, at pp. 332-335; Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673; Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1339.) We need not decide whether this exception applies here because father is not challenging the propriety of the court’s failure to act on his statement of disqualification. Rather, he is challenging the import of the court’s failure to act on the validity of the court’s subsequent orders.

The commissioner in this case did not take any of the permissible actions in response to father’s second statement of disqualification. Instead, the commissioner impermissibly ignored the statement by declining to entertain it. As a result, the commissioner is deemed to have consented to disqualification. (Code Civ. Proc., § 170.3, subd. (c)(4); Urias v. Harris Farms, Inc., supra, 234 Cal.App.3d at pp. 418-419, 421-422; Hollingsworth v. Superior Court (1987) 191 Cal.App.3d 22, 26; Lewis v. Superior Court (1988) 198 Cal.App.3d 1101, 1103-1104.)

Moreover, because the question of the commissioner’s disqualification was not determined at or before the November 22, 2013, hearing, she lacked power to decide the merits of the matters before her at the hearing. (Code Civ. Proc., § 170.4, subd. (d); Lewis v. Superior Court, supra, 198 Cal.App.3d at pp. 1103-1104.) Thus, the orders she made at the hearing regarding father’s objection under Family Code section 4251 to her acting as a temporary judge, the Department’s and father’s motions for modification of child support, father’s request for sanctions, father’s request for reconsideration of the award to mother of $6,500 in attorney fees, and mother’s request for an award of additional attorney fees are all invalid. (People v. Cowan (2010) 50 Cal.4th 401, 454 [except as permitted by Code of Civ. Proc. § 170.4, actions taken by a disqualified judge are invalid]; accord, Rossco Holdings, Inc. v. Bank of America (2007) 149 Cal.App.4th  1353, 1362; Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776.) Given this consequence, we need not address father’s remaining challenges to these orders. ”


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