Filed 5/30/13 Gjersvold v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MATTHEW JOHN GJERSVOLD,

         Petitioner,                                                     E058426

v.                                                                       (Super.Ct.No. SWF1300918)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; Petition for writ of mandate. Rafael A. Arreola,

Judge. (Retired judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Petition granted.

         Brian Boles, Interim Public Defender, and William A. Meronek, Deputy Public

Defender, for Petitioner.

         No appearance for Respondent.



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       Paul Zellerbach, District Attorney, and Kelli Catlett, Deputy District Attorney, for

Real Party in Interest.

       In this matter, we have reviewed the petition, the real party in interest’s response,

as well as the record. We have determined that resolution of the matter involves the

application of settled principles of law, and that issuance of a peremptory writ in the first

instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36

Cal.3d 171, 178.)

       It is generally stated that the appellate court reviews the trial court’s ruling on a

statement of disqualification for abuse of discretion. (Grant v. Superior Court (2001) 90

Cal.App.4th 518.) However, where, as here, the facts are undisputed, we must merely

apply the applicable law to those facts.

       As a general rule, a challenge of a judge is permitted under Code of Civil

Procedure section 170.61 any time before the commencement of a trial or hearing.

(People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171 (Lavi).)

       As explained in section 170.6, subdivision (a)(2), the exceptions to the general

rule are known as the 10-day/5-day rule, the master calendar rule, and the all purpose

assignment rule. For any given factual scenario, it must be determined whether any of

these exceptions are applicable, or whether the general rule (the commencement of trial

rule) should apply. (Lavi, supra, 4 Cal.4th at p. 1172.) None of these exceptions apply to

the present circumstances. Petitioner presented his challenge to Judge Arreola at the


       1   Statutory references are to the Code of Civil Procedure.


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conclusion of the hearing on March 29, 2013. The recusal was too late to affect that

hearing. However, it was timely with respect to any and all future hearings before Judge

Arreola because he had not ruled on a contested fact issue involving the merits of the

case.

                                       DISPOSITION

        Let a peremptory writ of mandate issue directing the Riverside County Superior

Court to set aside its order denying petitioner’s motion for disqualification of Judge

Arreola and to issue a new order granting this motion.

        Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 McKINSTER
                                                                                             J.


We concur:


RAMIERZ
                          P. J.


MILLER
                             J.




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