Filed 2/14/14 Syprasert v. Superior Court CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



ARICH SYPRASERT et al.                                                  B253072

         Petitioners,                                                   (Los Angeles County
                                                                        Super. Ct. No. BC527441)
         v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

         Respondent;

TRUCK INSURANCE EXCHANGE et al.,

         Real Parties in Interest.




         ORIGINAL PROCEEDINGS in mandate. Rolf Michael Treu, Judge.
Petition granted.
         Brentwood Legal Services, LLP and Steven L. Zelig for Petitioners.
         Frederick R. Bennett for Respondent.
         No appearance for Real Parties in Interest.

                                       _________________________
       Petitioners Arich Syprasert and Boualirne Syprasert (plaintiffs in the underlying
action; hereafter plaintiffs) are seeking a mandate following the order rejecting an
affidavit of prejudice (Code Civ. Proc., § 170.6) 1 by Judge Rolf M. Treu. The affidavit
was filed on November 21, 2013, immediately after notice that the case was assigned to
Judge Treu.
       On December 3, 2013, Judge Treu rejected the affidavit, finding the signature on
the document not in conformity with section 2015.5 2 because counsel for plaintiff, Steven
L. Zelig, authorized his secretary to sign the affidavit.
       This petition was timely filed on December 13, 2013. 3
       On January 8, 2014, this court notified the respondent court that the affidavit of
prejudice had been improperly rejected because it is well established law that: “If one
requests another to sign a document for him and such signature . . . is acknowledged by


1
       Statutory references are to the Code of Civil Procedure.
2
         Section 2015.5 provides: “Whenever, under any law of this state or under any
rule, regulation, order or requirement made pursuant to the law of this state, any matter is
required or permitted to be supported, evidenced, established, or proved by the sworn
statement, declaration, verification, certificate, oath, or affidavit, in writing of the person
making the same (other than a deposition, or an oath of office, or an oath required to be
taken before a specified official other than a notary public), such matter may with like
force and effect be supported, evidenced, established or proved by the unsworn
statement, declaration, verification, or certificate, in writing of such person which recites
that it is certified or declared by him or her to be true under penalty of perjury, is
subscribed by him or her, and (1), if executed within this state, states the date and place
of execution, or (2), if executed at any place, within or without this state, states the date
of execution and that it is so certified or declared under the laws of the State of
California.”
3
       “The determination of the question of disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the appropriate
court of appeal sought only by the parties to the proceeding. The petition for the writ
shall be filed and served within 10 days of notice to the parties of the decision and only
by the parties to the proceeding.” (§ 170.3, subd. (d).) The time limitation applies to all
motions to disqualify, including motions seeking disqualification for cause. (People v.
Hull (1991) 1 Cal.4th 266, 269-276.)

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words or acts, that is all the law requires.” (Rich v. Ervin (1948) 86 Cal.App.2d 386,
395.) We therefore give the respondent court notice of our intention to grant a
peremptory writ of mandate in the first instance (Palma v. U.S. Industrial Fasteners, Inc.
(1984) 36 Cal.3d 171, 180) directing the respondent court to vacate its order of December
3, 2013, and accept the valid and timely filed affidavit of prejudice or to comply with the
procedure set forth in Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010)
47 Cal.4th 1233.
       Despite the long established standard that an affidavit of prejudice filed pursuant
to section 170.6 “should be liberally construed with a view to effect its objects and to
promote justice” (Eagle Maintenance & Supply Co. (1961) 196 Cal.App.2d 692, 694-
695), Judge Treu court declined to accept the timely filed affidavit of prejudice and
responded to our notice, by letter, stating an argument that an attorney must sign an
affidavit of prejudice “by his own hand.”
       We hold the argument made by the respondent court is both inapplicable and
contrary to statutory and case law. Accordingly, we conclude the petition for writ of
mandate must be granted.
                                       DISCUSSION
       1. A signature authorized by another is valid.
       It is not disputed that counsel for plaintiff authorized his assistant to execute the
affidavit of prejudice (§ 170.6) seeking a judicial officer other than Judge Treu. Such an
authorized signature has been recognized in the context of real estate transactions in
which the statute of frauds in strictly applied. (Rich v. Ervin, supra, 86 Cal.App.2d at
p. 395, regarding validity of signature on deed.) Further, it is established that even on a
promissory note an authorized signature is recognized as valid. (Yates v. Dyer (1926)
76 Cal.App. 288, 290.)
       In response to notice of our intended decision to direct acceptance of the affidavit
of prejudice, Judge Treu provided a letter with a citation to Stockinger v. Feather River
Community College (2003) 111 Cal.App.4th 1014 in which the issue was whether
transcripts of telephone conversations between plaintiff’s investigator and witnesses were

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admissible as declarations sufficient to defeat summary judgment. Even though the
witnesses verbally declared their statements to be true, Stockinger held the transcripts
were inadmissible because there was no certification by any of the witnesses and the
declarant had not subscribed the documents. The facts in Stockinger are substantially
different in that no document in that case contained an authorized signature. Clearly,
Stockinger is inapplicable to an affidavit executed by a person who had received the legal
authority to sign the statement.
       The signature on the affidavit of prejudice was made at the direction and the
authority of petitioner’s counsel. As such, the signature is valid and sufficient to support
the affidavit. (Rich v. Ervin, supra, 86 Cal.App.2d at p. 395; Yates v. Dyer, supra,
76 Cal.App. at p. 290.) The order rejecting the affidavit of prejudice is an abuse of
discretion in view of the specific mandate that the statue is to be liberally construed, with
a view to effect its objects and to promote justice. (Eagle Maintenance & Supply Co.
(1961) 196 Cal.App.2d 692, 694-695.)
       2. Prior relevant proceedings.
       Petitioner requested judicial notice of two prior appellate proceedings concerning
the pattern of conduct of Judge Treu in connection with denial of affidavits of prejudice
filed pursuant to section 170.6 based on what he perceived as imperfections in the
affidavits. We granted judicial notice of those proceedings but, at that time, concluded
those documents were more relevant to an affidavit of prejudice filed for cause (§ 170.3)
rather than to an affidavit filed as a matter of right under section 170.6.
       Subsequent proceedings in this matter caused this court to reconsider the
relevancy issue in that the prior proceedings reflect Judge Treu’s pattern of conduct in
searching an affidavit of prejudice in order to find a minor hypertechnical deficiency in
the document and the rejection of a timely filed section 170.6 .affidavit of prejudice. We
therefore conclude the prior proceedings are relevant.
       In the first appellate proceeding (B224404), Judge Treu rejected a timely filed
affidavit of prejudice because the petitioners’ counsel had misspelled the judge’s last
name. Division Eight of the Second Appellate District issued an alternative writ of

                                              4
mandate and order directing the respondent court to vacate its order rejecting the
peremptory challenge because of the misspelling of the name, to reconsider the affidavit
of prejudice on the merits or, in the alternative, show cause why it should not be ordered
to do so. Judge Treu selected the first alternative and vacated his original order. As a
result, the petition was dismissed.
       However, that did not resolve the matter; Judge Treu court again rejected that
same affidavit of prejudice, on the ground that petitioner’s counsel stated only a “belief”
that Judge Treu was prejudiced against his clients and did not expressly assert that Judge
Treu was prejudiced. This is, of course, directly contrary to the exact language in section
170.6 which requires only a statement that the party or the attorney “believes that he or
she cannot, have a fair and impartial trial or hearing” before the challenged judicial
officer. Judge Treu’s action resulted in the filing of a second petition for writ of mandate
(B224980); once again, Division Eight of the Second Appellate District directed Judge
Treu to vacate the order rejecting the peremptory challenge, specifically holding the
affidavit of prejudice satisfied the statutory requirements. 4
       In the current proceeding, Judge Treu again purports to find a technical deficiency
in the affidavit of prejudice in that petitioner’s counsel authorized another person to
execute the affidavit. Judge Treu’s repeated pattern of declining a timely filed affidavit
of prejudice, of course, resulted in the filing of this petition. Even though our order of
January 8, 2014 gave him the opportunity to correct his order and/or to obtain briefing as
to the validity of the stated reason for rejection of the section 170.6 affidavit of prejudice
by following the procedures set forth in Brown, Winfield & Canzoneri, Inc. v. Superior
Court, supra, 47 Cal.4th 1233, Judge Treu declined to take any steps other than
continuing to reject the timely filed affidavit of prejudice.




4
       We note that both of the prior appellate proceedings involved Steven Zelig, the
attorney who represents plaintiffs in this matter.
                                               5
       3. Standard of review.
       The Code of Civil Procedure “establishes the law of this State respecting the
subjects to which it relates, and its provisions and all proceedings under it are to be
liberally construed, with a view to effect its objects and to promote justice.” (§ 4.)
       There is a substantial body of law specifically applying section 4 to an affidavit of
prejudice filed pursuant to section 170.6, thereby establishing without doubt that such
affidavit is to be liberally construed. (See, e.g., People v. Superior Court
(Cooper)(2003)114 Cal.App.4th 713, 718.) The only requirement is that the affidavit
state a belief that the judge before whom the trial is pending is prejudiced against either
the party or his attorney, or the interest of such party or his attorney so that affiant
believes he cannot have a fair and impartial trial or hearing before the named judicial
officer. No facts are required to be set forth supporting the charge of prejudice; the
affidavit is sufficient if there is only a stated belief as to the existence of prejudice even
though such prejudice may not, in fact, exist. (Eagle Maintenance & Supply Co., supra,
196 Cal.App.2d at pp. 694-695.)
       The right to a peremptory challenge provided in section 170.6 confers a significant
right upon the parties and has long been an important part of the system of due process
and fair play. (Paredes v. Superior Court (1999) 77 Cal.App.4th 24, 36, citing McCauley
v. Superior Court (1961) 190 Cal.App.2d 562, 567.)
        Section 170.6 “is to be fairly applied so as to achieve its beneficent purpose.”
(Fairfield v. Superior Court (1963) 216 Cal.App.2d 438, 444.) An affidavit of prejudice
should not be denied where the affidavit is in substantial compliance with the
requirements set forth in section 2015.5. (McCauley v. Superior Court, supra,
190 Cal.App.2d at pp.5 564-565.)
        Clearly, justice is not served when a litigant is penalized by a minor imperfection
or by a judicial officer’s overly strict and hypertechnical interpretation of the terms of a
statute, especially where, as here, the law specifically states the statute must be liberally
interpreted in order to achieve fairness and justice.


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                                        DISPOSITION
       The petition for writ of mandate is granted. Let a peremptory writ of mandate
issue directing the respondent court to (1) vacate the order entered on December 3, 2013;
(2) accept the affidavit of prejudice; and (3) immediately arrange for transfer of the entire
case to a different judicial officer.
       No costs are awarded in this proceeding.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KLEIN, P. J.

We concur:




                      CROSKEY, J.




                      ALDRICH, J.




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