Case Number: BC396785    Hearing Date: April 24, 2014    Dept: 1

#1 – Young v. Los Angeles Community College District (BC 396 785)

Plaintiff Selwyn Lord Young (Young) was removed from his position as head baseball coach of the Los Angeles City College (LACC) on October 5, 2007. Young filed a charge of discrimination with the Department of Fair Employment and Housing (DFEH) in November of 2007, was eventually issued a right-to-sue letter, and then filed the present action on August 21, 2008. Young pled various counts of racial discrimination, sexual harassment, failure to prevent harassment/discrimination, and “whistleblower” retaliation against the LACC. Retaliation was the only count on which a jury found LACC liable to Young in a February 17, 2011 special verdict. The jury awarded Young over one million dollars in damages, and Judge Maureen Duffy-Lewis entered judgment against the LACC on March 29, 2011, on the jury’s verdict. The LACC moved for a new trial based on the insufficiency of the trial evidence to support the jury’s verdict, but Judge Duffy-Lewis denied the motion. Judge Duffy-Lewis also granted Young attorney fees.

The post-judgment order and the judgment itself were appealed by the LACC for prejudicial instructional and evidentiary errors in June and August of 2011. On January 3, 2014, the appellate court remitted the case to Judge Duffy-Lewis for a limited new trial on Young’s retaliation claims and with a reversal of the attorney fees award. However, on December 18, 2013, prior to the appellate court’s issuance of the Remittitur, the LACC peremptorily challenged Judge Duffy-Lewis’s reassignment to the case, which was first noticed on December 5, 2013 [See Department 38 Minute Order of December 5, 2013]. The LACC thus filed its CCP § 170.6(a)(2) challenge within thirteen (13) days of notice of Judge Duffy-Lewis’s reassignment. On January 6, 2014 – three days after the appellate court’s issuance of the Remittitur, Judge Duffy-Lewis accepted the LACC’s peremptory challenge as timely and reassigned the case to Judge Deirdre Hill in Department 49. Now, three months later, with a looming August 7, 2014 trial date, Young moves this court to transfer the case back to Judge Duffy-Lewis because LACC’s peremptory challenge is purportedly void, having been filed when the appellate court still had jurisdiction over this case, and also untimely, because it was not re-filed within sixty (60) days after the appellate court’s Remittitur issued.

Young specifies in his moving and reply papers that the issue is not whether Judge Duffy-Lewis’s acceptance of the LACC’s peremptory challenge was valid or proper. Rather, according to Young, the issue is composite. It first amounts to whether the LACC’s peremptory challenge was void for having been filed while the appellate court still had jurisdiction over this case; Young claims that filings made when the Superior Court has been divested of jurisdiction are of no effect. The issue is next concerned with whether the LACC missed the CCP § 170.6(a)(2) sixty-day (60-day) filing period for peremptory challenges after appeal since the void peremptory challenge was never re-filed. For this analysis, Young relies principally on Ghaffarpour v. Superior Court (2012) 202 Cal.App.4th 1463, which he interprets as standing for the proposition that the CCP § 170.6(a)(2) sixty-day (60-day) period begins to run when the Superior Court regains jurisdiction from the appellate court.

The LACC, however, rightly notes in its opposition that Ghaffarpour only holds that the time to file a peremptory challenge pursuant to CCP § 170.6(a)(2) begins when the party who filed the appeal has been notified of the assignment, and does not begin from the date of issuance of the Remittitur by the Court of Appeal. Ghaffarpour v. Superior Court (2012) 202 Cal.App.4th 1463, 1471. This holding is not the proposition asserted by Young, but it does comport entirely with LACC’s interpretation of the December 5, 2013 minute order noting the reassignment.

Young is thus only left with the contention that documents filed with the Superior Court during the pendency of the appellate court’s jurisdiction are void. But, as the LACC correctly observes, that contention is unsupported by any authorities, and seems to be at odds with the principle that the trial court – not the parties – is limited in what it can do throughout the pendency of an appeal. See Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641 (A duly perfected appeal divests the trial court of further jurisdiction in the cause except with respect to collateral matters.). The trial court, in this instance, did not trespass on the jurisdiction of the appellate court, since Judge Duffy-Lewis waited until three days after the Remittitur had issued to rule on the LACC’s peremptory challenge.

Furthermore, given the passage of time, the LACC cogently argues that Young has waived any defect in the December 18, 2013 peremptory challenge. Young is also, as the LACC persuasively contends, effectively asserting an improper CCP § 170.6 challenge of Judge Hill by way of this motion.

For all the reasons set forth by the opposition and the court’s own concerns regarding its discretion in this matter, the motion to transfer this case back to Judge Duffy-Lewis is DENIED.