Full Opinion

Filed 11/9/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) J.O., C102071 Petitioner, (Super. Ct. No. STK-MH- v. LPSC-2016-0000110) THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, OPINION ON REMAND Respondent; SAN JOAQUIN COUNTY PUBLIC CONSERVATOR, Real Party in Interest. ORIGINAL PROCEEDING in Mandate. Kristine Eagle, Judge. Petition granted. Judyanne D. Vallado, Public Defender, Janis D. Everett and Nelson C. Lu, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Jonathan N. King, Chief Deputy County Counsel for Real Party in Interest. Petitioner J.O., who is the subject of a conservatorship, opposed a motion to disqualify Judge Erin Guy Castillo under Code of Civil Procedure section 170.61 filed by 1 Code of Civil Procedure section 170.6 authorizes any party or attorney to compel the disqualification of a judge by signing an affidavit or orally stating under oath that the judge is “prejudiced” against the party, attorney, or their respective interests. 1 the San Joaquin County Public Conservator (Public Conservator), represented by the San Joaquin County Office of the County Counsel (County Counsel).2 The opposition asserted that County Counsel had begun filing “blanket [§] 170.6” motions in all cases assigned to Judge Guy Castillo in which the Public Conservator was a party, and argued that the blanket motions improperly intruded into the independence of the judicial branch. The trial court overruled J.O.’s objection on the basis that blanket section 170.6 challenges were permitted under our Supreme Court’s holding in Solberg v. Superior Court (1977) 19 Cal.3d 182 (Solberg). This court subsequently denied writ relief. The California Supreme Court granted review and issued an opinion reversing Solberg in part, and it remanded the matter to this court for consideration of whether any further proceedings are necessary in light of its opinion. (J.O. v. Superior Court (2026) 19 Cal.5th 753 (J.O.).) We issued an order to show cause. In response to the order to show cause, County Counsel argues the case is moot. We disagree with County Counsel and will issue a writ directing the respondent court to vacate its order granting County Counsel’s section 170.6 motion, and to hold a hearing consistent with the procedure set forth in J.O., supra, 19 Cal.5th at pages 782 to 785. PROCEDURAL HISTORY Procedural Issue In response to the order to show cause, County Counsel filed a document labeled “response” that was in the form of an unverified legal brief and contained only an argument that the case was moot. This was not the proper procedure. “If the court issues an alternative writ or order to show cause, the respondent or any real party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both.” 2 Further undesignated statutory references are to the Code of Civil Procedure. 2 (Cal. Rules of Court, rule 8.487(b)(1); see also § 1089 [when the court issues an alternative writ, “the party upon on whom the writ … has been served may make a return by demurrer, verified answer or both”].) “The submission of ‘a return with a verified answer or demurrer is not a technicality, but is an integral and critical step in the procedure for determining the merit of a petition for extraordinary relief.’ ” (Agricultural Labor Relations Bd. v. Superior Court (2016) 4 Cal.App.5th 675, 681.) In the absence of a true return, we will treat County Counsel’s response as a demurrer, in which “ ‘all well- pleaded and verified allegations of the writ petition are accepted as true.’ ” (Id. at p. 682.) Underlying Facts The facts alleged in J.O.’s petition for writ of mandate are as follows. J.O. has been subject to a conservatorship since 2016. The Public Conservator, represented by County Counsel, was his conservator. In December 2023, Judge Guy Castillo was assigned to the department of the San Joaquin County Superior Court where most cases related to mental health were heard. Beginning in May 2024, County Counsel began a practice of filing “ ‘blanket’ ” motions under section 170.6 against Judge Guy Castillo. On July 10, 2024, County Counsel filed on behalf of the Public Conservator a petition to be ratified as J.O.’s conservator for one more year. On the same day, County Counsel filed a section 170.6 motion against Judge Guy Castillo. Judge Guy Castillo denied the motion as premature. On July 29, J.O. filed a petition to have the Public Conservator removed as his conservator, and to have his sister appointed as successor conservator. On August 9, County Counsel filed another section 170.6 motion to remove Judge Guy Castillo from J.O.’s case, which was granted. J.O. filed an opposition to County Counsel’s section 170.6 motion. The opposition asserted that County Counsel’s practice of filing blanket section 170.6 challenges began after Judge Guy Castillo had admonished an attorney from the County 3 Counsel’s office for improper conduct, and appeared intent on forcing Judge Guy Castillo from her assignment. Indeed, Judge Guy Castillo was reassigned to another department later that month. The trial court overruled J.O.’s objection to the section 170.6 motion, concluding that the objection was barred under Solberg, supra, 19 Cal.3d 182, in which our Supreme Court concluded that blanket challenges to judges under section 170.6 did not unconstitutionally interfere with the core functions of the judicial branch. (Solberg, at p. 204.) Petition for Writ of Mandate and Supreme Court Opinion J.O. filed a petition for writ of mandate requesting that this court express its disagreement with Solberg and urge the Supreme Court to revisit Solberg’s reasoning with respect to blanket section 170.6 challenges. Additionally, the petition requested that this court, if authorized by the Supreme Court, either issue a writ compelling the trial court to vacate its order granting the section 170.6 motion filed by County Counsel and to enter a different order denying the section 170.6 motion, or alternatively to issue a writ directing the trial court to show cause why the prayed for relief should not be granted. A different panel of this court summarily denied the petition. Our Supreme Court granted the petition for review and issued an opinion overruling Solberg in part. (J.O., supra, 19 Cal.5th 753.) The court did not question the facial constitutionality of section 170.6’s procedure when used as intended, but overruled Solberg to the extent that case concluded blanket abuses of section 170.6 are immune from as-applied challenges based on separation of powers grounds. (J.O., at p. 763.) The court explained that blanket section 170.6 challenges may unconstitutionally interfere with “a ‘core judicial function’ of court administration” by “permitting a party to unilaterally decide, for improper reasons, that a judge cannot oversee all or a substantial portion of cases … to which he or she is assigned.” (J.O., at p. 774.) Indeed, the court pointed to the facts in this case, in which County Counsel had filed an estimated 325 4 section 170.6 challenges to Judge Guy Castillo in the span of less than four months. (J.O., at p. 761.) The J.O. court established a three-step burden-shifting procedure for determining whether a section 170.6 challenge is unconstitutional. First, the opponent of the section 170.6 motion must timely object “and demonstrate a prima facie case that the motion’s proponent is lodging bad faith blanket challenges against a particular judge. More specifically, the opponent of a section 170.6 motion must show ‘ “ ‘that the totality of the relevant facts gives rise to an inference of [a bad faith blanket policy],’ ” ’ as opposed to a good faith belief that a judge is prejudiced in a specific case.” (J.O., supra, 19 Cal.5th at pp. 782-783.) “Among the factors that may be considered in making this prima facie determination are whether the party has lodged persistent strikes against the same judge in all or a substantial portion of cases assigned to that judge, or all or a substantial portion of cases of a particular type. Such a showing may alone be persuasive in establishing a prima facie case of a bad faith blanket policy.” (Id. at p. 783.) The court noted that “[w]hile it is impossible to chronicle all the facts and circumstances that might combine to establish a prima facie case of a party’s bad faith blanket policy to disqualify a particular judge,” case law had provided some examples of such circumstances, including a dramatic increase in section 170.6 challenges after an adverse ruling by the judge (J.O., at p. 783, citing People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 897-898), or a written policy to always challenge a specific judge without a good faith belief that the judge was prejudiced (J.O., at p. 783, citing McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 538, fn. 13), or an express acknowledgement of a blanket challenge policy (J.O., at p. 783, citing Solberg, supra, 19 Cal.3d at p. 207 (conc. & dis. opn. of Tobriner, Acting C.J.)). If the opponent establishes a prima facie case of a bad faith blanket policy, a hearing shall be conducted before a judge other than the judge named in the motion. (J.O., supra, 19 Cal.5th at p. 784.) At the hearing, the proponent of the motion has the 5 burden to justify the challenge by providing a good faith basis for its belief that the challenged judge is personally prejudiced against the party. (Ibid.) The proponent need not prove that the judge is prejudiced, but rather must establish facts or circumstances related to a specific case that support a good faith belief that the judge is prejudiced; in other words, that the proponent’s reasons for believing that the judge is prejudiced are subjectively genuine. (Ibid.) If the proponent provides an explanation for the section 170.6 motion, then the court must decide whether the opponent has proven a bad faith blanket policy. (J.O., supra, 19 Cal.5th at p. 784.) If the court decides that the motion was made in bad faith, then the court should deny the motion, and the case will remain with the judge named in the motion. (Ibid.) If the court decides the proponent’s allegations of prejudice were made in good faith, then the court must grant the section 170.6 motion and reassign the case to a different judge than the judge named in the motion. (J.O., at pp. 784-785.) The Supreme Court remanded the matter to this court with directions to consider whether any further proceedings are necessary in light of its opinion. (J.O., supra, 19 Cal.5th at p. 785.) We issued an order to show cause ordering County Counsel to show why the relief prayed for in the proceeding should not be granted. In response to the order to show cause, County Counsel filed a “response” that argued the case was moot, and J.O. filed a traverse. DISCUSSION I. Mootness County Counsel argues that the case is moot because the Public Conservator is no longer a party to the underlying matter after the trial court appointed a successor trustee 6 in September 2024, and because Judge Guy Castillo is no longer a judge of the San Joaquin County Superior Court.3 We conclude the case is not moot. “ ‘A case is considered moot when “the question addressed was at one time a live issue in the case” but has been deprived of life “because of events occurring after the judicial process was initiated.” [Citation.] “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” ’ ” (Cohen v. Superior Court (2024) 102 Cal.App.5th 706, 714, review granted Sept. 18, 2024, S285484.) “For relief to be ‘effective,’ two requirements must be met. First, the plaintiff must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks.” (In re D.P. (2023) 14 Cal.5th 266, 276.) Initially, J.O. complains of an ongoing harm. J.O.’s conservatorship remains active, and the order granting County Counsel’s section 170.6 motion remains in effect whether or not the Public Conservator is J.O.’s conservator.4 As long as that order remains in effect, Judge Guy Castillo is prohibited from presiding over proceedings related to J.O.’s conservatorship. Vacating the order granting the section 170.6 motion and providing J.O. with the opportunity to advocate for denying the motion would redress the harm because denying the motion would authorize the reassignment of Judge Guy Castillo to J.O.’s conservatorship proceedings should she return to the San Joaquin County Superior Court at the conclusion of her tenure as a federal magistrate judge, however remote that possibility is. Additionally, a determination whether County 3 The Supreme Court observed that Judge Guy Castillo’s reassignment in the superior court did not moot the issue because the operative disqualification order may still be vacated if J.O. prevails. (J.O., supra, 19 Cal.5th at p. 763, fn. 3.) 4 Moreover, although the Public Conservator is not currently J.O.’s conservator, it is possible that the Public Conservator could substitute in as J.O.’s conservator in the future. 7 Counsel’s section 170.6 motion was made in bad faith, requiring the order granting that motion to be vacated and a new order denying the motion to be entered, would clarify for the parties whether J.O.’s current conservator, or the Public Conservator should he substitute back in as J.O.’s conservator, could exercise a section 170.6 motion in the future. (See § 170.6, subd. (a)(4).) Even if the case were moot, we would exercise our “ ‘inherent discretion’ to reach the merits of the dispute.” (In re D.P., supra, 14 Cal.5th at p. 282.) We may exercise our discretion to review a moot case when “ ‘the case presents an issue of broad public interest that is likely to recur,’ ‘when there may be a recurrence of the controversy between the parties,’ or ‘when a material question remains for the court’s determination.’ ” (Ibid.) First, as we discussed previously, the determination of whether J.O.’s conservator could file another section 170.6 motion, and whether Judge Guy Castillo could be reassigned to the case at a later time, are material questions remaining for the court’s determination. Moreover, this case involves an issue of broad public interest that is likely to recur. County Counsel filed an estimated 325 section 170.6 motions against Judge Guy Castillo in a period of less than four months; whether those motions were made in bad faith is of interest to the parties in those cases. More broadly, County Counsel is a public entity that acts as legal counsel for the county, the county board of supervisors, and all county officers. (Gov. Code, § 27640 et seq.) Whether County Counsel engaged in a months-long strategic campaign to repeatedly disqualify a sitting judge for the bad faith purpose of forcing her reassignment is an issue that is relevant to not only the individuals affected by County Counsel’s alleged campaign, but to the broader public. There is also reason to believe County Counsel may act similarly in the future in the absence of a trial court’s determination whether its conduct was improper. County Counsel continues to argue that its repetitive section 170.6 motions were made in good faith. Indeed, County Counsel filed a motion for sanctions against the public defender’s 8 office for opposing the section 170.6 motion in this case, which asserted that the objection to the section 170.6 motion was a “meritless and frivolous” motion that was “simply a baseless attempt at harassing the San Joaquin County Public Conservator for exercising his rights under the law.” While we recognize that any future section 170.6 motions filed by County Counsel could be challenged under the procedure set forth in J.O., supra, 19 Cal.5th at pages 782 to 785, a ruling on whether County Counsel’s repetitive section 170.6 motions against Judge Guy Castillo were made in bad faith would have the effect of clarifying the law for County Counsel before the need for future litigation arises. As a final note, “[b]ecause dismissal of an appeal for mootness operates as an affirmance of the underlying judgment or order [citation], such dismissals may ‘ “ha[ve] the undesirable result of insulating erroneous or arbitrary rulings from review.” ’ ” (In re D.P., supra, 14 Cal.5th at p. 285; see id. at p. 286 [indicating an appellate court may entertain a moot appeal to “serve the interest of justice”].) Here, while the trial court’s order granting County Counsel’s section 170.6 motion was legally correct at the time it was made, our Supreme Court has determined that “blanket abuses of section 170.6 now unconstitutionally interfere with the ‘ “effective administration of justice” ’—a ‘core judicial function’ of court administration—by permitting a party to unilaterally decide, for improper reasons, that a judge cannot oversee all or a substantial portion of cases, or all or a substantial portion of cases of a particular type, to which he or she is assigned.” (J.O., supra, 19 Cal.5th at p. 774.) The interest of justice is served by allowing the parties to litigate the issue of whether County Counsel’s conduct unconstitutionally interfered with the effective administration of justice. II. Remedy In J.O., our Supreme Court recognized that the trial court barred J.O.’s objection to County Counsel’s alleged blanket section 170.6 challenges to Judge Guy Castillo without considering his specific allegations. (J.O., supra, 19 Cal.5th at p. 785.) In his 9 traverse, J.O. acknowledges that he has not previously alleged that County Counsel’s section 170.6 motions were made in bad faith, instead arguing that blanket section 170.6 motions always violated the separation of powers doctrine. Accordingly, no court has yet determined whether J.O. established a prima facie case of a bad faith blanket policy, provided County Counsel with the opportunity to justify the section 170.6 motion, or determined whether County Counsel’s motion was made in bad faith. We will issue a writ directing the respondent court to vacate its order granting County Counsel’s section 170.6 motion, and to hold a hearing consistent with the procedure set forth in J.O. to determine whether the section 170.6 motion was made in bad faith. DISPOSITION Let a peremptory writ of mandate issue directing the respondent court to vacate the order of August 12, 2024, in superior court case No. STK-MH-LPSC-2016-0000110, entitled Conservatorship of the Person of [J.O.], granting the motion for disqualification of Judge Guy Castillo under affidavit or declaration of prejudice, and hold a hearing consistent with the procedure set forth in J.O., supra, 19 Cal.5th at pages 782 to 785. Costs are denied in the interests of justice. (Cal. Rules of Court, rule 8.493(a)(1)(B).) /s/ EARL, P. J. We concur: /s/ KRAUSE, J. /s/ BOULWARE EURIE, J. 10