City of San Diego v. Super. Ct. CA4/1
- Proceeding
- original
- Outcome
- writ granted — Let a writ of mandate issue directing the trial court: (1) to vacate all orders granting peremptory challenges that were filed under Code of Civil Procedure section 170.6 after November 14, 2014; and (2) to reassign the case to Hon.
- Area
- civil
- Panel
- Gilbert Nares (author), Alex C. McDonald, McINTYRE
Analysis
The trial court granted successive peremptory challenges to judges by three co-defendants, effectively allowing multiple challenges from the same side. The Court of Appeal granted a writ of mandate, holding that only one peremptory challenge is permitted per side under Code of Civil Procedure section 170.6, and ordered the case reassigned to the second judge.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Granting of peremptory challenges to Judges Meyer, Hayes, and Strauss by co-defendants Living Green, Weaver, and Brown.“We conclude the trial court clearly erred by granting Living Green, Weaver, and Brown more than one peremptory challenge.” | unclear | error | agree with court The appellate court held that the trial court erred because the statute limits peremptory challenges to one per side, and the co-defendants constituted a single side as their interests were not substantially adverse. |
Issuance of a peremptory writ of mandate in the first instance without full briefing.“We further conclude issuance of a peremptory writ on the first instance is appropriate. The material facts are not in dispute, the applicable law is settled, no useful purpose would be served by full briefing and argument, and the City is clearly entitled to relief” | unclear | correct | agree with court The court determined that the facts were undisputed, the law was settled, and the petitioner was clearly entitled to relief, satisfying the requirements for a peremptory writ under Code of Civil Procedure section 1088. |
Authorities
- relied: Johnson v. Superior Court (1958) 50 Cal.2d 693 — The Legislature permitted only one challenge to each side to prevent abuse by parties seeking to delay trial or obtain a favorable judge.
- relied: The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025 — Where the interests of co-parties are not substantially adverse, they constitute one 'side' under the peremptory challenge statute.
- relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — Supports the standard for issuing a peremptory writ of mandate in the first instance when facts are undisputed and law is settled.
- relied: Fontaine v. Superior Court (2009) 175 Cal.App.4th 830 — Supports the appropriateness of a peremptory writ when no useful purpose would be served by full briefing and argument.
- relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Cited regarding the procedure for considering issuing a peremptory writ in the first instance.
The appellate opinion: sound — The opinion correctly applies the statutory limitation of one peremptory challenge per side to the specific facts where co-defendants shared a common interest. It appropriately cites binding authority to support both the substantive error and the procedural mechanism of a peremptory writ.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court granted successive Code of Civil Procedure section 170.6 peremptory challenges filed by a marijuana dispensary, its president, and its landlord, reassigning the City's injunction action three times and delaying the TRO hearing. The Court of Appeal issued a peremptory writ in the first instance directing the trial court to vacate all challenges granted after the first one and to reassign the case to Judge Meyer.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Orders granting the second and third section 170.6 peremptory challenges (by Weaver against Judge Meyer and by Brown's counsel against Judge Hayes) after co-defendant Living Green had already exercised a challenge against Judge Prager.“We conclude the trial court clearly erred by granting Living Green, Weaver, and Brown more than one peremptory challenge.” | de novo | error (statutory interpretation) | agree with court Section 170.6, subdivision (a)(4) limits each side to one peremptory challenge, and under Home Ins. Co. co-parties whose interests are not substantially adverse constitute a single side; the party seeking a separate challenge bears the burden of showing adversity. The defendants (dispensary operator, its president, and landlord) were all aligned in resisting the City's injunction and made no showing of adverse interests, and they did not respond to the writ petition, so the trial court erred in allowing more than one challenge for the defense side. The court's reading of the statute and reliance on Johnson and Home Ins. is correct. |
Authorities
- relied: Johnson v. Superior Court (1958) 50 Cal.2d 693 — The Legislature limited each side to one section 170.6 peremptory challenge to prevent abuse by parties seeking delay or a favorable judge.
- relied: The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025 — Co-parties whose interests are not substantially adverse constitute one side for purposes of the single-challenge limit in section 170.6.
- relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedure and notice requirements for issuing a peremptory writ in the first instance.
- relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate where facts are undisputed, law is settled, and petitioner's entitlement to relief is clear.
- relied: Fontaine v. Superior Court (2009) 175 Cal.App.4th 830 — Peremptory writ in the first instance is appropriate where no useful purpose would be served by full briefing and argument.
The appellate opinion: sound with gaps — The court correctly applied the plain text of section 170.6, subdivision (a)(4) and controlling Supreme Court authority (Johnson, Home Ins.) to undisputed facts, and the real parties offered no response. The opinion is conclusory in stating the co-defendants' interests were not substantially adverse without analyzing the landlord-tenant relationship, though the lack of any showing by the real parties makes the result defensible.
Opinion
Filed 12/31/14 City of San Diego v. Super. Ct. CA4/1 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.
COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF SAN DIEGO, D067154
Petitioner, (San Diego County Super. Ct. No. 37-2014-00037716-CU- v. MC-CTL)
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
LIVING GREEN COOPERATIVE, INC., et al., Real Parties in Interest.
ORIGINAL PROCEEDING in mandate. Ronald S. Prager, John S. Meyer, Judith F. Hayes, and Richard E.L. Strauss, Judges. Petition granted.
Jan I. Goldsmith, City Attorney, Marlea Dell'Anno, Assistant City Attorney, and Marsha B. Kerr, Deputy City Attorney, for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest. Petitioner the City of San Diego (the City) challenges orders granting successive peremptory challenges to judges of respondent San Diego County Superior Court (the trial court) filed by real parties in interest Living Green Cooperative, Inc. (Living Green), its president, Cary Weaver, and its landlord, Bradley Brown. We grant the petition.
BACKGROUND
The City filed a complaint against Living Green, Weaver, and Brown in the trial court on November 4, 2014, to enjoin operation of a marijuana dispensary by Living Green and Weaver on premises owned by Brown. The case was initially assigned to Hon. Ronald S. Prager. The City calendared for November 19 a hearing before Judge Prager on an application for a temporary restraining order (TRO), and then personally served copies of the summons, complaint, and TRO papers on Living Green, Weaver, and Brown.
A series of peremptory challenges under Code of Civil Procedure section 170.6 followed service of process.
Living Green filed a peremptory challenge to Judge Prager on November 14, and the case was reassigned to Hon. John S. Meyer on November 17.
Weaver filed a peremptory challenge to Judge Meyer on December 2, and the case was reassigned to Hon. Judith F. Hayes on December 4.
Nathan A. Shaman, the attorney representing Brown, filed a peremptory challenge to Judge Hayes on December 5, and the case was reassigned to Hon. Richard E.L. Strauss on December 10.
Brown filed a peremptory challenge to Judge Strauss on December 10, but no action has yet been taken on that challenge.
2 After the peremptory challenge to Judge Hayes had been filed but before it was granted, the City filed an ex parte application with Judge Hayes for an order returning the case to Judge Meyer on the ground the real parties in interest were limited to one peremptory challenge. That application was never ruled on.
Frustrated by the successive peremptory challenges from having its TRO application timely heard, the City petitioned this court for writ of mandate directing the trial court to set aside the orders granting the peremptory challenges that were filed after the challenge to Judge Prager and to reassign the case to Judge Meyer. We stayed further proceedings in the trial court and notified the parties we were considering issuing a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984)
36 Cal.3d 171, 178-180.) Living Green, Weaver, and Brown did not file a response.
DISCUSSION
We conclude the trial court clearly erred by granting Living Green, Weaver, and Brown more than one peremptory challenge. The peremptory challenge statute expressly permits only one challenge per side: "In actions or special proceedings where there may be may be . . . more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding." (Code Civ. Proc., § 170.6, subd. (a)(4), italics added.) Recognizing the "possibility that the section may be abused by parties seeking to delay trial or to obtain a favorable judge," the Legislature "permit[ted] only one challenge to each side." (Johnson v. Superior Court (1958) 50 Cal.2d 693, 697.) Where, as here, the interests of co-parties are not substantially adverse, they constitute one "side" under the peremptory challenge 3 statute. (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1035.) Thus, the peremptory challenges subsequent to the challenge to Judge Prager were impermissible.
We further conclude issuance of a peremptory writ on the first instance is appropriate. The material facts are not in dispute, the applicable law is settled, no useful purpose would be served by full briefing and argument, and the City is clearly entitled to relief so that it may have its TRO application heard in a timely manner. (See Code Civ.
Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 842.)
DISPOSITION
Let a writ of mandate issue directing the trial court: (1) to vacate all orders granting peremptory challenges that were filed under Code of Civil Procedure section 170.6 after November 14, 2014; and (2) to reassign the case to Hon. John S.
Meyer. The stay previously issued by this court is dissolved. This decision shall become final as to this court upon filing of the opinion. The City is entitled to its costs of this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
McDONALD, J.
Cites, in this corpus
- Fontaine v. Superior Court H033811 · 2009-06-10
- Home Ins. Co. v. Superior Court S110328 · 2005-01-13
- Lewis v. Superior Court S061240 · 1999-02-08
- Palma v. U.S. Industrial Fasteners, Inc. L.A. No. 31725 · 1984-06-07
- Johnson v. Superior Court L. A. 24942 · 1958-08-19