gno.law

Sizzler USA Restaurants v. Superior Court CA4/1

California Court of Appeal · D067889 · 2015-05-12 · Unpublished

Proceeding
writ
Trial judge
Judith F. Hayes
Outcome
writ granted — Petition granted.
Area
civil
Panel
McINTYRE (author), Alex C. McDonald, Judith L. Haller

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:17Z · confidence high

The trial court denied Sizzler's peremptory challenge to the assigned judge as untimely. The Court of Appeal granted a writ of mandate, finding the challenge was timely filed within 15 days of Sizzler's first appearance, and ordered the trial court to grant the challenge and reassign the case.

Ruling reviewedStandardThe courtThe model
Denial of peremptory challenge to judge as untimely
“The court's denial of Sizzler's peremptory challenge constituted prejudicial error.”
de novoerroragree with court
The appellate court determined that because Sizzler had not appeared in the action prior to the assignment, the 15-day clock for filing a peremptory challenge under Code of Civil Procedure section 170.6, subdivision (a)(2) began to run upon Sizzler's first appearance. Sizzler filed the challenge on April 2, which was within 15 days of its service of process and filing of the challenge (its first appearance). Therefore, the trial court's determination that the challenge was untimely was a misapplication of the statute, constituting prejudicial error.

Authorities

  • relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Establishes the procedure for issuing a peremptory writ in the first instance, including notifying parties and staying proceedings.
  • relied: Wilson v. Barry (1951) 102 Cal.App.2d 778 — Supports the proposition that filing a motion and declaration may constitute an appearance in an action.
  • relied: Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309 — Supports the conclusion that a timely and properly formed peremptory challenge must be granted by the superior court.
  • relied: Bambula v. Superior Court (1985) 174 Cal.App.3d 653 — Supports the conclusion that a timely and properly formed peremptory challenge must be granted and that a peremptory writ in the first instance is appropriate to correct the error.
  • relied: Entente Design, Inc. v. Superior Court (2013) 214 Cal.App.4th 385 — Establishes that the denial of a timely peremptory challenge constitutes prejudicial error.
  • relied: In re Robert P. (1981) 121 Cal.App.3d 36 — Establishes that the denial of a timely peremptory challenge constitutes prejudicial error.
  • relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — Establishes the standard for issuing a peremptory writ in the first instance when facts are not in dispute and the law is settled.

The appellate opinion: sound — The opinion is sound because it correctly applies the statutory timeline for peremptory challenges under Code of Civil Procedure section 170.6, subdivision (a)(2), specifically addressing the 'first appearance' trigger for parties not yet in the action. It relies on established case law to support both the timeliness determination and the appropriateness of a peremptory writ in the first instance.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The San Diego Superior Court judge assigned for all purposes denied Sizzler's Code of Civil Procedure section 170.6 peremptory challenge as untimely. The Court of Appeal held the challenge was timely because Sizzler filed it within 15 days of (and as) its first appearance, and issued a peremptory writ in the first instance directing the trial court to grant the challenge and reassign the case.

Ruling reviewedStandardThe courtThe model
Denial of Sizzler's Code of Civil Procedure section 170.6 peremptory challenge to the all-purpose assigned judge as untimely
“The challenge was therefore timely and in proper form, and the superior court was required to grant it.”
de novoerror (statutory interpretation)agree with court
The court did not expressly state a standard but treated timeliness as a question of law on undisputed facts, which is correct. Section 170.6, subdivision (a)(2) gives a party who has not yet appeared when an all-purpose assignment is made 15 days from its appearance to file the challenge. Sizzler had not appeared when the case was assigned on March 17, 2015; it was served on March 20 (the discussion section says March 30, an apparent internal inconsistency that does not affect the result) and filed the challenge on April 2, within 15 days of either date and as its first appearance. A timely challenge supported by the required declaration must be granted, and erroneous denial is prejudicial per se, as Zilog, Bambula, Entente Design and Robert P. hold. The peremptory writ in the first instance was properly issued under Palma and Lewis since facts were undisputed, the law settled, and the real party declined to respond.

Authorities

  • relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedure for issuing a peremptory writ in the first instance after notice to the parties and an opportunity to respond
  • relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate where material facts are undisputed, the law is settled, and petitioner is clearly entitled to relief
  • relied: Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309 — A timely section 170.6 challenge in proper form must be granted; the court has no discretion to deny it
  • relied: Bambula v. Superior Court (1985) 174 Cal.App.3d 653 — Timely peremptory challenge must be granted and writ relief is appropriate to correct erroneous denial
  • relied: Entente Design, Inc. v. Superior Court (2013) 214 Cal.App.4th 385 — Erroneous denial of a section 170.6 challenge is prejudicial error correctable by writ
  • relied: In re Robert P. (1981) 121 Cal.App.3d 36 — Improper denial of a peremptory challenge constitutes prejudicial error
  • relied: Wilson v. Barry (1951) 102 Cal.App.2d 778 — Filing a motion and declaration may constitute an appearance in the action

The appellate opinion: sound — The opinion correctly applies the plain text of section 170.6, subdivision (a)(2), which runs the 15-day period from a non-appearing party's first appearance, and relies on settled authority that a timely challenge must be granted and that denial is prejudicial per se. The only blemish is an internal inconsistency in the service date (March 20 in the background, March 30 in the discussion), which does not affect the outcome because the April 2 filing was within 15 days of either date.

How this analysis was made · dispute it

Opinion

Filed 5/12/15 Sizzler USA Restaurants v. Superior Court 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 APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SIZZLER USA RESTAURANTS, INC., D067889 Petitioner, (San Diego County Super. Ct. No. 37-2015-00009033-CU- v. WT-CTL)

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

KAREN BUSCH,

Real Party in Interest.

ORIGINAL PROCEEDING in mandate. Judith F. Hayes, Judge. Petition granted.

Fisher & Phillips LLP, Grace Y. Horoupian, Jimmie E. Johnson, and Collin D.

Cook for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Sizzler USA Restaurants, Inc. (Sizzler) filed a peremptory challenge to the judge assigned for all purposes to an action Karen Busch commenced against it. The assigned judge denied the challenge as untimely. Sizzler challenges the denial by a petition for a writ of mandate. We grant the petition.

BACKGROUND

On March 17, 2015, Busch filed an employment-related complaint for damages and other relief against Sizzler in the San Diego County Superior Court (the superior court). On that same date, the case was assigned to the Honorable Judith F. Hayes for all purposes. A summons was issued on March 18 and personally served on Sizzler on March 20. On April 2, Sizzler filed a peremptory challenge to Judge Hayes, pursuant to Code of Civil Procedure section 170.6. The challenge included a declaration from Sizzler's counsel stating Judge Hayes is so prejudiced against Sizzler or its counsel that it will not get a fair hearing before her. Judge Hayes denied the challenge on April 8 as untimely.

Sizzler challenged the denial by filing a petition for a writ of mandate in this court.

(See Code Civ. Proc., § 170.3, subd. (d).) We stayed further proceedings in the superior 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, 178-179.)

We also requested Busch file a response, but she declined to do so.

DISCUSSION

Sizzler's peremptory challenge was timely. Where, as here, a civil action is assigned to a judge for all purposes, a peremptory challenge "shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 2 days after that appearance." (Code Civ. Proc., § 170.6, subd. (a)(2), italics added.)

Sizzler had not yet appeared in the action when the all purpose assignment to Judge Hayes was made on March 17, 2015, or when it was given notice of that assignment when it was served with the summons and complaint on March 30. Nevertheless, Sizzler filed its peremptory challenge to Judge Hayes within 15 days of service, on April 2, apparently as its first appearance in the action. (See Code Civ. Proc., § 1014 [listing acts that constitute appearance]; Wilson v. Barry (1951) 102 Cal.App.2d 778, 781 [filing motion and declaration may constitute appearance].) The challenge was therefore timely and in proper form, and the superior court was required to grant it. (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315; Bambula v. Superior Court (1985)

174 Cal.App.3d 653, 658.) The court's denial of Sizzler's peremptory challenge constituted prejudicial error. (Entente Design, Inc. v. Superior Court (2013) 214 Cal.App.4th 385, 389; In re Robert P. (1981) 121 Cal.App.3d 36, 43.)

Issuance of a peremptory writ in the first instance is appropriate to correct the superior court's error. We notified the parties we were considering issuing a peremptory writ in the first instance and gave Busch an opportunity to respond. Since the material facts are not in dispute, the applicable law is settled, no useful purpose would be served by full briefing and argument, and Sizzler is clearly entitled to relief, a peremptory writ in the first instance will issue. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Bambula v. Superior Court, supra, 174 Cal.App.3d at p. 658.)

3 DISPOSITION

Let a writ issue commanding respondent to vacate its April 8, 2015 order denying the peremptory challenge as untimely, to enter a new order granting the challenge, and to reassign the case to a different judge. The stay this court issued on April 20, 2015, is dissolved. The parties shall bear their own costs of this writ proceeding.

MCINTYRE, Acting P. J.

WE CONCUR:

HALLER, J.

MCDONALD, J.

Cites, in this corpus