gno.law

Palomar Health v. Super. Ct. CA4/1

California Court of Appeal · D077802 · 2020-08-28 · Unpublished

Area
civil
Panel
Cynthia Aaron (author), Patricia D. Benke, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:24Z · confidence high

The trial court denied Palomar Health's second motion to disqualify the judge, ruling it was untimely and an impermissible second motion per side. The Court of Appeal granted a peremptory writ, holding the motion was timely and that the one-motion-per-side rule is not triggered until a motion actually results in disqualification.

Ruling reviewedStandardThe courtThe model
Denial of the July 31, 2020 motion to disqualify the judge as untimely.
“The July 31 motion, filed three days after Palomar Health first appeared in the action, was therefore timely.”
de novoerroragree with court
The appellate court correctly applied the statutory deadline of Code of Civil Procedure section 170.6, subdivision (a)(2), which allows a defendant to file a peremptory challenge within 15 days of their first appearance. Since the motion was filed three days after the first appearance, it was statutorily timely, making the trial court's contrary ruling a clear error of law.
Denial of the July 31, 2020 motion to disqualify the judge as an impermissible second motion by the same side.
“Therefore, the limit of one motion per side is not met until a motion results in the disqualification of the assigned judge.”
de novoerroragree with court
The appellate court correctly interpreted Code of Civil Procedure section 170.6, subdivision (a)(4) in light of controlling precedent (Johnson v. Superior Court and The Home Ins. Co. v. Superior Court). The 'one motion per side' restriction is intended to prevent abuse through successive successful challenges; it does not bar a subsequent motion if the prior motion was denied for procedural defects and did not result in disqualification. The trial court erred by treating the initial denied motion as consuming the party's single right to challenge.

Authorities

  • relied: The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025 — When a party timely files a motion to disqualify a judge in proper form, the trial court is bound to accept the disqualification without further inquiry.
  • relied: Johnson v. Superior Court (1958) 50 Cal.2d 693 — The purpose of the one-motion-per-side rule is to prevent abuse by parties seeking to delay trial or obtain a favorable judge by filing successive disqualification motions.
  • relied: Stephens v. Superior Court (2002) 96 Cal.App.4th 54 — The Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice.
  • relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate when there are no material facts in dispute, the applicable law is settled, and the petitioner is clearly entitled to relief.
  • relied: Frisk v. Superior Court (2011) 200 Cal.App.4th 402 — Disqualification issues require prompt resolution, and no useful purpose would be served by plenary consideration of the issue.
  • relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedural authority for the court to consider issuing a peremptory writ in the first instance and invite a response from the real party in interest.

The appellate opinion: sound — The opinion is sound because it correctly applies the settled statutory interpretation of Code of Civil Procedure section 170.6, subdivision (a)(4), supported by binding Supreme Court precedent (The Home Ins. Co. v. Superior Court) that a 'duly presented' motion must result in disqualification to count against the one-motion-per-side limit. The court properly identifies that the initial motion was denied for a procedural defect rather than a substantive determination, thus preserving the party's right to file a corrected, timely motion.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

The superior court denied Palomar Health's second Code of Civil Procedure section 170.6 peremptory challenge, filed by its attorney three days after Palomar Health's first appearance, on the grounds that it was untimely and that only one motion per side is allowed, the first having been denied because the declaration was signed by counsel rather than by the party. The Court of Appeal issued a peremptory writ in the first instance directing the superior court to vacate the denial and grant the motion, holding the motion was timely under section 170.6, subdivision (a)(2) and that a motion denied for a procedural defect does not exhaust the one-motion-per-side limit.

Ruling reviewedStandardThe courtThe model
Denial of the July 31, 2020 peremptory challenge as untimely
“The July 31 motion, filed three days after Palomar Health first appeared in the action, was therefore timely.”
de novoerror (statutory interpretation)agree with court
Section 170.6, subdivision (a)(2) gives a defendant in an all-purpose assignment case 15 days from its first appearance to file the challenge. Palomar Health first appeared July 28 and the motion was filed July 31, so untimeliness was plainly wrong on undisputed facts. The opinion does not expressly state a standard of review but treats the question as one of law.
Denial of the July 31, 2020 peremptory challenge as an impermissible second motion by the same side under section 170.6, subdivision (a)(4)
“Palomar Health’s first motion, filed on July 28 as its first appearance in the underlying action, did not result in the disqualification of the assigned judge; it was denied for a perceived procedural defect.”
de novoerror (statutory interpretation)agree with court
The court read the one-motion-per-side rule in light of the statutory reference to a 'duly presented' motion and the purpose identified in Johnson and Home Ins. Co. of preventing successive challenges to obtain a favorable judge or delay. A motion rejected for a form defect never operated as a challenge, so the second filing by counsel was the side's first effective motion. The reasoning is consistent with the statute's text and the cited Supreme Court authority, and the opposing party did not contest the relief.
Denial of the July 28, 2020 peremptory challenge because the declaration was signed by counsel rather than by Palomar Health
“On July 29, the judge denied the motion because the “declaration [was] not signed by declarant (Palomar Health).””
unclearnot reached (procedure)agree with court
The Court of Appeal characterized this as a 'perceived procedural defect' but did not decide whether the denial was correct because relief on the July 31 motion made it unnecessary. Section 170.6, subdivision (a)(2) permits the motion to be made by the party 'or by any attorney' and the form motion is signed under penalty of perjury by counsel, so the first denial appears doubtful, but the court properly did not need to reach it.

Authorities

  • relied: The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025 — When a party timely files a section 170.6 motion in proper form, the trial court must accept the disqualification without further inquiry; the one-motion rule guards against abuse by successive challenges.
  • relied: Johnson v. Superior Court (1958) 50 Cal.2d 693 — The limit of one peremptory challenge per side exists to prevent abuse by parties seeking to delay trial or obtain a favorable judge.
  • relied: Stephens v. Superior Court (2002) 96 Cal.App.4th 54 — Section 170.6 guarantees litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice.
  • relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate where facts are undisputed, the law is settled, and petitioner is clearly entitled to relief.
  • relied: Frisk v. Superior Court (2011) 200 Cal.App.4th 402 — Peremptory writ in the first instance is appropriate to correct an erroneous denial of a section 170.6 challenge because disqualification issues require prompt resolution.
  • 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.

The appellate opinion: sound — The opinion applies the plain 15-day rule of section 170.6, subdivision (a)(2) and sensibly construes the one-motion-per-side limit in light of its anti-abuse purpose and the Supreme Court's instruction in Home Ins. Co. that a proper challenge must be accepted without further inquiry. It does not address whether the first denial for lack of a party signature was itself erroneous, but that omission does not affect the result since relief on the second motion fully remedies the problem.

How this analysis was made · dispute it

Opinion

Filed 8/28/20 Palomar Health 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 APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE

STATE OF CALIFORNIA

PALOMAR HEALTH, D077802

Petitioner, (San Diego County Super. Ct. No. 37-2020-00014034-CU-WT- v. CTL)

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

TERRI WIEDRE,

Real Party in Interest.

ORIGINAL PORCEEDING in mandate. Katherine A. Bacal, Judge. Petition granted. Fisher & Phillips and David E. Amaya, Megan E. Walker, and Kevonna Ahmad for petitioner. No appearance for respondent. Shegerian and Associates and Carney Shegerian for real party in interest. Palomar Health petitions for a writ commanding the superior court to grant a motion to disqualify the judge assigned to the civil action filed against it and others by Terri Wiedre. We grant the petition. BACKGROUND Wiedre sued Palomar Health and others in superior court for damages for employment discrimination, wrongful discharge, and other torts. The case was assigned for all purposes to a judge. On July 28, 2020, as its first appearance in the action, Palomar Health filed a motion to disqualify the judge (also called a peremptory challenge). (Code Civ. Proc., § 170.6.) The motion was in the form prescribed by statute (id., § 170.6, subd. (a)(6)), listed Palomar Health as the entity making the motion, checked the box for a party, and was signed under penalty of perjury by Palomar Health’s attorney, David E. Amaya. On July 29, the judge denied the motion because the “declaration [was] not signed by declarant (Palomar Health).” On July 31, Amaya submitted a second form motion to disqualify the judge, listing himself as the entity making the motion, checking the box for an attorney, and signing the form under penalty of perjury. The judge denied the motion and wrote on the order, “only one motion per side & untimely.” Palomar Health promptly petitioned this court for a writ directing the superior court to vacate the order denying the July 31 motion and to enter a new order granting it and requested a stay of further proceedings in the superior court until this court ruled on the petition. (Code Civ. Proc., § 170.3, subd. (d).) We granted the stay, notified the parties that we were considering issuing a peremptory writ in the first instance, and invited Wiedre to file a response to the petition. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180.) Wiedre responded that she did not oppose the relief that Palomar had requested.

2 DISCUSSION The superior court erred by denying as untimely the July 31 motion to disqualify. When a civil action has been assigned to a judge for all purposes, a defendant or an attorney representing the defendant may file a motion to disqualify the judge within 15 days of the defendant’s first appearance in the action. (Code Civ. Proc., § 170.6, subd. (a)(2).) The July 31 motion, filed three days after Palomar Health first appeared in the action, was therefore timely. The superior court also erred by denying the July 31 motion as an impermissible second motion by the same side. “In actions or special proceedings where there may be more than one plaintiff or similar party or 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.) Earlier in the same paragraph, the quoted statute refers to a “duly presented” motion, which “without any further act or proof” requires reassignment of the case to a different judge. (Ibid.) The purpose of the one- motion-per-side rule is to prevent “abuse[] by parties seeking to delay trial or to obtain a favorable judge” by filing successive disqualification motions. (Johnson v. Superior Court (1958) 50 Cal.2d 693, 697; accord, The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032.) Therefore, the limit of one motion per side is not met until a motion results in the disqualification of the assigned judge. (See Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 62 [“By enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice”].) Palomar Health’s first motion, filed on July 28 as its first appearance in the underlying action, did not result in the disqualification of 3 the assigned judge; it was denied for a perceived procedural defect. The second motion, filed three days later by Palomar Health’s attorney, was therefore not barred by the one-motion-per-side rule. Where, as here, “a party timely files, in proper form, a motion to disqualify a judge based upon [Code of Civil Procedure section 170.6], the trial court is bound to accept the disqualification without further inquiry.” (The Home Ins. Co. v. Superior Court, supra, 34 Cal.4th at p. 1032.) To correct the superior court’s error in refusing to do so, a peremptory writ in the first instance is appropriate. There are no material facts in dispute, the applicable law is settled, Palomar Health is clearly entitled to relief, disqualification issues require prompt resolution, and no useful purpose would be served by plenary consideration of the issue. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 416.)

4 DISPOSITION Let a writ issue commanding respondent, immediately upon receipt of the writ, to vacate its order denying the July 31, 2020 motion to disqualify (peremptory challenge) and to enter a new order granting the motion. The stay previously issued by this court will dissolve upon finality of this opinion. The parties will bear their own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B).) AARON, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

Cites, in this corpus