Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Superior Court of Riverside County No. INC039363 Randall D. White, Judge.
Akin Gump Strauss Hauer & Feld, Phillip J. Eskenazi, Bruce Jacobs, and Michael C. Small for Petitioner.
No appearance for Respondent.
Foley Bezek Behle & Curtis, Robert A. Curtis; Arias Ozzello & Gignac, Lisa Johnston Nicholes, and J. Paul Gignac for Real Party in Interest.
OPINION
HOLLENHORST J.
In this proceeding, we determine that the trial court’s determination of a class certification issue is not a ruling on a contested issue of fact relating to the merits of a case. Hence, an otherwise timely peremptory challenge under Code of Civil Procedure section 170.6 is effective even though it is filed after the challenged judge rules on a class certification motion. In this case, Judge Randall White rejected a peremptory challenge filed against him by petitioner AT&T Corp. (AT&T) in these precise circumstances. Accordingly, we grant AT&T’s petition and direct that the trial court set aside its denial.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
AT&T is a defendant in a civil action filed by Rochelle Saenz (Saenz). Earlier motions had been heard by Judge Lawrence Fry.
On July 23, 2007, Saenz filed a motion for class certification.
On August 17, 2007, AT&T filed opposition to the class certification motion.
Judge Fry retired about this time and the action was assigned to Judge White for all purposes on August 20, 2007. The notice of assignment indicated that any peremptory challenge to the reassignment must be made within 20 days of the date of the assignment, 15 days pursuant to Government Code section 68616, subdivision (i), plus five days pursuant to Code of Civil Procedure section 1013, subdivision (a).
Government Code section 68616, subdivision (i), requires a party to exercise a peremptory challenge within 15 days of the party’s first appearance in a direct calendar court. The statutory time period for filing a peremptory challenge to a newly assigned calendar judge commences when the parties receive notice of the assignment. (Motion Picture & Television Fund Hospital v. Superior Court (2001) 88 Cal.App.4th 488, 493–495.)
The parties appeared before Judge White for hearing on the class certification motion on August 31, 2007, and the motion was granted.
AT&T filed a peremptory challenge to Judge White on September 4, 2007. He denied it as untimely.
DISCUSSION
Saenz concedes that AT&T submitted its peremptory challenge to the trial court using the proper written format and within the 20-day time limit, but contends that Judge White acted appropriately in rejecting the challenge because it was filed after his ruling on her class certification motion. Because this ruling constituted a judicial determination regarding contested fact issues relating to the merits of the case, Saenz asserts that the challenge is precluded by the clause of section 170.6, which provides that “the fact that a judge . . . has presided at or acted in connection with a pretrial conference or other hearing, proceeding, or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion provided for herein . . . .” (§ 170.6, subd. (a)(2).)
The issue is squarely presented whether the ruling on the class certification motion is determination of a contested fact issue relating to the merits of the case. The principle support for the position that the ruling does relate to the merits is found in Fight for the Rams v. Superior Court (1996) 41 Cal.App.4th 953. There, the court held that the plaintiff’s failure to challenge the assigned judge before the hearing and rulings on a demurrer did not eliminate its right to make the challenge. However, the court offered its view that the hearings and tentative decision in California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267 to certify a class involved a determination of a contested fact issue relating to the merits within the meaning of section 170.6, subdivision (2). The courtbased its opinion on statements in two other cases: Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, and Carabini v. Superior Court (1994) 26 Cal.App.4th 239. In Hamwi, the Court of Appeal held that “[o]n a motion to certify class status of an action, it is the plaintiff’s burden to establish that in fact the requisites for continuation of the litigation in that format are present.” (Hamwi v. Citinational-Buckeye Inv. Co., supra, 72 Cal.App.3d at p. 471.) In Carabini,the court noted that the class certification decision frequently determines whether the case has continuing viability. (Carabini v. Superior Court, supra, 26 Cal.App.4th at p. 243; Fight for the Rams v. Superior Court, supra, 41 Cal.App.4th at p. 959, fn. 3.)
The Fight for the Rams pronouncement on the nature of a class certification ruling is unquestionably dicta on the issue because it was not necessary to the decision in that case. (Western Landscape Construction v. Bank of America (1997) 58 Cal.App.4th 57, 61.) Although Division Three of our court expressed a clear opinion on the exact issue that we are presented with in Fight for the Rams, we do not find it persuasive in light of subsequent Supreme Court decisions, which further describe the nature of a class certification ruling.
Our Supreme Court has indicated that the certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 439-440.) A trial court ruling on a certification motion determines whether “ ‘the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.’ ” (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) Indeed, our Supreme Court has held that the trial court may not deny certification based upon its preliminary assessment that the action lacks sufficient merit. (Linder v. Thrifty Oil Co., supra,23 Cal.4th at p. 448.)
Class certification motions should be viewed in comparison to the wide variety of motions and other matters that have been held not to involve a determination of contested fact. These include: (1) demurrers (Fight for the Rams v. Superior Court, supra,41 Cal.App.4th 953); (2) judgment on the pleadings (Hospital Council of Northern Cal. v. Superior Court (1973) 30 Cal.App.3d 331, 337); (3) summary judgment (Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 657); (4) motions to set aside an indictment under Penal Code section 995 (Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 431); and (5) an ex parte order on a temporary restraining order (TRO) (Landmark Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d 525). Landmark Holding Group, Inc. pointed out that in issuing a TRO the court has merely decided that it is necessary to maintain the status quo pending the notice hearing on the application for preliminary injunction. (Id. at p. 528.) In contrast, a ruling on a preliminary injunction is considered to be on the merits because it follows a full evidentiary hearing and constitutes a determination of the probability of success. (Id. at p. 529.)
While a motion to quash service of summons on the ground of lack of personal jurisdiction involves disputed fact issues (i.e., defendant’s contacts with the state), such fact issues are not related to the merits of the case so as to preclude a peremptory challenge. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126.) In contrast, few pretrial motions have been held to involve a determination related to the facts of the case. The court in School Dist. of Okaloosa County stated that, “we can count on four fingers the number of pretrial motions that have been held to involve a determination related to the merits of the case (In re Abdul Y. (1982) 130 Cal.App.3d 847, 859-860 [a motion to suppress a confession]; Kohn v. Superior Court, supra, 239 Cal.App.2d at p. 430 [a motion for a preliminary injunction]; California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267, 270 [a motion for summary adjudication of a ‘make or break’ issue], criticized in Fight for the Rams v. Superior Court (1996) 41 Cal.App.4th 953, 959-960, and by Weil & Brown, Cal[.] Practice Guide: Civil Procedure Before Trial 3 (The Rutter Group 1997) ¶ 9:137.3, p. 9(1)-71, rev. 1, 1997; Conn v. Superior Court (1987) 196 Cal.App.3d 774, 786 [contempt]).” (School Dist. of Okaloosa County v. Superior Court, supra, 58 Cal.App.4th at p. 1133.)
We must conclude that a class certification motion resembles more closely the majority of pretrial motions that have been held not to involve a contested fact issue because it involves a procedural matter not related to the merits of the underlying cause of action and, as explained by our Supreme Court, certification may not be denied based on the trial court’s assessment that the class cause of action lacks merit.
Finally, Saenz contends that to allow AT&T’s motion would be to allow it to abuse the peremptory challenge procedure because it is obvious in her view that AT&T filed the challenge to retaliate against Judge White for his ruling allowing class certification. Even assuming this is so, our conclusion is unchanged. Although AT&T participated in the hearing on class certification, it is well established that participation in a hearing at which no contested factual issue is determined does not bar the motion to disqualify. (Landmark Holding Group, Inc. v. Superior Court, supra, 193 Cal.App.3d at p. 528.) Saenz does not contend otherwise.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order of September 4, 2007, denying petitioners’ motion to disqualify Judge White, and enter a new order granting the disqualification motion.
We concur: RAMIREZ P. J. RICHLI J.