Opinion
B169925.
10-30-2003
COMPUTER SONICS, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MERISEL AMERICAS, INC., Real Party in Interest.
Brian J. Jacobs for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
OPINION AND ORDER
GRANTING PEREMPTORY
WRIT OF MANDATE
We hold that the peremptory challenge of Computer Sonics, Inc. (CSI), having been filed prior to its first general appearance, was timely.[]
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate "in the first instance." (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the courts intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
No opposition has been filed.
FACTS
The matter was assigned to the Honorable Lois A. Smaltz, who granted CSIs first motion to quash service of summon. Plaintiff Merisel Americas, Inc. served CSI again, and CSI moved a second time to quash service of summons.
On August 6, 2003, Judge Smaltz denied CSIs second motion to quash.
On August 18, CSI filed its peremptory challenge to Judge Smaltz. On August 19, respondent court stated that the proof of service was not signed by the person who served the document and denied the challenge as untimely.
DISCUSSION
"First Appearance"
CSI made its first general appearance on August 6, when its motion to quash was denied. Thus, its peremptory challenge pursuant to Code of Civil Procedure section 170.6, filed on August 18, was timely.[]
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
"The word `appearance as it is used in section 170.6 consistently has been interpreted to mean `general appearance. [Citations.] It has been construed in this fashion for the simple reason that it is only upon the making of a general appearance that a defendant submits to the jurisdiction of the court. [Citation.]" (La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504.) "[W]hile a party may disqualify a judge scheduled to hear his motion to quash service, he is not required to do so, and the time in which he must raise a section 170.6 challenge does not commence until his first general appearance." (Id. at p. 1506.)
A party who makes a special appearance to move to quash service of summons makes a general appearance upon "entry of the order denying the motion." (§ 418.10, subd. (e).) A party has 15 days from the date of its first appearance to file a peremptory challenge to the judge. (§ 170.6, subd. (2); Gov. Code, § 68616, subd. (i).)
The 15-day period to file a disqualification declaration under Code of Civil Procedure section 170.6 began to run on August 7, the day after the second motion to quash was denied. Thus, the peremptory challenge, filed on August 18, was timely.
Service on opposing counsel
Invalid service does not provide a basis for denial of a peremptory challenge, because no notice is necessary. Section 170.6, subdivision (2), provides: "Any party to or any attorney appearing in any such action or proceeding may establish this prejudice by an oral or written motion without notice . . . ." (Emphasis added.)
"A statement of disqualification is not a motion. . . . [T]he determination of a judges disqualification is outside the usual law and motion procedural rules." (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 422.) "The language of section 170.6 makes it clear . . . that peremptory challenges do not require notice." (Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 147.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order in Los Angeles Superior Court case No. YC045729, entitled Merisel Americas, Inc. v. Computer Sonics, Inc., determining the peremptory challenge was untimely, and to issue a new and different order, accepting the peremptory challenge. The matter shall be assigned to a judge other than the Honorable Lois A. Smaltz forthwith.
The temporary stay order is hereby terminated.
The parties shall bear their own costs.
THE COURT, SPENCER, P. J. VOGEL (MIRIAM A.), J. MALLANO, J.