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Hutchinson v. Superior Court

California Court of Appeals, Second District, First Division
Mar 28, 2008
No. B205692 (Cal. Ct. App. Mar. 28, 2008)

Opinion


GARY E. HUTCHINSON et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent WALTER W. MOSHER, JR., et al., Real Parties in Interest. B205692 California Court of Appeal, Second District, First Division March 28, 2008

NOT TO BE PUBLISHED

ORIGINAL PROCEEDING; petition for writ of mandate. Teresa Sanchez-Gordon, Judge; Malcolm Mackey, Judge L.A.S.C. No. BC373106

Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, Ronald J. Nessim, Jason D. Kogan, Marc E. Masters; Anderson, McPharlin & Conners, Eric A. Schneider, Richard P. Tricker and Kristin M. Kubec for Petitioners.

No appearance for Respondent.

Finestone & Richter, Howard N. Gould and D. Jason Davis for Real Parties in Interest.

The trial court (Judge Teresa Sanchez-Gordon) erred when it accepted plaintiff Walter W. Mosher, Jr.’s (Mosher) Code of Civil Procedure section 170.6 challenge. Accordingly, we grant defendants Gary E. Hutchinson (Hutchinson), Jonathan G. Lasch (Lasch), Robert F. Foster (Foster), and Precision Dynamics Corporation’s (PDC) petition for writ of mandate.

Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

On September 5, 2006, Mosher, a shareholder of PDC, filed a lawsuit against PDC, its directors, and certain of its officers, including Hutchinson, Lasch and Foster, in Mosher v. Lasch et al. (First Action). In this action, Mosher challenged the validity of the election of directors at the 2006 annual shareholders’ meeting of PDC.

This First Action was assigned to and presided over by Judge Teresa Sanchez-Gordon. After a bench trial, Judge Sanchez-Gordon entered judgment in favor of defendants.

Mosher then filed an action against PDC and its directors, Mosher v. Kraemer, et al., (Current Action). The Current Action seeks to enjoin what is referred to as the Water Street transaction.

The Current Action was assigned to Judge Ruth Ann Kwan for all purposes, effective June 25, 2007. On June 26, 2007, defendants filed a Notice of Related Case, in the First Action, asserting that the Current Action was related to the First Action before Judge Sanchez-Gordon.

On July 9, 2007, Mosher filed his first peremptory challenge pursuant to section 170.6 in the Current Action seeking to disqualify Judge Kwan or, in the alternative, Judge Sanchez-Gordon. Mosher stated in the peremptory challenge that because a notice of related case was pending, and it was “unknown at this time which judicial officer will assume jurisdiction over this case,” the challenge was being filed “in this alternative manner.” Mosher’s peremptory challenge was accepted by Judge Kwan and the case was reassigned to Judge John Shook on July 11, 2007.

On July 12, 2007, Judge Sanchez-Gordon rejected defendants’ Notice of Related Case. Mosher filed a second amended complaint in the Current Action. On November 28, 2007, defendants renewed their request that the two cases be related. Judge Sanchez-Gordon granted defendants’ request and related the two cases on January 9, 2008. The Current Action was transferred to Judge Sanchez-Gordon, the same judge who presided over the First Action.

On January 18, 2008, Mosher filed a second peremptory challenge seeking to disqualify Judge Sanchez-Gordon, which was accepted.

The Current Case was reassigned to Judge Malcolm Mackey, where it is currently pending.

Hutchinson, Lasch, Foster and PDC then filed a writ of mandate asking us to compel Judge Sanchez-Gordon to vacate her order and continue to preside over the Current Action. We notified the parties we were considering the issuance of a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180) and have considered the opposition filed by Mosher.

Judge Sanchez-Gordon erred in accepting the section 170.6 challenge.

Section 170.6, subdivision (a)(3), states that a party is entitled to exercise no more than one peremptory challenge in a case: “Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section; and 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.”

Courts have recognized that “a party is not entitled to more than one section 170.6 peremptory challenge in a case.” (Kelley v. Bredelis (1996) 45 Cal.App.4th 1819, 1827; Johnson v. Superior Court (1958) 50 Cal.2d 693, 697 [section 170.6 “permits only one challenge to each side”]; Fraijo v. Superior Court (1973) 34 Cal.App.3d 222, 225 [“It is clear under section 170.6 that a defendant is entitled to make one motion . . . .”].)

The only exception to the one-challenge rule is provided in section 170.6, subdivision (a)(2). Under that provision, a successful appellant who previously filed a peremptory challenge in the action may file another peremptory challenge upon remand from the appellate court if the judge in the prior proceeding is assigned to conduct a new trial in the same case. No other statutory exceptions to the one-challenge rule exist. (See Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762, 765 [noting that under section 170.6 “a party is limited to a single peremptory challenge in a case” and that an additional challenge is contemplated only “following reversal of a judgment if the same judge is assigned to hear the case on remand”].)

A party’s peremptory challenge is deemed exercised when a change of judge is completed as a result of the challenge. (Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 147.) Thus, where a change of judge occurs as a result of a party’s filing of a peremptory challenge, that party “has fired its one shot” and may not file another peremptory challenge in the same case. (Id. at p. 148.)

Mosher “fired [his] one shot” under section 170.6 when he filed his peremptory challenge of Judge Kwan. Having successfully exercised a peremptory challenge by disqualifying Judge Kwan, Mosher was not entitled to also seek disqualification of Judge Sanchez-Gordon. Even though Mosher filed the first peremptory challenge in the alternative, and claims that the first challenge should not count, he offers no authority for that proposition.

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding Judge Sanchez-Gordon to vacate her order of January 23, 2008, accepting Mosher’s section 170.6 challenge and to issue a new and different order denying it, in Los Angeles Superior Court case No. BC373106, entitled Walter W. Mosher, Jr., et al. v. Robert B. Kraemer, et al.

The temporary stay order is hereby vacated.

All parties shall bear their own costs.

MALLANO, Acting P. J. VOGEL, J. JACKSON, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

Hutchinson v. Superior Court

California Court of Appeals, Second District, First Division
Mar 28, 2008
No. B205692 (Cal. Ct. App. Mar. 28, 2008)
Case details for

Hutchinson v. Superior Court

Case Details

Full title:GARY E. HUTCHINSON et al., Petitioners, v. THE SUPERIOR COURT OF LOS…

Court:California Court of Appeals, Second District, First Division

Date published: Mar 28, 2008

Citations

No. B205692 (Cal. Ct. App. Mar. 28, 2008)