Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG04185374
Margulies, J.
Plaintiffs Aschilew Jember, Ferede Negash, and Leilti Mesfin sued defendants Addis Alemu, Elsabeth Ejiugu, Alemu, Inc. doing business as Mudai Restaurant, and Bay Express Shuttle for breach of contract and other claims. Three and one-half months before the scheduled trial date, defendants moved for summary judgment, and the trial court granted the motion. Plaintiffs contend that the summary judgment papers were improperly served, the motion was untimely filed, the judge who granted the motion should have been removed in response to their peremptory challenge, and the judge was biased. We affirm.
I. BACKGROUND
Plaintiffs sued defendants for breach of contract and other claims growing out of the dissolution of a partnership to operate a restaurant, known as “The Lunch Box.” Because the parties’ appendices provide us with only a partial record of the litigation, our recitation of the relevant facts is by necessity somewhat vague.
At some point, this matter came before Judge Frank Roesch. On September 20, 2006, Negash filed a peremptory challenge under Code of Civil Procedure section 170.6 against Judge Roesch. On September 28, Judge Wynne Carvill entered an order striking the peremptory challenge because Jember had earlier filed a peremptory challenge against a different judge, thereby precluding any other plaintiff from filing further peremptory challenges.
The docket sheet shows that, on December 1, 2006, a motion to continue the trial date was granted. The new trial date was July 13, 2007.
On March 29, 2007, defendants filed a motion for summary judgment, noticed for hearing on June 13. The summary judgment documents contain proofs of service executed by defendants’ attorney and dated March 28, 2007. Plaintiffs filed a request to strike the moving papers on May 15, contending that the proofs of service were “fraudulent.” In their appendix, plaintiffs did not provide us with a copy of the court order ruling on their objections, but a subsequent court order states that the contentions were rejected.
The summary judgment motion was heard on June 13, 2007. Plaintiffs did not contest the tentative ruling, and the trial court granted the motion for summary judgment on its merits in an order dated the day of the hearing.
Plaintiffs filed a motion for reconsideration of the summary judgment motion in which they again raised the issue of service. In its order denying the motion for reconsideration, the court noted that it had previously rejected their contention that service was improper.
II. DISCUSSION
Plaintiffs contend that (1) the peremptory challenge of Judge Roesch should have been granted; (2) filing of the motion for summary judgment violated the 75-day rule; (3) Judge Roesch was without power to hear the summary judgment motion; (4) they did not receive proper service of the motion; and (5) Judge Roesch acted out of “racial bias, prejudice and Retaliation” against plaintiffs. Plaintiffs do not challenge, and we do not review, the grant of summary judgment on the merits.
Plaintiffs first contend that the trial court improperly struck Negash’s Code of Civil Procedure section 170.6 peremptory challenge of Judge Roesch. The denial of a peremptory challenge, however, may be challenged only by way of a petition for a writ of mandate and may not be reviewed on direct appeal. (Code Civ. Proc., § 170.3, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding”]; People v. Webb (1993) 6 Cal.4th 494, 522–523.) For that reason, we do not address the merits of Judge Wynne’s strike of the peremptory challenge against Judge Roesch.
Although we do not rule on the merits of Judge Wynne’s strike, we note that it appears well-grounded in the law. (See Code Civ. Proc., § 170.6, subd. (a)(3); The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032.)
Plaintiffs next contend that service and filing of the summary judgment motion violated various statutory restrictions on timing. Under section 437c, subdivision (a), a summary judgment motion must be served at least 75 days before the hearing date (plus two court days when service is by overnight delivery) and must be heard no later than 30 days before the date of trial. According to the proofs of service, this motion was served on March 28 by overnight mail. The 75 days expired on June 11; adding the two court days makes June 13, the date the motion was heard. The motion was therefore timely served. In addition, the June 13 hearing date was exactly 30 days before the trial date of July 13, again causing the motion to be timely.
Plaintiffs claim that Judge Roesch was without power to hear the summary judgment motion because he was not the presiding judge. Plaintiffs cite no legal authority for their contention that the power to hear summary judgment motions is reserved to the presiding judge, and we are unaware of any such authority. At the time of this motion, Judge Roesch was a judge of the superior court, and he therefore had power to hear and rule on defendants’ motion. Plaintiffs also argue that “[t]he Superior court for the Alameda County listed names of Judges and Commissioners who are not qualified to see and hear summary Judgment Motions for complex cases such as this one. Judge Frank Rosech [sic] is on [sic] of the judges excluded to hear summary judgment motions in cases like this one.” There is no copy of the list to which plaintiffs refer in the record. We therefore reject this argument as factually unsupported.
According to defendants, the motion was assigned to Judge Roesch because he was sitting as a law and motion judge at the time the motion was filed.
Plaintiffs contend that they were not properly served with the motion. The motion papers contain executed proofs of service that contradict this contention. When a proof of service substantially complies with the applicable statutory requirements, it creates a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) The trial court heard and found not credible plaintiffs’ contention that, despite the proofs of service, they had not been served. Because the proof of service provides substantial evidence to support that finding, we have no basis for reversal. (Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 508.)
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Swager, J.