Opinion
B170263.
11-26-2003
TRIM DOCTORS, INC. et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; GABRIEL TOPETE, Real Party in Interest.
Norma Ann Dawson for Petitioners. No appearance for Respondent. Cullen & Associates and Paul T. Cullen for Real Party in Interest.
In this proceeding, defendants Trim Doctors, Inc. and Alan Terry petition for the issuance of a writ of mandate directing respondent court to set aside its order denying their Code of Civil Procedure section 170.6 peremptory challenge. We conclude the challenge was timely filed and therefore grant the petition.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. PROCEDURAL HISTORY AND STATEMENT OF FACTS
Petitioners are defendants in two wrongful termination cases (hereafter referred to as the "Ibarra" case and the "Topete" case), both filed on April 8, 2003. The Ibarra case was assigned for all purposes to Department 58, Judge Lawrence W. Crispo presiding. The Topete case was assigned for all purposes to Department 71, Judge Soussan Bruguera presiding.
Dalia Ibarra v. Trim Doctors, Inc. et al., BC293604 and Gabriel Topete v. Trim Doctors, Inc. et al., BC293613.
On June 23, 2003, petitioners filed in the Ibarra case a notice of related cases, asserting that the Ibarra and Topete cases are related. The trial court determined that the two cases are related, and ordered the Topete case transferred from Department 71 (Judge Bruguera) to Department 58 (Judge Crispo). Petitioners claim, and real party does not deny, that petitioners were first informed of the transfer during a hearing held in the Ibarra case on September 10, 2003.
Real party Topete claims in opposition to this petition that petitioners also filed a notice of related cases in the Topete case, and that this fact is somehow relevant to the outcome of this petition. Petitioners assert, however, that although they attempted to file a notice in the Topete case, it was rejected for filing by the superior court. In support of their claim, petitioners point to the Topete "case summary" attached to the petition, noting that the document makes no reference to the filing of a notice of related cases by petitioners. Because the evidence supports petitioners claim, we conclude that although petitioners filed a notice of related cases in the Ibarra case, petitioners filed no such notice in the Topete case. We therefore have no reason to consider whether the disposition in this case would have been different had petitioners filed a notice of related cases in the Topete case.
California Rules of Court, rule 804 and the Superior Court of Los Angeles County, Local Rules, rule 7.3(f) require counsel to file and serve such a notice when counsel first becomes aware cases are related.
Although the cases are related, they are separate and distinct from one another.
On September 17, 2003, seven days after being informed that the Topete case had been transferred to Department 58, petitioners filed in the Topete case a peremptory challenge pursuant to section 170.6 against Judge Crispo. The trial court denied the challenge as untimely, noting that petitioners "first appeared in this matter 06/23/03, approximately 87 days ago." Petitioners then filed this petition.
II. CONTENTION
Petitioners contend the trial court erred in denying their section 170.6 peremptory challenge as untimely.
III. DISCUSSION
The trial court denied petitioners section 170.6 challenge as untimely because in June 2003 petitioners "first appeared in this matter." It is not clear whether the trial court, in referring to "this matter" meant the Ibarra case or the Topete case. The record reflects that petitioners appeared in both cases in June 2003. This fact, however, is not relevant to the resolution of whether petitioners section 170.6 challenge was timely filed—because petitioners did not file their section 170.6 challenge in the Ibarra case, and they did not receive notice prior to September 2003 that the Topete case had been reassigned from Judge Bruguera to Judge Crispo.
When a cause has been assigned to a judge for all purposes, a peremptory challenge must be filed "within 10 days after notice of the all purpose assignment." (§ 170.6, subd. (2).) The commencement of 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 record reflects that petitioners filed their peremptory challenge in the Topete case within 10 days of the date they were informed by the trial court that the case had been transferred from Department 71 to Department 58. We therefore conclude that petitioners section 170.6 challenge was timely filed.
Real party asserts, in essence, that because petitioners filed a notice of related cases and asserted at that time that both the Ibarra case and the Topete case should be heard by Judge Crispo, petitioners were prohibited from filing a section 170.6 peremptory challenge in the Topete case after that case was transferred to Department 58. The suggestion is that because petitioners acquiesced to Judge Crispo hearing the Ibarra action (because they did not file a section 170.6 peremptory challenge in that case), they acquiesced to his hearing the related Topete action. However, "[a] partys acquiescence to a judge to hear one action does not impair his or her right to exercise a challenge to prevent that judge from hearing another matter, even if that matter raises issues closely related to those in the first action." (Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 155.) We conclude that petitioners were permitted, pursuant to section 170.6, to file a peremptory challenge against Judge Crispo in the Topete action even though they had earlier filed a notice of related cases in the Ibarra action and even though they represented at that time that both cases should be heard by Judge Crispo.
We recognize that petitioners actions could be construed as forum shopping and that it would promote judicial efficiency to have Judge Crispo hear both the Topete and Ibarra cases—especially since it appears Judge Crispo has made certain rulings in connection with the Ibarra case. "However, judicial efficiency is not to be fostered at the expense of a litigants rights under section 170.6 to peremptorily challenge a judge. In the same vein, the fact that a party can peremptorily challenge a judge after he has ruled in a case involving related factual or legal issues may result to some extent in forum shopping by parties filing later similar suits. However, collateral estoppel does not apply to disqualification motions. [Citation.] [¶] . . . By negative implication of section 170.6, subdivision (3), which bars a party from making more than one motion in any one action, the statute must be construed to mean that in two successive actions a party may move to disqualify in each, or may disqualify in the later action without waiving that right by failing to do so in the earlier action." (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 593, citing Solberg v. Superior Court (1977) 19 Cal.3d 182, 190, fn. 6.)
Because the peremptory challenge was timely filed, the trial court erred in denying petitioners section 170.6 peremptory challenge.
IV. DISPOSITION
We have followed the procedures and given the notices described in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-183. Let a peremptory writ of mandate issue directing respondent court to set aside its September 17, 2003 order denying petitioners section 170.6 peremptory challenge, and issue a new and different order accepting the peremptory challenge presented in the Topete action. Petitioners are to recover the costs of this petition.
We concur: NOTT, J. and DOI TODD, J.