Opinion
F083454
06-28-2022
DOMA TITLE OF CALIFORNIA, INC., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; CAROLYN CORTINA et al., Real Parties in Interest.
Gilmore Magness Janisse and David M. Gilmore for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super. Ct. No. 07CECG01169, Jeffrey Y. Hamilton, Jr., Judge.
Gilmore Magness Janisse and David M. Gilmore for Petitioner.
No appearance for Respondent.
Wagner Jones Kopfman & Artenian, Lawrence M. Artenian, Andrew B. Jones; Wanger Jones Helsley, Oliver Wanger, Patrick D. Toole, Benjamin C. West; Cornwell & Sample, Stephen R. Cornwell and Rene' Turner Sample for Real Parties in Interest Carolyn Cortina, Judith Bates, Tina Texeira, Janet Doran, Kimberly Baker, Laurel
Johnstone, Mary Weidmark, Cheryl Fuller, Melodie Benton, Robin Johnson, Catherine Bell, Teresa Spencer, and Martha Dominguez.
Morgan, Lewis & Bockius, Thomas Peterson, Barbara J. Miller and John D. Hayashi for Real Party in Interest North American Title Company, Inc., now known as Lennar Title, Inc.
OPINION
FRANSON, J.
This writ proceeding addresses the validity of a peremptory challenge under Code of Civil Procedure section 170.6 made by a corporation that was added as a defendant after a trial as to liability against the original defendant was completed and before a judgment was entered. The newly added corporate defendant filed the peremptory challenge seven days after being served. The trial court denied the challenge as untimely. The newly added corporate defendant contends the challenge was timely under the provision stating that "if the party has not yet appeared in the action, then [the peremptory challenge may be made] within 15 days after the appearance." (§ 170.6, subd. (a)(2).)
Unlabeled statutory references are to the Code of Civil Procedure.
Another timeliness provision in section 170.6, subdivision (a)(2) provides that "[i]n no event shall a judge … entertain" a peremptory challenge after trial has commenced. This provision "requires that disqualification motions be raised no later than commencement of the trial or hearing." (Maas v. Superior Court (2016) 1 Cal.5th 962, 979 (Maas).) We conclude the provision allowing a late-appearing party to make a peremptory challenge within 15 days of its appearance is subject to the general rule that a peremptory challenge must be made before trial has commenced. In other words, the provision for late-appearing parties operates only to move the deadline forward; it does not relax the deadline and allow a peremptory challenge after trial has commenced. (See National Financial Lending, LLC v. Superior Court (2013) 222 Cal.App.4th 262, 275 [new party added in postjudgment proceedings did not have the right to file a peremptory challenge] (National Financial).) Applying the rule that a peremptory challenge under section 170.6 must be made before trial has commenced, we conclude the peremptory challenge by the newly added corporate defendant was untimely. We therefore deny the petition for writ of mandate.
FACTS
In 2007, plaintiffs Carolyn Cortina and 12 other escrow officers ("Class Representatives") filed a class action against their employer, then named North American Title Company, Inc., a California corporation (Former NATC/Lennar Title). In 2010, the trial court granted a motion to certify class action.
According to the docket, Judge Jeffrey Y. Hamilton, Jr. made his first ruling in the case in September 2010, granting a motion in part. In September 2015, a court trial of Class Representatives' claims for overtime began before Judge Hamilton. In October 2016, Judge Hamilton issued a statement of decision as to liability that found in favor of Class Representatives. A judgment has not yet been entered; however, there is a proposed judgment setting restitution for unpaid overtime wages at approximately $21 million and awarding a nearly equal amount in accrued prejudgment interest. The docket also contains an entry for June 25, 2020, indicating a notice of assignment of a judge for all purposes (Judge Hamilton) was filed.
The petitioner in this writ proceeding currently is named Doma Title of California, Inc., a California corporation (Doma Title). This entity was incorporated on January 23, 2018, long after this lawsuit was filed. The important fact for purposes of this opinion is that Doma Title and Former NATC/Lennar Title are separate legal entities. Nothing in this opinion should be read as implying that these entities are, or are not, alter egos or that Doma Title is, or is not, a successor in interest liable for the debts of Former NATC/Lennar Title.
PROCEEDINGS
The proceedings relevant to this writ petition began in February 2020 when the trial court granted Class Representatives leave to file a third amended complaint to add additional entities as parties. One of those entities was Doma Title.
In September 2021, Class Representatives served Doma Title with a summons and the third amended complaint. On October 4, 2021-seven days after service-Doma Title filed a peremptory challenge to Judge Hamilton pursuant to section 170.6 that included a supporting declaration of its attorney.
On October 5, 2021, Class Representatives filed an objection to the peremptory challenge. They argued the right to exercise a peremptory challenge within 15 days after appearing in the action was not absolute. In their view, the applicable rule of law provided that" 'neither side in a proceeding may make a motion under section 170.6 after trial has commenced or the trial judge has resolved a disputed issue of fact relating to the merits.' (Nat'l Financial Lending, LLC v. Superior Court (2013) 222 Cal.App.4th 262, 270 [citing Code Civ. Proc., § 170.6, subd. (a)(2)].)"
On October 6, 2021, the trial court issued an order stating:
"Following a court trial spanning over 40 days in 2015 and 2016 and nearly 5 years to the day of this Court's issuance of a Statement of Decision in favor of the Plaintiffs, this Court was made aware of a peremptory challenge filed by nonparty DOMA TITLE OF CALIFORNIA, INC. formerly known as party NORTH AMERICAN TITLE COMPANY, INC, (but not served upon the judge or judge's clerk) by way of an opposition filed and received October 5, 2021 by Plaintiffs' counsel.
"For all of the reasons stated in Plaintiffs' opposition, the challenge is denied as untimely and/or filed without standing to do so."
On October 21, 2021, Doma Title submitted a petition for writ of mandate to this court contending the trial court erred in denying its peremptory challenge under section 170.6. The only way to obtain review of an order addressing the disqualification of a judge is to file a writ petition because such an order is not appealable. (§ 170.3, subd. (d).)
On November 2, 2021, Class Representatives filed an informal response to the petition for writ of mandate. They argued Doma Title was a suspended corporation and was barred from filing the writ petition. They also argued the peremptory challenge was untimely because the trial court previously resolved disputed facts on the merits.
This court (1) directed Doma Title to file an informal response within 15 days addressing whether the writ proceeding should be dismissed and (2) allowed real parties in interest to submit an informal reply. On November 30, 2021, Doma Title filed an informal response and a request for judicial notice of a certificate of revivor issued by the Franchise Tax Board and dated November 18, 2021, and a printout from the Secretary of State's Web site listing it as an active corporation.
On January 6, 2022, this court issued an alternate writ directing the superior court to (1) vacate the October 6, 2021, order denying Doma Title's peremptory challenge, issue an order granting the peremptory challenge, and strike as void all orders issued by Judge Hamilton after October 4, 2021, or (2) show cause before this court why the relief requested in Doma Title's writ petition should not issue.
The trial court set the matter for hearing on January 21, 2022. At the request of Class Representatives, the court continued the hearing to January 28, 2022.
On January 25, 2022, Class Representatives filed an ex parte application for the dismissal of Doma Title. Later that day, Judge Kimberly Gaab signed and filed an order dismissing Doma Title without prejudice effective immediately.
On January 28, 2022, Judge Hamilton filed an order responding to alternative writ or order to show cause issued on January 6, 2022, by this court. The order stated that prior to the hearing, Class Representatives' request to dismiss Doma Title had been granted. The order also stated that, as a result of the dismissal, cause existed for the Fifth District to deny the writ relief requested.
On February 9, 2022, this court issued an order to show cause directing the real parties in interest to file a reply to the writ petition within 30 days and allowing Doma Title to file a reply 30 days after the filing of the returns. This court also stayed the superior court proceedings pending a determination of this writ proceeding.
DISCUSSION
I. CORPORATE SUSPENSION AND EFFECT OF REVIVOR
We assume for purposes of this writ proceeding that the certificate of revivor obtained by Doma Title from the Franchise Tax Board retroactively validated the peremptory challenge and the petition for writ of mandate, both of which were filed while its corporate status was suspended from on October 1, 2021, until November 18, 2021. (See Bourhis v. Lord (2013) 56 Cal.4th 320, 324 [effect of the revival of corporate powers].)
II. PEREMPTORY CHALLENGES
A. Legal Background
Section 170.6 provides that "[a] judge … of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge … is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding." (§ 170.6, subd. (a)(1).) Prejudice is established by "an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath" that the assigned judge "is prejudiced against a party or attorney ... so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge ...." (§ 170.6, subd. (a)(2).) "If motion is duly presented, and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without any further act or proof," a different judge must be assigned to try the cause or hear the matter. (§ 170.6, subd. (a)(4).)
When a litigant has met the requirements of section 170.6, disqualification of the judge is mandatory, without any proof that the judge is actually prejudiced. (Maas, supra, 1 Cal.5th at p. 972; Loftin v. Superior Court (1971) 19 Cal.App.3d 577, 579 [§ 170.6 gives "a litigant one chance to get rid of an unwanted judge, whom he cannot successfully challenge [for cause] under [former] section 170"].) In our Supreme Court's view, the Legislature's enactment of section 170.6 bestowed upon litigants an extraordinary right to peremptorily challenge a judge. (Maas, supra, at p. 972.) Thus, a peremptory challenge may be described as automatic in the sense that a good faith belief in prejudice is sufficient to disqualify a judge. (Id. at pp. 972-973.) In other words, "[a] duly presented peremptory challenge is effective 'without any further act or proof' upon acceptance by the trial court. (§ 170.6, subd. (a)(4).)" (Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 408.) "Trial courts must act upon peremptory challenges at the first available opportunity, before ruling on contested issues, lest this important right be lost or diminished through procedural tactics or maneuvers." (Ibid.)
The Legislature, by allowing a party's belief that the judge is prejudiced to justify disqualification, intended to preserve public confidence in the impartiality of the courts. (Maas, supra, 1 Cal.5th at p. 973.) To implement this intent, the Supreme Court stated that" '[s]ection 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.'" (Ibid.)
The Legislature also recognized the potential for section 170.6 to be abused by parties seeking to delay trial or to obtain a favorable judge. (Maas, supra, 1 Cal.5th at p. 973.) To prevent such abuse, section 170.6 limits both the number and the timing of a peremptory challenge against a judge. (Ibid.; The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032; see § 170.6, subd. (a)(2), (4).) For instance, there "is the limitation, in any one action, of each party to a single motion, or each side to a single motion, should there be more than one plaintiff or defendant." (The Home Ins. Co. v. Superior Court, supra, at p. 1032.) The statutory limitations are designed to strike a balance between the needs of litigants and the operating efficiency of the courts. (Ibid.)
"Peremptory challenges are creatures of statute. They are presented in the form of a motion, but they fall outside the usual law and motion procedural rules, and are not subject to a judicial hearing." (Frisk v. Superior Court, supra, 200 Cal.App.4th at p. 408, citing Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 147.) "When a motion under section 170.6 is in proper form and timely filed, the judge is not permitted to try the assigned civil or criminal action or special proceeding, or to hear 'any matter therein that involves a contested issue of law or fact.' (§ 170.6, subd. (a)(1).)" (Maas, supra, 1 Cal.5th at pp. 969-970.)
B. Judicial Review
" '[A]n order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate.'" (People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 900; see § 170.3, subd. (d).) "Even assuming petitioner is required to establish irreparable harm in bringing this statutory writ petition, such harm is obvious in the context of judicial disqualification." (People v. Superior Court (Tejeda), supra, at p. 900.) "Section 170.6 would ring hollow if the moving party were required to prove in a writ petition that the disqualification motion would actually make a difference in the outcome of the case (an inherently speculative enterprise) or that the moving party could not successfully move to disqualify the trial judge for cause under section 170.3 (a showing that would undermine § 170.6 by requiring the party to disclose the specific reason for believing the judge was not fair and impartial and to explain why evidence could not be marshaled to disqualify the judge for cause)." (Ibid.)
The Courts of Appeal have not all used the same language in describing the appropriate standard of review of the denial of a peremptory challenge. (Swift v. Superior Court (2009) 172 Cal.App.4th 878, 882.) Some courts state the trial court's order is reviewed for abuse of discretion and note that" '[a] trial court abuses its discretion when it erroneously denies as untimely a motion to disqualify a judge pursuant to section 170.6.'" (Ibid.) Other courts have stated that," '[i]n deciding a section 170.6 motion, the trial court has no discretion' so it is 'appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as [a question] of law' using the 'nondeferential de novo standard.'" (Ibid.) Here, the procedural facts relevant to the validity of the peremptory challenge are not disputed. As a result, this writ proceeding presents questions of law subject to the de novo standard of review.
C. Duly Presented
Phrased in statutory terms, the broad issue presented in this writ proceeding is whether Doma Title's peremptory challenge was "duly presented" as required by section 170.6, subdivision (a)(4). Duly presented means the peremptory challenge was "in proper form and timely filed." (Maas, supra, 1 Cal.5th at p. 969.) The trial court resolved this issue by concluding the peremptory challenge was "untimely and/or filed without standing to do so." We agree the challenge was untimely. Once the trial commenced, the time for making a peremptory challenge had expired. (§ 170.6, subd. (a)(2).)
1. General Rule: Challenge Before Trial Starts
Section 170.6 contains several provisions addressing when a peremptory challenge must be made. Many of the provisions are tied to when the "cause" is assigned for trial or to a judge. (See § 170.6, subd. (a)(2).) Those provisions are followed by a sentence stating: "In no event shall a judge [in an action tried to the court] entertain the motion if it is made … after the making of an opening statement by counsel for plaintiff, or … after swearing in the first witness." (§ 170.6, subd. (a)(2), italics added.) This sentence establishes the "general rule" that "a motion for disqualification under section 170.6 is allowed any time before the commencement of the trial or hearing." (Maas, supra, 1 Cal.5th at p. 978, italics added; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9:123, p. 9(I)-106 [general rule].) Stated in a different way, "section 170.6 requires that disqualification motions be raised no later than commencement of the trial or hearing." (Maas, at p. 979, italics added.) If this general rule applies, the peremptory challenge Doma Title filed in October 2021 is untimely because a court trial as to liability began in September 2015 and Judge Hamilton issued a statement of decision as to liability in October 2016.
When presented with questions of statutory construction, a court's resolution of such questions begins with the words of the statute itself and gives those words their usual and ordinary meaning. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) Accordingly, we begin with the phrase "[i]n no event shall" and are unable to discern any ambiguity. First, the word "shall" is ordinarily construed as mandatory. (See People v. Perez (2021) 67 Cal.App.5th 1008, 1014; Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 632 [§ 437c, subd. (b)(1)'s use of "shall" created mandatory requirement].) Second, the term "no event" is unequivocal. It is not reasonably interpreted to mean the mandatory rule stated applies in some events and not in other events. (See DiMarco v. Department of Revenue (Colo.App. 1993) 857 P.2d 1349, 1352 [" 'in no event later than'" is negative language that suggests a mandatory interpretation].) Accordingly, the phrase "[i]n no event shall" eliminates the possibility of a judge entertaining a peremptory challenge made after the trial has commenced. Consequently, the sentence in section 170.6, subdivision (a)(2) that begins with that phrase establishes the absolute latest point in time (i.e., commencement of trial) for filing a peremptory challenge. Next, we consider whether to adopt the plain meaning of that sentence or, alternatively, to conclude other language in section 170.6 creates an implied exception.
2. Deadline When a Judge is Assigned for All Purposes
As background for our discussion of exceptions to the general rule setting the commencement of trial as the deadline for making a peremptory challenge, we note that, in theory, such a rule could have two distinct types of exceptions. One type of exception would accelerate the deadline, causing it to expire before a trial is commenced. The other type of exception would extend the deadline, allowing a peremptory challenge to be made after trial has commenced. As described below, the exceptions to the general rule accelerate the deadline and, thus, impose stricter limitations on the exercise of peremptory challenges.
One "exception" to the general rule applies when the case has been assigned to a judge for all purposes. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 9:125, p. 9(I)-107 [all-purpose assignment exception].) The exception provides different timeframes depending on whether the party making the peremptory challenge has already appeared in the action when it is assigned to a judge for all purposes or appeared after the assignment. The first timeframe requires a party that has already appeared in the civil action to file its peremptory challenge within 15 days of the notice of assignment. (§ 170.6, subd. (a)(2).) The second timeframe (the timeframe relevant to Doma Title's argument) is stated in the following text: "[I]f the party has not yet appeared in the action, then within 15 days after the appearance." (§ 170.6, subd. (a)(2); see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 9:127.5, p. 9(I)-109 [challenge by later-joined parties].)
"The word 'appearance' as it is used in section 170.6 consistently has been interpreted to mean 'general appearance.'" (La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504.) As conceded by Class Representatives, Doma Title made a general appearance when it filed the peremptory challenge on October 4, 2021. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (2021) ¶ 9:127.5, p. 9(I)-109 [any appearance is general unless it questions the court's jurisdiction].) Therefore, Doma Title's appearance and its filing of the peremptory challenge were simultaneous and, therefore, within the 15-day period applied to late appearing parties.
3. The Deadline in This Case Was the Start of Trial
Doma Title contends the timeliness of its peremptory challenge is governed by the provision allowing peremptory challenges by late appearing parties 15 days after their appearance, not the general rule requiring challenges to be made before the trial starts. This contention raises the question of which statutory provision controls when their application to a set of facts produces different results. For instance, in this case, if the provision for late appearing parties controls, then Doma Title's peremptory challenge will be timely. Alternatively, if the general rule requiring peremptory challenges to be made before trial has commenced controls, then Doma Title's peremptory challenge will be untimely.
Two cases decided by the Fourth District have addressed the interplay between section 170.6's provisions containing the general rule precluding a peremptory challenge after trial has commenced (or after the judge had decided contested fact issues relating to the merits) and the exception providing that, in a case assigned to a judge for all purposes, a later appearing party can bring a peremptory challenge up to 15 days after the party's general appearance. (National Financial, supra, 222 Cal.App.4th 262; Stephens v. Superior Court (2002) 96 Cal.App.4th 54 (Stephens).) In the earlier case, the court stated that the general rule "precludes a peremptory challenge by a late appearing party in a proceeding in which the judge determined a contested fact issue relating to the merits." (Stephens, at p. 56, italics added.) In other words, the general rule controlled and its deadline was not extended by the provision addressing later appearing parties.
In Stephens, supra, 96 Cal.App.4th 54, the court explained its interpretation of section 170.6 by stating:
"A lateappearing party in a case assigned to a judge for all purposes has the right to exercise a peremptory challenge within [15] days after appearing in the case. However that right is subject to two exceptions under section 170.6, subdivision (2): a party cannot exercise a peremptory challenge after the commencement of trial, and a peremptory challenge is precluded after the judge has decided a contested fact issue relating to the merits.… Both exceptions reflect the Legislature's intent to strike a balance between the competing policies of ensuring a fair and impartial judiciary and discouraging 'judge shopping.' Once a case has progressed to the point where an assigned judge has presided over trial or any other proceedings involving the determination of contested fact issues relating to the merits, the policy of avoiding possible judicial bias by allowing a party to remove a judge without having to establish the judge's prejudice to the satisfaction of a judicial body must yield to the policy against judge shopping-i.e., removing an assigned judge from a case for reasons other than a good faith belief the judge is prejudiced." (Stephens, supra, 96 Cal.App.4th at p. 60, italics added.)
In Stephens, the court also supported its statutory interpretation by referring to the relative placement within the statute of the provisions under consideration. The court observed that what we have labeled the general rule follows the other provisions setting forth time limits for making a peremptory challenge. (Stephens, supra, 96 Cal.App.4th at p. 61.) Based on its placement and the text addressing judges who have determined contested fact issues relating to the merits, the court concluded the provision allowing a peremptory challenge by a late appearing party was subject to the general rule.
We note that the Fourth District described the principle that a peremptory challenge cannot be made after trial has commenced as an exception to the rule creating a deadline based on when a judge is assigned for all purposes. In contrast, like our Supreme Court, we have referred to the principle that a peremptory challenge cannot be made after trial has commenced as "a general rule." (Maas, supra, 1 Cal.5th at p. 978; People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171 ["As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing"].) This is a difference in semantics, not substance. Regardless of the way the principle is stated, the interpretation adopted by the Fourth District and in this opinion produces the conclusion that a peremptory challenge cannot be made after trial has commenced and that deadline is not extended by the provision for late appearing parties in cases that have been assigned a judge for all purposes.
As described earlier, this interpretation adopts the plain meaning of the phrase "[i]n no event shall" at the beginning of the sentence prohibiting a judge from entertaining a peremptory challenge made after the trial has commenced. If the Legislature had intended the principle for late appearing parties to extend the deadline for filing a peremptory challenge, it should have used language specifying that "event" as an exception to the commencement-of-trial deadline.
National Financial, supra, 222 Cal.App.4th 262 illustrates how this statutory interpretation applies to a new party brought into the litigation after the trial had been completed and a judgment was entered against the defendant. In that case, the plaintiff obtained a nearly $2.8 million judgment against a construction lender than failed to meet its commitments. (Id. at p. 266.) The plaintiff's postjudgment collection proceedings were unsuccessful. (Ibid.) As a result, the plaintiff served a notice of levy on National Financial Lending, LLC, a third party that owed the defendant construction lender substantial amounts. (Ibid.) Despite service of the notice of levy, National Financial Lending, LLC paid the defendant construction lender more than $2 million. (Ibid.) After the defendant construction lender "filed its bankruptcy petition, the plaintiff filed a motion under section 701.020 to make the third party debtor liable for the money it transferred to the defendant." (National Financial, supra, at p. 267.) National Financial Lending, LLC filed a motion to quash service of the notice of levy and a peremptory challenge under section 170.6. (National Financial, supra, at p. 267.) The trial court denied the peremptory challenge and National Financial Lending, LLC filed a petition for writ of mandate. (Id. at p. 269.) The appellate court issued an order to show cause and stay, and subsequently denied the petition. (Id. at pp. 269, 279.)
The court in National Financial referred to the principle that where a trial court has been assigned for all purposes, a new party must make the peremptory challenge within 15 days of appearing. (National Financial, supra, 222 Cal.App.4th at p. 270.) The court stated that the principle was subject to limitations, including the rule that a party may not make a peremptory challenge after trial has commenced. (Ibid.) The court also stated that the plaintiff's section 701.020 motion and National Financial Lending, LLC's motion to quash the notice of levy were both incidents of the action in which the judgment was entered and concluded they were not special proceedings within the meaning of section 170.6. (National Financial, supra, at p. 274.) The court concluded the right to make a peremptory challenge had expired because the trial court had resolved questions of fact in the underlying action against the construction lender before the postjudgment motions were made. (Id. at p. 276.) The court supported this conclusion by citing Stephens and stating it was "important to recognize that the fact [National Financial Lending, LLC] was a new party to the proceeding did not impact application of the limitation imposed by section 170.6, subdivision (a)(2)." (National Financial, supra, at p. 275.)
Similarly, it is important to recognize in this case that the fact Doma Title was a new party did not impact the application of the deadline imposed by section 170.6, subdivision (a)(2) that prohibits peremptory challenges after trial has commenced.
In closing, we recognize that the court in Stephens stated that "section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it." (Stephens, supra, 96 Cal.App.4th at pp. 61-62.) Our interpretation of the statute does not violate this general admonition because, read literally, section 170.6 absolutely forbids challenges after the commencement of trial.
DISPOSITION
The petition for writ of mandate is denied. The alternative writ is discharged as improvidently granted and this court's stay order is vacated upon the finality of this opinion as to this court. Class Representatives are the prevailing party and shall recover their costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
The motion for judicial notice proposed in this court's order of May 4, 2022, is denied.
WE CONCUR: POOCHIGIAN, ACTING P. J. SMITH, J.