Opinion
E069830
04-25-2018
FORD MOTOR COMPANY, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; SHAWN NOLAN et al., Real Parties in Interest.
Horvitz & Levy, Lisa Perrochet, Frederic D. Cohen, Allison W. Meredith; LeClairRyan, Peter J. Van Zandt, Paul H. Efstratis, for Petitioner. No appearance for Respondent. No appearance for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1307491) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate and/or prohibition. Sunshine S. Sykes, Judge. Petition is granted. Horvitz & Levy, Lisa Perrochet, Frederic D. Cohen, Allison W. Meredith; LeClairRyan, Peter J. Van Zandt, Paul H. Efstratis, for Petitioner. No appearance for Respondent. No appearance for Real Parties in Interest.
In this matter, we have reviewed only the petition and judicially noticed records detailed below. Although real parties in interest were invited to file a response to the petition, no response was filed. We have determined that resolution of the matter involves the application of settled principles of law, and that the equities favor petitioner. We conclude that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
I.
DISCUSSION
This is a products defect case involving an allegedly faulty diesel engine in a Ford Excursion. It was intended to trail the lead case of five in the trial court. However, the lead case was raised before this court in a petition for writ of mandate decided and granted in our nonpublished opinion, Ford v. Superior Court (Coon) (Mar. 14, 2018, E0697750) (hereafter Coon). The remaining three trailing cases are also before this court in petitions for writ of mandate (case Nos. E069827 (Watts), E069828 (Ettleman), and E069829 (Tanner)), also involving automotive claims. The petitions are not concerned with the merits of the automotive claims, however. Here, petitioner seeks relief from Judge Sykes's denial of its Code of Civil Procedure section 170.6 disqualification statement as untimely after assignment to her department from the master calendar court.
The court cites Coon only as part of the common history of these cases, not as authority. (Cal. Rules of Court, rule 8.1115(b).)
All further references are to the Code of Civil Procedure unless otherwise indicated.
"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. [Citations.] . . . Subdivision [(a)](2) of section 170.6, however, establishes three exceptions to the general rule, namely, the '10-day/5-day' rule, the 'master calendar' rule, and the 'all purpose assignment' rule." (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1171 (Lavi).) Under the master calendar rule, a party directed to trial of a cause where there is a master calendar must make a section 170.6 challenge to the judge supervising the master calendar at the time of the assignment. (§ 170.6, subd. (a)(2).) But, "[u]nder a true master calendar, a 'ready case is assigned to a ready department.' [Citation.]" (Lavi, at p. 1175.) " 'When the case is assigned for a future trial, the reasons for the special "master calendar" provision in section 170.6 do not exist.' " (Id. at p. 1176, citing Villarruel v. Superior Court (1973) 35 Cal.App.3d 559, 564.) Nonetheless, "[b]y stating that the courtroom must be 'ready,' we do not suggest that the courtroom actually be idle at the time of assignment. Rather, we mean that the courtroom is available or reasonably expected to become available shortly so that the trial may commence. For example, an assignment made in the morning for a trial expected to begin that afternoon could fall within the master calendar rule, as could an assignment made in the afternoon for a trial expected to begin the following morning. [Citation.]" (Lavi, at p. 1177, fn. 8.)
Here, the assignment from the master calendar court to Judge Sykes's court was for a future trial. In fact, on the date of the assignment, January 5, 2018, only Coon, supra, E069775, was assigned a trial date. The master calendar court assigned Nolan (and the other three cases) to Judge Sykes's court in the expectation of trying them serially after Coon, but no actual dates were identified. A master calendar assignment to a trial court need not begin immediately, but the interval must be brief, e.g., assignment in the morning for trial to commence that afternoon or in the afternoon for trial to commence the next morning. (Lavi, supra, 4 Cal.4th at p. 1177, fn. 8.) Here, the master calendar court made the assignment to Judge Sykes in Department 6 during the morning session on Friday, January 5, 2018. However, trial in the case of Nolan (and the other three trailing related cases) were not assigned a trial date. That does not meet the exception footnoted in Lavi.
Another reason exists to grant relief in this case. The simple fact that cases have been deemed "related," as the master calendar court so deemed here, is insufficient to bar section 170.6 challenges in the individual cases, even if the lead case is successfully challenged, unless the related cases are a continuation of the lead case. " '[A] proceeding is a continuation of the original action out of which it arises if it involves "substantially the same issues" as the original action.' [Citation.]" (NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 253.) Here, the four related cases—Watts, Ettleman, Tanner, and Nolan—do not arise out of Coon, supra, E069775. They are all discrete cases, related only by the fact that the vehicles in each case had the same 6.0-liter diesel engine. But, the vehicles themselves were not uniformly the same (two were Ford F-250 pickups; two were F-350 pickups; and one was an Excursion SUV). They were different year models (spanning 2003-2005), purchased at five different dealerships at different times (between 2003-2005). They developed various problems after widely varying mileage (Coon—78,854 miles; Watts—approximately 5,000 miles; Ettleman—approximately 12,200 miles; Tanner—approximately 4,271 miles; and Nolan—approximately 8,204 miles). Besides engine problems (loss of power, loss of towing capacity, etc.), the vehicles had other problems that were not identical to each other including transmission, HVAC, and electrical problems. The respective owners took the vehicles for repair or maintenance to five different dealership service departments for attempted repairs varying from four to 19 times. Under these circumstances, the four related "actions cannot be characterized as 'continuations' of the [Coon] matter." (Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 153, 155 [related cases involving Nissan 300ZX cars in model years 1985, 1986, and 1987 prone to sudden acceleration were factually too different to be a lead case and continuation cases].) Because the four related cases here cannot be continuations of the lead Coon case, each of the related cases is properly subject to individual 170.6 challenges, regardless of any such challenge in Coon.
The court takes judicial notice of the petitions and records in Coon, supra, E069775, Watts (case No. E069827), Ettleman (case No. E069828), and Tanner (case No. E069829), all of which are pending before this court. (Evid. Code, § 452, subd. (d).) --------
Accordingly, we have determined that the trial court abused its discretion in denying petitioner's section 170.6 statement of disqualification, and that the petition should be granted.
II.
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order of January 16, 2018, in Riverside Superior Court case No. RIC1307491, denying petitioner's section 170.6 statement of disqualification, and to enter a new and different order granting disqualification and assigning another judge to the trial of this case. Each party to bear their own costs
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.