Opinion
B215444
7-9-2009
THOMAS SAGLIME, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; KLEINFELDER, INC., Real Party in Interest.
Law Office of Timothy R. Lee and Timothy R. Lee for Petitioner. No appearance for Respondent. Downey Brand, Frank R. Perrott and Michael A. Churchill for Real Party in Interest.
Not to be Published in the Official Reports
Thomas Saglime ("Saglime"), a plaintiff in one of five consolidated cases, seeks a writ of mandate directing Judge Warren Ettinger to accept a peremptory challenge. (Code Civ. Proc., § 170.6.)
Statutory references are to the Code of Civil Procedure.
In relevant part, subdivision (a)(2) of section 170.6 provides: "Any party to or any attorney appearing in any action or proceeding may establish this prejudice by an oral or written motion without notice supported by affidavit or declaration under penalty of perjury or an oral statement under oath that the judge, court commissioner, or referee before whom the action or proceeding is pending or to whom it is assigned is prejudiced against any party or attorney or the interest of the party or attorney . . . cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge, court commissioner, or referee."
On April 28, 2009, we notified all parties to the petition this court was considering the issuance of a peremptory writ of mandate in the first instance (Lewis v. Superior Court (1999) 19 Cal.4th 1232; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171), directing the respondent court to vacate its order striking the peremptory challenge and to enter in its place an order accepting the peremptory challenge.
We received opposition from defendant and real party in interest Kleinfelder Inc. ("Kleinfelder"), and a reply from Saglime. Following our review of the record and the briefs submitted to this court, we determined that Saglime is entitled to file a peremptory challenge to the trial court on his own behalf. Accordingly, the petition is granted.
DISCUSSION
1. Background.
Saglime is one of five homeowners whose homes were damaged in a landslide. Each homeowner retained separate counsel and filed separate actions against the four other neighbors, the City of Diamond Bar, and Kleinfelder, Inc., a geology and geotechnical engineering firm. On August 15, 2006, at a case management conference, the five separately filed cases were ordered consolidated for all purposes. Their counsels were directed to file a single master amended complaint containing the respective claims.
Kleinfelder contends although the five plaintiffs filed separate complaints and are represented by five different counsels, the five cases, after consolidation, became one because each complaint arose from one distinct event, the landslide. However, after filing the master amended complaint, each individual homeowner continued to be represented by different counsel and each homeowner remained in an adversarial position to each other homeowner, continuing to allege causes of action against each other.
In January 2008, each of the five individual cases settled with all defendants except Kleinfelder.
During the litigation and subsequent to the consolidation order, several parties filed successful peremptory challenges against various judicial officers, including two challenges filed by Kleinfelder. Ayad, a plaintiff in one of the cases and a defendant in the other cases, including a defendant in the case filed by Saglime, filed a successful peremptory challenge on May 1, 2008.
On February 27, 2008, Kleinfelder filed a peremptory challenge to Judge Workman for cause (§ 170.1). On April 4, 2008, Kleinfelder filed a peremptory challenge (§ 170.6) to Judge Lavin.
On April 1, 2009, the case was assigned to Judge Ettinger. Saglime filed the peremptory challenge immediately upon learning that Judge Ettinger had been assigned to hear the consolidated cases. The trial court rejected the challenge on April 13, 2009, but invited Saglime to seek a writ petition.
2. Standard of review.
"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 [within 10 days of notice to the parties of the decision and] only by the parties to the proceeding." (§ 170.3, subd. (d).)
In the absence of conflicting evidence, the reviewing court must make an independent determination of the issue. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866.) ". . . [W]hen the disqualification of a judge is a question of fact, and the facts are disputed, the determination of the judge assigned to pass on the question is final and conclusive under the well-settled rule that appellate courts are bound by the determination of the lower court, based on conflicting evidence. But where the facts are without substantial conflict the question of disqualification is one of law . . . ." (Briggs v. Superior Court (1932) 215 Cal. 336, 342.) There are no conflicting facts in this case relating to the peremptory challenge issue. Accordingly the question is one of law to be determined de novo by this court. (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363.)
Section 170.6 permits a party to disqualify a judge without establishing the fact of prejudice. "As a remedial statute, 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 v. Superior Court (2002) 96 Cal.App.4th 54, 61-62.)
3. Applicable law.
The determinative case in this case is Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150. The Nissan court held where separate cases are consolidated, the parties in each of the consolidated cases retain the right to timely challenge the assigned judge. (Id. at p. 155.) In Nissan, three different plaintiffs filed lawsuits against Nissan based upon three separate automobile accidents caused by a sudden acceleration that caused personal and property damages. After discovery was completed, the three cases were consolidated under the number of the first filed case. The three plaintiffs had the same counsel and, after consolidation, plaintiffs counsel filed a peremptory challenge in two of the actions. The trial court rejected the peremptory challenge, based on the determination no peremptory challenge had been filed in the first filed case. The Court of Appeal reversed, finding the later filed cases were not continuations of the first filed case. Even after consolidation, three separate and distinct cases remained with each entitled to file a separate peremptory challenge. (Ibid.) Section 170.6 " `should be liberally construed with a view to effect its objects and to promote justice. [Citation.]" (Nissan Motor Corp. v. Superior Court, supra, at p. 154.)
Here, the parties not only filed separate lawsuits but each plaintiff named each owner of property damaged in the landslide as a defendant in the separate cases, thereby establishing an adversary relationship among the landowners as well as against their codefendants City of Diamond Bar and Kleinfelder.
Where the subsequent proceeding is merely a continuation of an earlier action, a peremptory challenge may not be made. "The rule is premised on the rationale that if disqualification were permitted in subsequent proceedings, the original judge, ordinarily in the best position to pass upon questions involved, would be disqualified from hearing such matters; litigants could, as a result, gamble on a favorable decision from one judge but, if that decision were unfavorable, seek another judges ruling on substantially the same issues. [Citation.]" (Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1494.) This rule is not applicable here. Saglime, has not previously filed a peremptory challenge in this action, and he filed the section 170.6 affidavit on the day he learned that Judge Ettinger was assigned to hear the case.
In Bravo, an employee filed a complaint alleging discrimination and describing certain incidents. After a demurrer was sustained, the employee filed a new complaint alleging additional discrimination and retaliation occurring after the first action. The case was transferred to the judge who had heard the first case. The employee filed a timely peremptory challenge but the trial court rejected the challenge finding the second case was a continuation of the first case in that it involved identical parties and identical causes of action. The appellate court reversed, concluding even though the two cases involved the same employee and the same employer, the second action was based on later events, separate and distinct from the first action. (Bravo v. Superior Court, supra, 149 Cal.App.4th at p. 1494.)
Kleinfelder opposed the peremptory challenge, citing Le Louis v. Superior Court (1989) 209 Cal.App.3d 669. In Le Louis, the defendant, who was charged with two counts of solicitation of murder, filed a peremptory challenge before the preliminary hearing. Thereafter, the district attorney filed a second felony challenge, alleging an additional charge and adding a second defendant. The two cases were consolidated and single information was filed in the superior court. When the same defendant filed a peremptory challenge, the superior court judge rejected the challenge, finding the defendant had exhausted his one peremptory challenge. The Le Louis court affirmed, holding the preliminary hearing is a component of the criminal action and continues through the superior court proceedings, including trial. (Id. at pp. 678-679.) Thus, the defendants choice to use his single individual challenge at arraignment precluded him from asserting additional challenges at subsequent stages of the same action. (Ibid.)
Contrary to Kleinfelders contention, the circumstances of this case are completely unlike the circumstances in Le Louis, in which a single party filed a peremptory challenge in the same criminal action. Here, there are individual plaintiffs who, at the commencement of the five separate actions, were clearly in adverse positions and continued to allege causes of action against each other even after consolidation and the filing of a master complaint.
4. Analysis.
Each of the five separate complaints alleged causes of action against each plaintiff in the other four cases. The only common factor in the five cases is that the injuries are based on the same landslide. Even after consolidation and the filing of a master complaint, each plaintiff clearly was in a position adverse to each other plaintiff. Nothing in the record provided to this court indicates that any homeowner can be considered as having a common interest with the other homeowners other than all homeowners are in an adversarial position as to Kleinfelder.
The mere fact that settlement was reached among some of the parties is not sufficient to consider the consolidated complaint a "continuation" of the five individual cases. Each plaintiff in the five cases owns separate property and has separate claims against Kleinfelder. This case is not unlike Nissan Motor Corp. v. Superior Court, supra, 6 Cal.App.4th 150, in which the court concluded the consolidated cases were separate and distinct and each party was entitled to separate peremptory challenges. (Id. at p. 155.)
CONCLUSION
At the commencement of the litigation, each of the five plaintiffs was a defendant in the separate lawsuits filed by the four other plaintiffs. The subsequent consolidation and the settlement with all defendants did not change the adversial relationship and accordingly does not place them into the same position for purposes of section 170.6.
The statutory right to disqualify a judge " `is liberally construed and the trend is to grant relief unless absolutely forbidden by statute. " (Hemingway v. Superior Court (2004) 122 Cal.App.4th 1148, 1154.) Accordingly, we conclude that Saglime is entitled to file a section 170.6 peremptory challenge in his own right and the trial court erred in rejecting the challenge.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to: (1) vacate the order entered on April 13, 2009; (2) enter in its place an order accepting the peremptory challenge filed pursuant to section 170.6; and (3) transfer the case for assignment to a new judicial officer.
The stay order issued on April 28, 2009 is lifted.
No costs are awarded in this proceeding.
We concur:
KITCHING, J.
ALDRICH, J.