City of San Diego v. Super. Ct. CA4/1 ( 2014 )

Filed 12/31/14 City of San Diego v. Super. Ct. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF SAN DIEGO, D067154
Petitioner, (San Diego County
Super. Ct. No. 37-2014-00037716-CU-
v. MC-CTL)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
LIVING GREEN COOPERATIVE, INC.,
et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING in mandate. Ronald S. Prager, John S. Meyer, Judith
F. Hayes, and Richard E.L. Strauss, Judges. Petition granted.
Jan I. Goldsmith, City Attorney, Marlea Dell'Anno, Assistant City Attorney, and
Marsha B. Kerr, Deputy City Attorney, for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
Petitioner the City of San Diego (the City) challenges orders granting successive
peremptory challenges to judges of respondent San Diego County Superior Court (the
trial court) filed by real parties in interest Living Green Cooperative, Inc. (Living Green),
its president, Cary Weaver, and its landlord, Bradley Brown. We grant the petition.
BACKGROUND
The City filed a complaint against Living Green, Weaver, and Brown in the trial
court on November 4, 2014, to enjoin operation of a marijuana dispensary by Living
Green and Weaver on premises owned by Brown. The case was initially assigned to
Hon. Ronald S. Prager. The City calendared for November 19 a hearing before Judge
Prager on an application for a temporary restraining order (TRO), and then personally
served copies of the summons, complaint, and TRO papers on Living Green, Weaver,
and Brown.
A series of peremptory challenges under Code of Civil Procedure section 170.6
followed service of process.
 Living Green filed a peremptory challenge to Judge Prager on November 14, and
the case was reassigned to Hon. John S. Meyer on November 17.
 Weaver filed a peremptory challenge to Judge Meyer on December 2, and the case
was reassigned to Hon. Judith F. Hayes on December 4.
 Nathan A. Shaman, the attorney representing Brown, filed a peremptory challenge
to Judge Hayes on December 5, and the case was reassigned to Hon. Richard E.L.
Strauss on December 10.
 Brown filed a peremptory challenge to Judge Strauss on December 10, but no
action has yet been taken on that challenge.
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After the peremptory challenge to Judge Hayes had been filed but before it was granted,
the City filed an ex parte application with Judge Hayes for an order returning the case to
Judge Meyer on the ground the real parties in interest were limited to one peremptory
challenge. That application was never ruled on.
Frustrated by the successive peremptory challenges from having its TRO
application timely heard, the City petitioned this court for writ of mandate directing the
trial court to set aside the orders granting the peremptory challenges that were filed after
the challenge to Judge Prager and to reassign the case to Judge Meyer. We stayed further
proceedings in the trial court and notified the parties we were considering issuing a
peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984)
36 Cal. 3d 171, 178-180.) Living Green, Weaver, and Brown did not file a response.
DISCUSSION
We conclude the trial court clearly erred by granting Living Green, Weaver, and
Brown more than one peremptory challenge. The peremptory challenge statute expressly
permits only one challenge per side: "In actions or special proceedings where there may
be may be . . . more than one defendant or similar party appearing in the action or special
proceeding, only one motion for each side may be made in any one action or special
proceeding." (Code Civ. Proc., § 170.6, subd. (a)(4), italics added.) Recognizing the
"possibility that the section may be abused by parties seeking to delay trial or to obtain a
favorable judge," the Legislature "permit[ted] only one challenge to each side." (Johnson
v. Superior Court (1958) 50 Cal. 2d 693, 697.) Where, as here, the interests of co-parties
are not substantially adverse, they constitute one "side" under the peremptory challenge
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statute. (The Home Ins. Co. v. Superior Court (2005) 34 Cal. 4th 1025, 1035.) Thus, the
peremptory challenges subsequent to the challenge to Judge Prager were impermissible.
We further conclude issuance of a peremptory writ on the first instance is
appropriate. The material facts are not in dispute, the applicable law is settled, no useful
purpose would be served by full briefing and argument, and the City is clearly entitled to
relief so that it may have its TRO application heard in a timely manner. (See Code Civ.
Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal. 4th 1232, 1240-1241; Fontaine v.
Superior Court (2009) 175 Cal. App. 4th 830, 842.)
DISPOSITION
Let a writ of mandate issue directing the trial court: (1) to vacate all orders
granting peremptory challenges that were filed under Code of Civil Procedure
section 170.6 after November 14, 2014; and (2) to reassign the case to Hon. John S.
Meyer. The stay previously issued by this court is dissolved. This decision shall become
final as to this court upon filing of the opinion. The City is entitled to its costs of this
writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
McDONALD, J.
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