Sizzler USA Restaurants v. Superior Court CA4/1 (2015) · DecisionDepot
Sizzler USA Restaurants v. Superior Court CA4/1
California Court of Appeal May 12, 2015 No. D067889Unpublished
Filed 5/12/15 Sizzler USA Restaurants v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SIZZLER USA RESTAURANTS, INC., D067889
Petitioner, (San Diego County Super. Ct. No. 37-2015-00009033-CU- v. WT-CTL)
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
KAREN BUSCH,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Judith F. Hayes, Judge. Petition
granted.
Fisher & Phillips LLP, Grace Y. Horoupian, Jimmie E. Johnson, and Collin D.
Cook for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
Sizzler USA Restaurants, Inc. (Sizzler) filed a peremptory challenge to the judge
assigned for all purposes to an action Karen Busch commenced against it. The assigned
judge denied the challenge as untimely. Sizzler challenges the denial by a petition for a
On March 17, 2015, Busch filed an employment-related complaint for damages
and other relief against Sizzler in the San Diego County Superior Court (the superior
court). On that same date, the case was assigned to the Honorable Judith F. Hayes for all
purposes. A summons was issued on March 18 and personally served on Sizzler on
March 20. On April 2, Sizzler filed a peremptory challenge to Judge Hayes, pursuant to
Code of Civil Procedure section 170.6. The challenge included a declaration from
Sizzler's counsel stating Judge Hayes is so prejudiced against Sizzler or its counsel that it
will not get a fair hearing before her. Judge Hayes denied the challenge on April 8 as
untimely.
Sizzler challenged the denial by filing a petition for a writ of mandate in this court.
(See Code Civ. Proc., § 170.3, subd. (d).) We stayed further proceedings in the superior
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, 178-179.)
We also requested Busch file a response, but she declined to do so.
DISCUSSION
Sizzler's peremptory challenge was timely. Where, as here, a civil action is
assigned to a judge for all purposes, a peremptory challenge "shall be made to the
assigned judge or to the presiding judge by a party within 15 days after notice of the all
purpose assignment, or if the party has not yet appeared in the action, then within 15
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days after that appearance." (Code Civ. Proc., § 170.6, subd. (a)(2), italics added.)
Sizzler had not yet appeared in the action when the all purpose assignment to Judge
Hayes was made on March 17, 2015, or when it was given notice of that assignment
when it was served with the summons and complaint on March 30. Nevertheless, Sizzler
filed its peremptory challenge to Judge Hayes within 15 days of service, on April 2,
apparently as its first appearance in the action. (See Code Civ. Proc., § 1014 [listing acts
that constitute appearance]; Wilson v. Barry (1951) 102 Cal.App.2d 778, 781 [filing
motion and declaration may constitute appearance].) The challenge was therefore timely
and in proper form, and the superior court was required to grant it. (Zilog, Inc. v.
Superior Court (2001) 86 Cal.App.4th 1309, 1315; Bambula v. Superior Court (1985)
174 Cal.App.3d 653, 658.) The court's denial of Sizzler's peremptory challenge
constituted prejudicial error. (Entente Design, Inc. v. Superior Court (2013) 214
Cal.App.4th 385, 389; In re Robert P. (1981) 121 Cal.App.3d 36, 43.)
Issuance of a peremptory writ in the first instance is appropriate to correct the
superior court's error. We notified the parties we were considering issuing a peremptory
writ in the first instance and gave Busch an opportunity to respond. Since the material
facts are not in dispute, the applicable law is settled, no useful purpose would be served
by full briefing and argument, and Sizzler is clearly entitled to relief, a peremptory writ in
the first instance will issue. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19
Cal.4th 1232, 1240-1241; Bambula v. Superior Court, supra, 174 Cal.App.3d at p. 658.)
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DISPOSITION
Let a writ issue commanding respondent to vacate its April 8, 2015 order denying
the peremptory challenge as untimely, to enter a new order granting the challenge, and to
reassign the case to a different judge. The stay this court issued on April 20, 2015, is
dissolved. The parties shall bear their own costs of this writ proceeding.
MCINTYRE, Acting P. J.
WE CONCUR:
HALLER, J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a peremptory challenge filed by a defendant within 15 days of being served with a summons and complaint is timely under Code of Civil Procedure section 170.6, even if the case was assigned to a judge prior to that service.
Issues
Whether a peremptory challenge filed by a defendant within 15 days of service of the summons and complaint is timely under Code of Civil Procedure section 170.6.
Disposition. Petition granted; writ issued.
Quotations verified verbatim against the opinion
“Sizzler's peremptory challenge was timely.”
“The challenge was therefore timely and in proper form, and the superior court was required to grant it.”
“The court's denial of Sizzler's peremptory challenge constituted prejudicial error.”