Truck Insurance Exchange v. Superior Court

Opinion

LILLIE, P. Petitioners seek a writ of mandamus and/or prohibition to compel respondent superior court to vacate its order of May 20, 1998, granting the challenge of real party in interest, Park Northridge Homeowners Association (hereinafter Park Northridge), to Judge Ronald E. Cappai. The primary issue in this proceeding is whether a party has exhausted its right pursuant to Code of Civil Procedure section 170.6, subdivision (3), to one peremptory challenge per action or proceeding, when its peremptory challenge has been dismissed as untimely.1

Factual and Procedural Background

On April 11, 1997, Judge George Xanthos of the Los Angeles Superior Court, to whom the case was assigned, denied as untimely Park Northridge’s [145]request pursuant to section 170.6 for peremptory disqualification and continued all further proceedings until June 9, 1997. On April 21, Park Northridge filed with this court a petition for writ of mandamus regarding the denial of the peremptory challenge; we denied the petition. On June 5, Park Northridge filed a petition for review in the California Supreme Court.

In June 1997, Judge Xanthos continued to rule on motions in the case and continued the trial date to October 6, 1997.

On July 23, 1997, the California Supreme Court granted Park Northridge’s petition for review and transferred the matter back to this court. This court, thereafter, ordered further briefing and scheduled oral argument. On September 3, 1997, this court stayed all proceedings in superior court pending further order of the court.

On November 6, 1997, counsel for all parties and respondent court appeared before this court for oral argument regarding the denial of Park Northridge’s peremptory challenge. At that time, respondent court’s counsel informed all present that Judge Xanthos had retired from the bench, thus rendering Park Northridge’s petition moot. On December 3, 1997, this court issued an order dismissing Park Northridge’s petition as moot.

The case was thereafter assigned to Judge Cappai and on May 15, 1998, Park Northridge filed a peremptory challenge seeking disqualification of Judge Cappai pursuant to section 170.6. On May 18, Judge Cappai found the challenge to be timely filed and in proper format and the challenge was accepted. The case was transferred forthwith to department 1 for reassignment.