San Diego Unified School Dist. v. Super. Ct.

Filed 5/28/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAN DIEGO UNIFIED SCHOOL DISTRICT, D083441

Petitioner,

v. (Super. Ct. No. 37-2022-00044186- CU-PO-CTL) THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

JOHN DOE D.Y.,

Real Party in Interest.

ORIGINAL PROCEEDING on a petition for writ of mandate. Katherine A. Bacal, Judge. Petition granted. Higgs Fletcher & Mack, John Morris, Steven J. Cologne, Susan M. Hack, Jacob T. Spaid, and Steven M. Brunolli for Petitioner. No appearance by Respondent. No appearance by Real Party in Interest.

Code of Civil Procedure section 170.6 empowers a party to assert a peremptory challenge to a judge upon the filing of an affidavit by the party’s attorney. When a party first appears in a civil case after it has already been assigned to a judge for all purposes, the party must assert a challenge under section 170.6 within 15 days of the party’s first appearance. (§ 170.6(a)(2).) Section 170.6(a)(2) provides such a challenge is permissible even if a judge “has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial . . . and not involving a determination of contested fact issues relating to the merits.” (Ibid., italics added.) This writ petition arises out of a lawsuit filed by an adult alleging that he was a victim of childhood sexual assault in elementary school. Under section 340.1 of the same code, every plaintiff 40 years of age or older at the time of filing a childhood sexual assault case must file a certificate of merit for each defendant and cannot serve any defendant until the court determines, “based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant.” (§ 340.1(e), (h).) Additionally, the plaintiff must name each defendant by fictitious designation unless the plaintiff files a certificate of corroborative fact and the court determines, “based solely on the certificate and any reasonable inferences to be drawn from the certificate, [that] one or more facts corroborative of one or more of the charging allegations against a defendant has been shown.” (§ 340.1(m).) The issue of first impression in this proceeding is whether a ruling that a plaintiff may serve and name a defendant in a complaint filed under section 340.1 is a “determination of contested fact issues relating to the merits” under section 170.6(a)(2). We conclude it is not.