Filed 8/28/20 Palomar Health 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PALOMAR HEALTH,
Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO COU NTY,
Respondent; D077802
(San Diego County Super. Ct. No. 37

- 2020

- 00014034

- CU

- WT

- CTL)

TERRI WIEDRE,
Real Party in Interest.

ORIGINAL PORCEEDING in mandate. Katherine A. Bacal, Judge. Petition granted. Fisher & Phillips and David E. Amaya, Megan E. Walker, and Kevonna Ahmad for petitioner. No appearance for respondent. Shegerian and Associates and Carney Shegerian for real party in
interest.2

Palomar Health petitions for a writ commanding the superior court to grant a motion to dis qualify the judge assigned to the civil action filed against it and others by Terri Wiedre. We grant the petition. BACKGROUND
Wiedre sued Palomar Health and others in superior c ourt for damages for employment discrimination, wrongf ul discharge, and other torts. The case was assigned for all purposes to a judge. On July 28, 2020, as its f irst appearance in the action, Palomar Health filed a motion to disqualify the judge (also called a peremptory challenge). (Code Civ. Proc., § 170.6.) The
motion was in the form prescribed by statute ( id. , § 170.6, subd. (a)(6)), listed Palomar Health as the entity making the motion , checked the box for a party, and was signed under penalty of perjury by Palomar Heal th’s attorney, David E. Amaya. On July 29, the judge denied the motion because the “ declaration [was] not signed b y declarant (Palomar Health).” On July 31, Amaya
submitted a second form motion to disqualify the judge , listing himself as the entity making the motion , check ing the box for an attorney, and s igning the form under penalty of perjury

. The j udge denied the motion and wrote on the order, “ only on e motion per side & untimely.” Palomar Health promptly petitioned this court for a writ directing the superior court to vacate the order denying the Ju ly 31 motion and to enter a new order granting it and requested a stay of further proceedings in the superior court until this court ruled on the petition. (Code Civ. Proc., § 170.3, subd. (d).) We granted the stay, notified the parties that we were cons idering issuing a peremptory writ in the first instance, and invited Wiedre to file a response to the petition. ( Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178

- 180.) Wiedre responded that she did not oppose the relief
that Palomar had requested.3 DISCUSSION The superior court erred by denying as untimely the July 31 motion to disqualify. When a civil action has been assigned to a judge for all purposes, a defendant or an attorney representing the defendant may file a motion to disq ualify the judge within 15 days of the defendant’s first appearance in the action. (Code Civ. Proc., § 170.6, subd. (a)(2).) The July 31 motion, filed three days after Palomar Health first appeared in the action, was therefore timely. The superior court also erred by denying the July 31 motion as an impermissible second motion by the same side. “ In actions or special proceedings where there may be more than one plaintiff or similar party

or more than one defendant or similar party appearing in the actio n 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.) Earlier in the same paragraph, the quoted statute refers to a “duly presented” motion, w hich “without any further act or proof” requires reassignment of the case to a different judge. ( Ibid. ) The purpose of the one

motion

- per
- side rule is to prevent “ abuse [] by parties seeking to delay trial or to obtain a favorable judge” by filing success ive disqualification motions. ( Johnson v. Superior Court (1958) 50 Cal.2d 693, 697 ; accord, The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032. ) Therefore, the limit of one motion per side is not met until a motion results in the disqualifi cation of the assigned judge. (See Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 62 [“ By enacting section 170.6 , the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice ”].) Palomar Health’s first motion, filed on July 28 as its first appearance in the underlying action, did not result in the disqualification of4

the assigned judge; it was denied for a perceived procedural defect. The second motion, filed three days later by Palomar Health’s attorney, was therefore not barred by the one

- motion

- per
- side rule. Where, as here, “a party timely files, in proper form, a motion to disqualify a judge based upon [Code of Civil Procedure section 170.6], the
trial court is bound to acc ept the disqualification without further inquiry.” ( The Home Ins. Co. v. Superior Court , supra , 34 Cal.4th at p. 1032.) To correct the superior court’s error in refusing to do so, a peremptory writ in the first instance is appropriate. There are no mate rial facts in dispute, the applicable law is settled, Palomar Health is clearly entitled to relief, disqualification issues require prompt resolution, and no useful purpose would be served by plenary consideration of the issue. (Code Civ. Proc., § 1088; L ewis v. Superior Court (1999) 19 Cal.4th 1232, 1240

- 1241 ; Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 416 .)5 DISPOSITION Let a writ issue commanding respondent, immediately upon receipt of the writ, to vacate its order denying the July 31, 2020 mot ion to disqualify (peremptory challenge) and to enter a new order granting the motion

. The stay previously issued by this court will dissolve upon finality of this opinion. The parties will bear their own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B) .) AARON , J.

WE CONCUR:

BENKE , Acting P. J.

IRION, J.