Filed 5/12/15 S izzler USA Restaurants v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APP E AL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA SIZZLER USA RESTAURANTS, INC., Petitioner,

v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; D067889 (San Diego County Super. Ct. No. 37

- 2015

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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 assigned2

judge denied the challenge as untimely. Sizzler challenges the denial by a petition for a writ of mandate. We grant the petition

. BACKGROUND On March 17, 2015, Busch filed an employment

- related complaint for damages and other relief ag ainst Sizzler in the San Diego County Superior Co urt (the superior court). On that same date, t he case was assigned to the Honorable Jud ith F. Hayes for all
purposes. A summons was issued on March 18 and personally served on Sizzler on March 20. On Apri l 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 g et a fair hearing before her. Judge Hayes d enied the challenge on April 8 as
unti mely. 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 pro ceedings in the superior court and notified the parties we were considering issuing a peremp tory writ in the first instance . (See Palma v. U.S. Industrial Fasteners, Inc. (1 984) 36 Cal.3d 171, 178

- 179.) We also requested Busch file a response, but s he de clined 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 153

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].) T he challenge was therefore timely and in proper form , and the superior court was required to grant it

. ( Zilog, Inc. v. Superior Court (200 1) 8 6 Cal.App.4th 130 9 , 1315 ; Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 658.) The court ' s denial of Sizzl er ' 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 t he material facts are not in dispute, the applicable law is settled, no useful purpo se 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; Ba m bula v. Superior Court , supra , 174 Cal.App.3d at p. 658 .)4 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.

M C INTYRE, Acting P. J.
WE CONCUR:

HALLER, J.

M C DONALD, J.