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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.,

Petitioner,

v.

THE SUPERIOR COURT OF

SAN DIEGO COUNTY,

Respondent;

 D067889

 (San Diego County

 Super. Ct. No. 37-2015-00009033-CU-

 WT-CTL)

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 
2

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 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 
3

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.)
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.

MCINTYRE, Acting P. J.

WE CONCUR:

HALLER, J.

MCDONALD, J.