Filed 5/14/14

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ORION COMMUNICATIONS, INC., et 

al.,

Petitioners,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D064979

 (San Diego County Super. Ct.

 No. 37-2009-00087082-CU-BT-CTL)

SAMEIS HOLDINGS, LLC,

Real Party in Interest.

PETITION for writ of mandamus challenging order of the Superior Court of San 

Diego County, Timothy B. Taylor, Judge. Petition granted.

Chapin Fitzgerald, Kenneth M. Fitzgerald and Jennifer Arnold for Petitioner Orion 

Communications, Inc.

Moscone Emblidge Sater & Otis, G. Scott Emblidge and Matthew K. Yan for 

Petitioners City of San Diego and TEGSCO, LLC.
2

No appearance for Respondent.

Broker & Associates and Jeffrey W. Broker for Real Party in Interest.

Orion Communications, Inc., TEGSCO, LLC, doing business as San Francisco 

AutoReturn, and City of San Diego (together Orion) filed a petition for writ of mandamus 

challenging an order granting a Code of Civil Procedure1 section 170.6 peremptory 

challenge filed by Sameis Holdings, LLC (Sameis) after Orion filed a motion to add 

Sameis as a judgment debtor along with the original judgment debtor, Dispatch & 

Tracking Solutions, LLC (DTS). Orion contends the trial court erred by granting the 

section 170.6 peremptory challenge because Sameis is not a party to the action within the 

meaning of section 170.6. Orion alternatively contends that because DTS previously 

filed a section 170.6 peremptory challenge and there is insufficient evidence to support a 

finding that the interests of DTS and Sameis are substantially adverse, the one challenge 

per side rule applies to bar a subsequent section 170.6 peremptory challenge by Sameis. 

Because we agree with Orion's second contention, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND2

In 2009, Authorized City Towing and other plaintiffs (together ACT) filed a first 

amended complaint against the City of San Diego (City), TEGSCO, LLC, doing business 

 

1 All statutory references are to the Code of Civil Procedure unless otherwise 

specified.

2 Because the factual and procedural background of the main civil action is not 

material to our disposition of the instant petition, we provide only a brief summary of the 

facts and procedural events in the action.
3

as AutoReturn (AutoReturn), DTS and other defendants, apparently arising out of City's 

2008 decision to terminate its contract with ACT for a computer-based system for 

managing the towing of vehicles, and instead award the contract to AutoReturn.

In 2011, DTS filed a first amended cross-complaint against Orion, and other crossdefendants alleging causes of action for misappropriation of trade secrets. In January 

2012, DTS filed a section 170.6 peremptory challenge to San Diego County Superior 

Court Judge Gonzalo Curiel. The challenge was granted and the case was reassigned to 

San Diego County Superior Court Judge Timothy Taylor. Thereafter, the trial court 

(Judge Taylor) granted Orion's motions for summary judgment on DTS's crosscomplaint. The court also awarded Orion Communications, Inc., attorney fees of 

$120,000 and City and AutoReturn attorney fees of $450,000 pursuant to Civil Code 

section 3426.4. On February 28, 2013, the trial court entered an amended judgment 

reflecting its summary judgment and awards of attorney fees against DTS.

Apparently after unsuccessful efforts to enforce the judgment against DTS, Orion 

filed a motion to amend the judgment to add Sameis as a judgment debtor. Orion argued 

Sameis was the alter ego of DTS and was liable as the successor to DTS's business. 

Sameis filed its opposition to the motion.

On or about November 1, 2013, Sameis filed a section 170.6 peremptory challenge 

to Judge Taylor, asserting it was a proposed party in the action under the motion to 

amend and stating its belief a fair and impartial trial or hearing could not be had before 

him. Orion filed its opposition to the peremptory challenge, asserting Sameis was not a 

party to the action and therefore could not make a challenge under section 170.6. Orion 
4

alternatively asserted that even were Sameis a party to the action, Sameis was on the 

same side as DTS and, because DTS had already exercised its side's only section 170.6 

peremptory challenge, there was no remaining peremptory challenge available.

On November 6, 2013, the trial court issued the instant order (Order) granting 

Sameis's section 170.6 peremptory challenge. The court stated: "There is much to 

recommend the position taken by Orion in this matter. . . . [S]ection 170.6 challenges 

appear to be limited to parties to the action." However, citing our failure to immediately 

deny a writ petition in another case involving a similar peremptory challenge (Geraci v. 

Superior Court (D064812)), the trial court apparently concluded Sameis may be 

considered a party under section 170.6 and granted the peremptory challenge. In so 

doing, the court did not expressly address Orion's alternative assertion that Sameis was 

on the same side as DTS and therefore there was no peremptory challenge left for its side 

to make.

Orion filed the instant petition for writ of mandamus, challenging the Order. It 

also filed a motion requesting that we take judicial notice of (1) our summary denial of 

the Geraci writ petition in Case No. D064812 on November 7, 2013, and (2) papers filed 

in a pending action between Sameis and Orion in the Texas courts.3 Sameis filed a 

 

3 We grant Orion's request that we take judicial notice of the Geraci order and deny 

its request to take judicial notice of papers filed in the Texas proceeding. (Evid. Code, 

§§ 451, subd. (a), 452, subd. (c), 459, subd. (a).) Except for the Geraci order, we have 

restricted our review of the exhibits submitted by both parties to those exhibits presented 

to and considered by the trial court in deciding Sameis's peremptory challenge. In so 

doing, we have disregarded all other exhibits in deciding the merits of this case and 

therefore decline to take the additional action of striking certain exhibits from the record. 
5

preliminary opposition to the petition. We issued an order to show cause why the relief 

requested in the petition should not be granted. Because Sameis did not timely file an 

objection, we consider its preliminary opposition to be its return to the order to show 

cause.

DISCUSSION

I

Section 170.6 Peremptory Challenges Generally

"[S]ection 170.6 permits a party to an action or proceeding to disqualify a judge 

for prejudice based on a sworn statement, without having to establish prejudice as a fact 

to the satisfaction of a judicial body. [Citation.] If a peremptory challenge motion in 

proper form is timely filed under section 170.6, the court must accept it without further

inquiry." (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59.)

"The right to exercise a so-called peremptory challenge against a judge is a 

creation of statute--it did not exist in the common law predating enactment of section 

170.6." (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1031 (Home 

Ins.).) Section 170.6 provides:

"(a)(1) A judge, court commissioner, or referee of a superior court 

of the State of California shall not try a civil or criminal action or 

special proceeding of any kind or character nor hear any matter 

therein that involves a contested issue of law or fact when it is 

established as provided in this section that the judge or court 

commissioner is prejudiced against a party or attorney or the interest 

of a party or attorney appearing in the action or proceeding.

 

(People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173-1174, fn. 5; People v. 

Zamora (1980) 28 Cal.3d 88, 96.)
6

"(2) A party to, or an attorney appearing in, an action or proceeding 

may establish this prejudice by an oral or written motion without 

prior notice supported by affidavit or declaration under penalty of 

perjury, or an oral statement under oath, that the judge, court 

commissioner, or referee before whom the action or proceeding is 

pending, or to whom it is assigned, is prejudiced against a party or 

attorney, or the interest of the party or attorney, so that the party or 

attorney cannot, or believes that he or she cannot, have a fair and 

impartial trial or hearing before the judge, court commissioner, or 

referee. . . . [¶] . . . [¶]

"(4) If the motion is duly presented, and the affidavit or declaration 

under penalty of perjury is duly filed or an oral statement under oath 

is duly made, thereupon and without any further act or proof, the 

judge supervising the master calendar, if any, shall assign some 

other judge, court commissioner, or referee to try the cause or hear 

the matter. . . . Except as provided in this section, no party or 

attorney shall be permitted to make more than one such motion in 

any one action or special proceeding pursuant to this section. 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 action or special proceeding, only one motion for 

each side may be made in any one action or special proceeding." 

(Italics added.)

"[S]ection 170.6 is designed to prevent abuse by parties that merely seek to delay a 

trial or obtain a more favorable judicial forum. [Citations.] An important element of that 

design is the limitation, in any one action, of each party to a single motion, or each side to 

a single motion, should there be more than one plaintiff or defendant. (§ 170.6, subd. 

[(a)(4)].) The phrase 'only one motion for each side' contemplates that one side may 

consist of several parties, and a peremptory challenge by any party disqualifies the judge 

on behalf of all parties on that side. [Citation.] This limitation also reflects the general 

aim of the legislation to strike a balance between the needs of litigants and the operating 

efficiency of the courts. [Citation.] [¶] To effectuate the Legislature's intent, our courts 
7

'have been vigilant to enforce the statutory restrictions on the number and timing of 

motions permitted.' " (Home Ins., supra, 34 Cal.4th at pp. 1032-1033.) To effectuate that 

intent, our courts have held "when a party on the same side has exercised its right to 

disqualify a judge, a late-appearing party 'has no right to challenge the then-current 

judge[,] because that side has used its one challenge.' " (Id. at p. 1033.)

Nevertheless, in certain circumstances, section 170.6 permits the exercise of a 

peremptory challenge by more than one plaintiff or defendant. (Home Ins., supra, 34 

Cal.4th at pp. 1033-1034.) In Johnson v. Superior Court (1958) 50 Cal.2d 693, at page 

700, the court interpreted section 170.6's one challenge per side limitation and concluded 

a party may be considered to be on a different side than other parties with which it is 

joined when the joined parties have interests that are "substantially adverse." In Pappa v. 

Superior Court (1960) 54 Cal.2d 350, at page 354, the court concluded that after one 

codefendant disqualified the judge pursuant to section 170.6, the burden was on the party 

(i.e., the other codefendant) seeking to exercise a subsequent peremptory challenge to 

establish that her interests were substantially adverse to those of the first codefendant. 

"Subsequent civil and criminal decisions . . . uniformly have recognized that the party 

seeking a subsequent disqualification of the trial judge has the burden of demonstrating 

that its interests are substantially adverse to those of a coparty that previously exercised a 

peremptory challenge--substantially adverse interests are not presumed." (Home Ins.,

supra, 34 Cal.4th at p. 1035.)

The question whether joined parties (e.g., codefendants) are on the same side 

within the meaning of section 170.6 is a factual one. (Home Ins., supra, 34 Cal.4th at 
8

p. 1036.) "[A] party that seeks to exercise a subsequent peremptory challenge on the 

ground that, in effect, it is on a different side from another party despite appearances to 

the contrary, is required to provide evidence of a conflict to enable the trial court to 

decide whether the interests of the joined parties are actually substantially adverse." (Id. 

at p. 1037, italics added.) "[T]he circumstance that the plaintiff belatedly names a party 

as a defendant [does not] establish that that party's interests are substantially adverse to 

earlier named defendants." (Ibid.) In Home Ins., the court concluded: "The mere 

likelihood of, or potential for, a conflict between the [joined parties] did not and could 

not establish, in lieu of a factually sufficient demonstration of substantially adverse 

interests, that these coparties were on different sides within the meaning of section 

170.6." (Ibid.)

II

Insufficient Evidence to Show Sameis and DTS Are Not on the Same Side

Orion contends the trial court erred by granting Sameis's section 170.6 peremptory 

challenge because Sameis did not present sufficient evidence showing it is not on the 

same side as DTS for purposes of section 170.6's one challenge per side limitation.

A

On the first page of Sameis's section 170.6 peremptory challenge, its attorney, 

Jeffrey W. Broker, declared under penalty of perjury that Judge Taylor was prejudiced 

against Sameis, or its attorney, or the interests of Sameis or its attorney, such that Sameis 

believes a fair and impartial trial or hearing could not be had before Judge Taylor. The 

second and third pages of its section 170.6 peremptory challenge were not part of 
9

Broker's declaration under the penalty of perjury, but instead consisted, in effect, of 

Broker's arguments regarding why Sameis should be able to make a section 170.6 

challenge. Broker argued that:

"3. Sameis anticipates that it may be argued that its interests are not 

substantially adverse to those of DTS. Such an argument is incorrect 

for the following reasons: [¶] . . . [¶]

"B. Sameis did not legally exist when this litigation was filed. 

Sameis is a bona fide purchaser for value having bought the assets of 

DTS and Compiled Logic from the foreclosing bank. Sameis has 

never owned DTS'[s] interests in the subject litigation. Sameis has 

never been a party to this litigation;

"C. The conflicts between Sameis and DTS are substantial enough 

that Sameis must be represented by separate counsel due to conflicts 

of interest; and

"D. DTS remains a defendant in the subject litigation under 

[Orion's] complaint. It is undisputed that those claims do not relate 

in any way to Sameis. In fact, the adverse claims that remain against 

DTS and Defendant Lawrence Estes are substantially adverse to any 

position Sameis would ever reasonably adopt in this litigation.

"4. Sameis'[s] interests have been adverse to DTS since the date 

Sameis acquired DTS's former assets from the bank: On August 4, 

2010, Sameis purchased the assets previously owned by DTS from 

Encore Bank, National Association. A true and correct copy of the 

Bill of Sale and Transfer Statement is attached as Exhibit '1'. The 

Bill of Sale memorializes that Sameis paid $37,500 for the personal 

property assets of DTS, which assets Encore Bank had recently 

foreclosed upon, after DTS and its sole member[,] Compiled Logic, 

defaulted on loan obligations owing to Encore Bank. Exhibit A to 

the Bill of Sale (EX. 1) lists all of the categories of personal property 

formerly owned by DTS that Sameis acquired from the Bank. This 

list of assets does not include the present lawsuit. The present 

lawsuit never left DTS and DTS continues to retain the present 

lawsuit. [¶] . . . [¶]

"6. As of the date that Sameis acquired DTS's assets, the interests of 

Sameis became substantially adverse to DTS's interests relating to 
10

the present lawsuit. The parties' interests were adverse because DTS 

was a defendant in this lawsuit for conduct occurring prior to when 

Sameis acquired DTS's assets from the bank, while Sameis was not a 

party in the lawsuit. Obviously, DTS could not assign to the bank, 

nor would the bank have foreclosed upon DTS'[s] position as a 

defendant in this lawsuit. Moreover, DTS retained its interest in its 

affirmative legal claims for conduct occurring before the August 4, 

2010[,] asset purchase, while Sameis had no interest in those claims. 

On the other hand, the parties' interests were also substantially 

adverse because as of August 4, 2010, Sameis owed 100% of the 

assets formerly owned by DTS, while DTS and Compiled Logic lost 

all interest in these assets as a result of the foreclosure.

"7. Through their recently filed motion to amend the judgment to 

include Sameis as a judgment debtor, Orion contends that DTS is 

Sameis'[s] alter ego, or that Sameis is DTS'[s] successor, such that 

Sameis should also be liable for the judgment in this matter. 

Sameis'[s] primary interest is that alter ego and/or successor liability 

not be imposed against it, because such finding(s) could make 

Sameis a judgment debtor and co-obligor in this action. By contrast, 

DTS, as sole judgment debtor, would directly benefit from a finding 

that DTS is Sameis'[s] alter ego, or that Sameis is the successor of 

DTS, because such finding(s) would potentially create an additional 

source of funds from which the judgment against DTS could be 

satisfied. As a result, DTS's and Sameis'[s] interests are in direct 

conflict. Indeed, the divergent interests present such a substantial 

conflict of interests between Sameis and DTS that they must retain 

separate counsel. It is clear that Sameis already has affirmative 

claims against DTS should it chose to pursue those claims."

Orion opposed Sameis's section 170.6 peremptory challenge, arguing Sameis was 

not a party to the action and therefore could not make a challenge under section 170.6. 

Orion noted that Sameis admitted in its challenge "Sameis has never been a party to this 

action." Orion alternatively argued that even were Sameis a party to the action, it was on 

the same side as DTS in the action. On January 25, 2012, DTS exercised its side's only 

section 170.6 peremptory challenge when it challenged Judge Curiel. Therefore, there 

was no remaining peremptory challenge for Sameis to make. Orion argued Sameis had 
11

not met its burden to show that it and DTS have substantially adverse interests and 

therefore are not on the same side. On the contrary, as Orion argued, the interests of 

Sameis and DTS are closely aligned.

The trial court issued the Order granting Sameis's section 170.6 peremptory 

challenge. However, in so doing, the court relied on Sameis's apparent status as a party 

to the action and did not expressly address Orion's alternative assertion that Sameis was 

on the same side as DTS and therefore there was no peremptory challenge left for its side 

to make.

B

Based on our review of the record, we conclude, as Orion asserts, the trial court 

erred by granting Sameis's section 170.6 peremptory challenge because Sameis did not 

present sufficient evidence showing it is not on the same side as DTS for purposes of 

section 170.6's one challenge per side limitation. In filing a section 170.6 peremptory 

challenge, Sameis, as a potential judgment debtor along with DTS, had the burden to 

present evidence showing it and DTS have substantially adverse interests with respect to 

the motion to amend the judgment in the action. (Home Ins., supra, 34 Cal.4th at 

p. 1037; People v. Escobedo (1973) 35 Cal.App.3d 32, 41 [no conflict shown between 

two defendants regarding motion to suppress evidence].) It is a question of fact whether 

two joined parties are on the same side for purposes of section 170.6 or whether they 
12

have substantially adverse interests.4 (Home Ins., supra, 34 Cal.4th at p. 1036.) 

Although the Order did not contain any express discussion of the issue, we conclude the 

trial court, by granting the peremptory challenge, implicitly found Sameis and DTS have 

substantially adverse interests and are not on the same side for purposes of section 170.6's 

one challenge per side limitation. Because that finding was based on the undisputed facts 

set forth in Sameis's peremptory challenge, we determine de novo, or independently, 

whether the trial court erred in so finding.5 (Ziesmer v. Superior Court (2003) 107 

Cal.App.4th 360, 363; Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 

493 [independent standard of review applies because "the correctness of the 

disqualification order turns on the application of law to undisputed facts"].)

Our independent review of Sameis's evidence shows it did not meet its burden to 

present sufficient evidence showing it and DTS have substantially adverse interests. Our 

review of the record shows the only proper evidence presented by Sameis in its section 

170.6 peremptory challenge is, as Orion asserts, the statements set forth in Broker's 

declaration under penalty of perjury. (§ 2015.5 [regarding declarations]; Cal. Rules of 

 

4 For purposes of this opinion, we assume arguendo, but do not decide, that Sameis 

is considered a party to the action within the meaning of section 170.6.

5 Although there are cases that pronounce the abuse of discretion standard of review 

applies to a court's grant or denial of a section 170.6 peremptory challenge, we believe, in 

the circumstances of this case, the trial court did not have any discretion to exercise in 

determining whether Sameis presented sufficient evidence to show it and DTS have 

substantially adverse interests and therefore are not on the same side within the meaning 

of section 170.6. (See, e.g., Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 

1315; Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098.)
13

Court, rule 3.1306(a) [regarding evidence allowed at law and motion hearings]; Strauch 

v. Eyring (1994) 30 Cal.App.4th 181, 186 [verified pleadings generally may not be used 

in motion proceedings in lieu of affidavits or declarations]; In re Marriage of Reese & 

Guy (1999) 73 Cal.App.4th 1214, 1222-1223 [unsworn declarations are improper and 

cannot be considered].) However, that declaration states only Sameis's belief that a fair 

and impartial trial or hearing cannot be held before Judge Taylor because he is prejudiced 

against it or its attorney or their interests. That declaration does not present any evidence 

on the question of whether Sameis and DTS have substantially adverse interests and 

therefore are not on the same side. The California Supreme Court has stated: "[A] party 

that seeks to exercise a subsequent peremptory challenge on the ground that, in effect, it 

is on a different side from another party despite appearances to the contrary, is required to 

provide evidence of a conflict to enable the trial court to decide whether the interests of 

the joined parties are actually substantially adverse." (Home Ins. Co., supra, 34 Cal.4th 

at p. 1037, italics added.)

The arguments and factual assertions made in Sameis's section 170.6 peremptory 

challenge appearing on the pages following Broker's declaration (i.e., those labeled as 

pages 2 and 3) are not evidence, but rather merely argument on the issue. (See § 2015.5 

[regarding declarations]; Cal. Rules of Court, rule 3.1306(a) [regarding evidence allowed 

at law and motion hearings]; cf. Strauch v. Eyring, supra, 30 Cal.App.4th at p. 186; In re 

Marriage of Reese & Guy, supra, 73 Cal.App.4th at pp. 1222-1223 [unsworn declarations 

are improper and cannot be considered].) Absent any evidence on that question, we 

conclude Sameis did not meet its burden to present evidence showing it and DTS have 
14

substantially adverse interests and therefore are not on the same side within the meaning 

of section 170.6's one challenge per side limitation. (Marriage of Reese & Guy, at 

pp. 1222-1223.)

Nevertheless, assuming arguendo that Sameis's arguments and factual assertions 

appearing on pages 2 and 3 of its section 170.6 peremptory challenge, as quoted above, 

constitute evidence for purposes of its peremptory challenge, we conclude none of those 

arguments or factual assertions show Sameis and DTS have substantially adverse 

interests and therefore are not on the same side for purposes of section 170.6's one 

challenge per side limitation. Sameis's assertion that it did not exist when the underlying 

action was filed does not show it is not on the same side as DTS or that they have 

substantially adverse interests. The California Supreme Court stated: "[T]he 

circumstance that the plaintiff belatedly names a party as a defendant [does not] establish 

that that party's interests are substantially adverse to earlier named defendants." (Home 

Ins., supra, 34 Cal.4th at p. 1037.) Therefore, the fact Sameis was not incorporated and 

therefore could not become a party or potential party by joinder or otherwise until after 

ACT's action was filed does not show it and DTS have substantially adverse interests.

The fact Sameis purchased from a foreclosing bank certain assets previously 

owned by DTS, but not DTS's interest in its cross-complaint in the action, does not show 

Sameis and DTS have substantially adverse interests in relation to the action or to Orion's 

motion to amend the judgment to add Sameis as a judgment debtor. DTS presumably had 

lost all right, title and interest in and to those assets prior to Sameis's purchase of those 

assets from the foreclosing bank. Therefore, Sameis's ownership of those assets is 
15

irrelevant to the question of whether it and DTS have substantially adverse interests in the 

action and in Orion's motion to amend the judgment to add Sameis as a judgment debtor. 

Because DTS no longer has any interest in those assets, there can be no conflict with 

Sameis based on Sameis's ownership of those assets and, in particular, regarding the 

motion to amend.6

The fact "Sameis has never been a party to this litigation" does not show it and 

DTS have substantially adverse interests. As we discussed above, when a plaintiff 

belatedly names a party as a defendant, that does not show that party's interests are 

substantially adverse to earlier named defendants. (Home Ins., supra, 34 Cal.4th at 

p. 1137.) Likewise, the fact Sameis has not yet been named a party to the action does not 

show its interests are substantially adverse to DTS's interests.

The fact Sameis and DTS have separate counsel because of conflicts of interest 

does not show they have substantially adverse interests in the action and motion to 

amend. Section 170.6, subdivision (a)(4), provides that joined parties, such as 

codefendants, generally will be considered to be on the same side for purposes of its one 

challenge per side limitation. Therefore, it is presumed that Sameis, a proposed party and 

judgment debtor, and DTS, an existing party and judgment debtor, are on the same side. 

It was Sameis's burden to present evidence showing it and DTS have, in fact, 

substantially adverse interests in the action and motion to amend. Sameis's conclusory 

 

6 Likewise, the fact DTS retained its cross-claims against other codefendants in the 

action and Sameis has no interest in those cross-claims does not show they have 

substantially adverse interests in the action or the motion to amend.
16

assertion that it and DTS have separate counsel because of conflicts of interest is 

insufficient to meet that burden. Sameis did not describe the nature of the conflict of 

interest, much less that it involves a conflict in the specific matter at hand--i.e., the 

motion to amend. The California Supreme Court has stated: "[T]he mere fact that 

[codefendants] choose to be represented by separate counsel does not show that [a section 

170.6] conflict of interests exists." (Pappa v. Superior Court, supra, 54 Cal.2d 350, 355.) 

Therefore, the fact Sameis and DTS chose to have separate counsel because of some 

unspecified conflict of interest does not show they have substantially adverse interests. 

Furthermore, the mere likelihood of, or potential for, a conflict between Sameis and DTS 

did not, and could not, establish they are on different sides within the meaning of section 

170.6. (Home Ins., supra, 34 Cal.4th at p. 1037.)

Sameis argues the adverse claims that remain against DTS in the action do not 

relate to Sameis, and those claims are adverse to any position Sameis would adopt in the 

action. That argument is irrelevant to Orion's motion to amend the judgment to add 

Sameis as a judgment debtor, the only part of the action for which there could be an 

existing conflict of interest under section 170.6, subdivision (a)(4). (People v. Escobedo, 

supra, 35 Cal.App.3d at p. 41.) Furthermore, there is no indication Sameis will be added 

as a codefendant in ACT's action against Orion, DTS and the other defendants, or that, 

even if it was added, that Sameis's interests would actually be substantially adverse to 

DTS or the other codefendants.

Sameis also argues it and DTS have substantially adverse interests in the motion to 

amend because if it (Sameis) is added as a judgment debtor, DTS would benefit by 
17

potentially being relieved from paying all or part of the judgment. However, the fact that 

codefendants may be jointly liable for a judgment against them is insufficient to show 

they have substantially adverse interests for purposes of section 170.6, subdivision (a)(4). 

As discussed above, section 170.6, subdivision (a)(4), provides that joined parties, such 

as codefendants, generally will be considered to be on the same side for purposes of its 

one challenge per side limitation. If codefendants are presumed to be on the same side, 

the fact that codefendants may ultimately become jointly liable as judgment debtors 

should not make any difference. The "side" of codefendants bears the same or similar 

risk of becoming liable for all or part of a judgment. Therefore, the fact Sameis may be 

made a judgment debtor along with DTS does not show, by itself, they have substantially 

adverse interests.

Finally, Sameis argues it "already has affirmative claims against DTS should it 

[choose] to pursue those claims." However, Sameis does not describe the nature of those 

claims against DTS. Absent any description of those claims, Sameis has not carried its 

burden to present evidence showing it and DTS have substantially adverse interests in the 

action and the motion to amend. Nevertheless, to extent Sameis's argument is that it has, 

or will have, affirmative claims against DTS should Sameis be made a judgment debtor, 

those claims are insufficient to show they have substantially adverse interests in the 

action or motion to amend.

We conclude Sameis has not carried its burden to present sufficient evidence 

showing it and DTS have substantially adverse interests and therefore are not on the same 

side within the meaning of section 170.6, subdivision (a)(4). Because Sameis has not 
18

carried its burden, section 170.6, subdivision (a)(4)'s limitation applies to Sameis and 

DTS. As members of the same side, they have only one section 170.6 peremptory 

challenge to exercise. In January 2012, DTS filed a section 170.6 peremptory challenge 

to Judge Curiel. That peremptory challenge exhausted its side's sole peremptory 

challenge. Because Sameis could not thereafter exercise a subsequent section 170.6 

peremptory challenge, the trial court (Judge Taylor) erred by granting its peremptory 

challenge in November 2013.

III

Because we dispose of this petition based on the above ground, we need not, and 

do not, address Orion's alternative contention that the trial court also erred by concluding 

Sameis is a party to the action within the meaning of section 170.6.

DISPOSITION

Let a writ issue directing the trial court to vacate its order of November 6, 2013, 

granting the peremptory challenge and issue a new order denying that challenge. 

Petitioners shall recover their costs in the writ proceeding. (Cal. Rules of Court, rule 

8.493(a)(1)(A).) This opinion shall be final as to this court on May 27, 2014. (Cal. Rules 

of Court, rule 8.490(b)(2)(A).)

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.