NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
Because Marisa Zimmer, as an individual, filed a peremptory challenge before making her first appearance, and because respondent court had not made a determination of contested fact issues relating to the merits of the action, her peremptory challenge pursuant to Code of Civil Procedure section 170.6 to respondent court was timely and should have been accepted.1
BACKGROUND
On July 7, 2010, Peter Schultz sued David D. Miller, individually and as trustee of the David D. Miller Trust, alleging, inter alia, that Miller had unlawfully terminated Schultz's 27-year employment.
On December 14, after David D. Miller had passed away, Schulz amended his complaint to add successor trustees, including Marisa Zimmer, naming her both in her capacity as a successor trustee and as an individual.
On December 22, before making her first appearance, Zimmer filed her peremptory challenge to the Honorable Ronald M. Sohigian. (§ 170.6.)
Schultz opposed the acceptance of Zimmer's peremptory challenge. Schultz contended that, not only was Zimmer a mere successor in interest to Miller, but that, on September 30, 2010, respondent court had ruled on a contested issue of fact related to the merits of the case when it heard and decided motions to quash subpoenas. In issuing its ruling, respondent court examined the contract, stating at the hearing on the motion, inter alia:
"Mr. Schultz claims that he was wrongfully terminated from his employment and that there is a breach of what I will refer to and what the parties referred to as a deferred compensation agreement and the theory that Mr. Schultz is that the deferred compensation agreement had a provision in it that plaintiff was to get deferred compensation for the work that he provided to Miller up until the deferred compensation agreement's vesting date. This is paragraph number 12 of the complaint.
"Now, with respect to this wrongful termination and claimed breach, the plaintiff has set up ten theories: breach of an implied-in-fact contract, breach of a written contract, an anticipatory breach of a contract—but the difference between that and anything else is difficult to know, but that's the way the plaintiff has pleaded it—Negligent misrepresentation would be the fourth theory. Defamation would be the fifth theory. Age discrimination is the sixth; retaliation is the seventh; promissory fraud is the eighth; wrongful termination . . ., that's the ninth theory, and then violations of various sections of the Labor Code all massed together. That constitutes the tenth theory.
"And as I say, the plaintiff has filed six motions to quash and claims that the information is invasive of the—of the plaintiff's right to privacy, is not relevant, and that it's excessively broad, burdensome, and oppressive.
"What I'm going to do is, after suggesting the way that the parties could resolve this dispute themselves, I'm going to grant the motion in its entirety without prejudice to the defendant's efforts to obtain information relevant to the subject matter of this action by more narrowly-focused requests for identification and production of documents and/or narrowly-focused subpoenas. [¶] . . . [¶] It is correct that, somewhere along the line, the defendants may be able to assert the points that Ms. Rea was talking about and was concerned about which she says are the substantive points involved, and I think I will just comment on those.
"She says—or her client's papers say that the—this deferred compensation agreement is not enforceable because the plaintiff didn't participate in good faith negotiations to determine whether plaintiff had become economically independent and, secondly, that the plaintiff has become economically independent. And so the defendants say you got to show us everything about your financial records. But it seems to me that argument is excessively broad and not meritorious ultimately.
"[O]bviously the records don't pertain at all to whether there's been good faith negotiations. That concept of good faith negotiations is in the deferred compensation agreement section No. 9, and that section No. 9 has the good faith negotiations concept and the so-called economic independence concept. It has both the economic independence concept and the good faith negotiations concept. It does not—that section 9 does not as far as I can tell expressly say that the parties have to enter into good faith negotiations after September 1, 1997. It looks to me therefore on the basis of the current record that the financial records after the1st of September, 1997, would not be pertinent to this case because it would not matter whether plaintiff achieved financial independence after the September 1, 1997, date. It's—it's an odd agreement, but that's what the parties agreed to—or at least that's what's in the writing.
"And I looked through the record, and I can't find anything that indicates the agreement was to be null and void if the plaintiff did achieve economic independence. It says that the amount of annuity payments may be changed or eliminated, but it's difficult for me to see whether the economic—whether the deferred compensation agreement is unenforceable."
Respondent court struck the challenge as untimely, but did not specify in the minute order whether the challenge was untimely because Zimmer was a successor in interest to a deceased party or because respondent court had ruled on a contested issue of fact.
DISCUSSION
I
In general, a party has 15 days after making the first appearance to file a peremptory challenge. (§ 170.6, subd. (a)(2).) "The word `appearance' as it is used in section 170.6 consistently has been interpreted to mean `general appearance.' [Citations.] It has been construed in this fashion for the simple reason that it is only upon the making of a general appearance that a defendant submits to the jurisdiction of the court. [Citation.]" (La Seigneurie U.S. Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504.)
"`The right to exercise a peremptory challenge under Code of Civil Procedure section 170.6 is a substantial right and an important part of California's system of due process that promotes fair and impartial trials and confidence in the judiciary. [Citation.] As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it. [Citation.] 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; proof of actual prejudice is not required. [Citation.]' [Citation.]" (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1359; italics in original.)
We find that Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 501, cited by Schultz, not helpful to our analysis. In that case, a widow, as her deceased husband's successor-in-interest, sued defendant corporation (for damages arising from her late husband's asbestos-related disease) in her capacities as an individual and as her deceased husband's legal heir. For the purpose of determining which party engaged in settlement negotiations pursuant to section 998 to determine costs, the Fourth District concluded there was only one plaintiff, despite the various capacities of Peterson in the litigation.
Instead, we find Stephens v. Superior Court (2002) 96 Cal.App.4th 54, to be instructive. The Fourth District was faced with facts similar to the facts in the instant matter: a beneficiary who was in line to become trustee filed a peremptory challenge pursuant to section 170.6, five days after making his first appearance. The trial court accepted the peremptory challenge, the acceptance of which was later contested. The Fourth District determined that the beneficiary/potential trustee was not barred from filing a peremptory challenge per se as a successor-in-interest, but was barred only because the judge had previously decided a contested fact issue relating to the merits of the matter. (Stephens v. Superior Court, supra, 96 Cal.App.4th at pp. 57-58.)
Because Zimmer, served in two capacities, filed the peremptory challenge before she appeared in the action, her peremptory challenge, in her capacity as an individual, was timely.
II
A peremptory challenge is untimely if the court has ruled on a contested issue of fact related to the merits of the action. "The fact that a judge, court commissioner, or referee 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, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein provided." (§ 170.6, subd. (a)(2), italics added.)
Schultz contends that Zimmer's peremptory challenge is untimely, because Judge Sohigian simply determined that no information relating to events and matters prior to September 1, 1997, was discoverable.
We have long held that most pretrial motions are decided without a determination of contested facts related to the merits of the case. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1133.)
In Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 98 (Guardado), our Division Eight colleagues determined that a ruling allowing pretrial discovery regarding issues bearing on punitive damages pursuant to Civil Code section 3295 was not a decision related to the merits of the action, and, accordingly, concluded that the peremptory challenge pursuant to section 170.6 should have been accepted: "`Merits' cannot mean different things in these two sections; both sections mean to describe by this word the same thing or event, albeit from different perspectives. In [Civil Code] section 3295(c), the judge's decision that there is a probability of success should not affect the actual decision on the merits. In section 170.6, the intent is to ensure that a challenge is made before the judge acts on the merits of the case. That is, under both [Civil Code] section 3295(c) and section 170.6, the decision rendered is separated from the merits of the case. [¶] We have taken into account that the no merit provision of [Civil Code] section 3295(c) refers to a determination `on the merits' while the parallel provision refers to a `determination . . . relating to the merits.' There may be a theoretical distinction between `on the merits' and `relating to the merits.' Whatever that distinction is, it makes no difference since the central idea in both settings is that the decisions made under these two provisions do not implicate, touch upon, or involve the merits of the controversy." (Guardado, supra, 163 Cal.App.4th at p. 96; italics in original.)
Guardado gave examples of where the peremptory challenges pursuant to section 170.6 should have been, or were, granted after motions that did not involve decisions related to the merits of the action were made: "(1) demurrers (Fight for the Rams v. Superior Court (1996) 41 Cal.App.4th 953, 957; Zdonek v. Superior Court (1974) 38 Cal.App.3d 849, 852); (2) judgment on the pleadings (Hospital Council of Northern Cal. v. Superior Court (1973) 30 Cal.App.3d 331, 337,); (3) summary judgment (Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 657);(4) ex parte order on a temporary restraining order (Landmark Holding Group, Inc. v. Superior Court (1987) 193 Cal.App.3d 525, 528); (5) motions for a continuance (Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 417); . . . (7) motions to quash on the ground of lack of personal jurisdiction (School Dist. of Okaloosa County v. Superior Court, supra, 58 Cal.App.4th at pp. 1133-1134; (8) protective orders (Fight for the Rams, supra, at p. 958); and (9) determinations under Penal Code section 995 analyzing the sufficiency of probable cause to hold a criminal defendant for trial. (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 5-6 . . .)." (Guardado, supra, 163 Cal.App.4th at p. 97, fn. 5.)
Some motions do require resolution of contested facts related to the merits of the case. In In re Abdul Y. (1982) 130 Cal.App.3d 847, 859-860, the motion was one to suppress a confession. Schultz relied on Briggs v. Superior Court (2001) 87 Cal.App.4th 312, in which Division Four determined that a challenge for cause under 170.1 was untimely where the trial court had already ruled on a discovery motion involving consideration of the merits of the action (petition to commit Briggs as a sexually violent predator). Our Division Four colleagues explained that "Briggs's motion to exclude Dr. Malinek's report and testimony from the probable cause hearing related to the merits because granting it would have made more difficult the People's sustaining their burden of proof at the probable cause hearing." (Briggs v. Superior Court, supra, 87 Cal.App.4th at p. 317.)
In California Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267, our Division Five colleagues determined that, where a judge had decided a "make or break" issue in a motion for summary adjudication, the peremptory challenge of the unhappy party, Cal Fed, was too late: "In its motion for summary adjudication of issues, Cal Fed presented to Judge Dowds a number of issues involving complex questions of law, not the least of which was the issue involving the contractual interpretation of Cal Fed's promissory note. This was one of the issues which would `make or break' the case for Cal Fed. By characterizing this crucial ruling as one in which the court `merely decides whether a triable issue of fact exists,' Cal Fed exalts form over substance. Just as plaintiffs would have been precluded from filing a section 170.6 peremptory challenge after Judge Dowds's initial adverse rulings, Cal Fed is precluded from filing a similar challenge after Judge Dowds's reconsideration of the issue resulted in a ruling adverse to Cal Fed." (Id. at p. 271.) Although a decision on a summary adjudication motion becomes binding on the parties in the trial court, here, in contrast, any interpretation by Judge Sohigian of the contract relates solely to the extent of the discovery allowed and is not binding on a subsequent motion for summary adjudication or during trial.
In Swift v. Superior Court (2009) 172 Cal.App.4th 878, 883, the Sixth District determined that, where the judge had decided routine motions to compel discovery, such motions did not involve the merits of the action, itself, and, thus, the peremptory challenge pursuant to section 170.6 should not have been struck as untimely: "Although discovery motions may involve disputed issues of fact, the factual issues relate solely to the scope of discovery and do not require the trial court to decide factual issues relating to the merits of the action." (Italics in original.)
The scope of a discovery decision is much broader than the issues to be determined in a case. Basically, the trial court decides whether the information sought is "reasonably calculated to lead to the discovery of admissible evidence" and does not make any binding decisions regarding the actually merits of the matter. (Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1487.) Thus, Judge Sohigian's discovery ruling "does not mean that the merits of the case are implicated." (Guardado, supra, 163 Cal.App.4th at p. 98.)
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate "in the first instance." (§ 1088; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237-1238.) Opposition was requested and the parties were notified of the court's intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISPOSITION
THEREFORE,
Let a peremptory writ issue, commanding respondent superior court to vacate its order of January 3, 2011, striking the peremptory challenge pursuant to Code of Civil Procedure section 170.6, as untimely, and to issue a new and different order accepting same, in Los Angeles Superior Court case No. BC441212. The temporary stay order, staying all proceedings in Los Angeles Superior Court case No. BC441212, before the Honorable Ronald M. Sohigian, shall remain in full force and effect.
The parties shall bear their own costs.
THE COURT:
MALLANO, P. J.
ROTHSCHILD, J.
JOHNSON, J.
