The § 170.6 Clock Can Start Before a Formal Transfer

Sunrise Financial, LLC v. Superior Court, No. D073772 (D4d1 Feb. 7, 2019).

Code of Civil Procedure § 170.6(a)(2) requires a peremptory challenge to a judge assigned to a case for all purposes to be filed within fifteen days of a party’s appearance in the action. The question here is: does filing a brief in opposition to a § 403 motion to transfer and consolidate non-complex cases pending in different count as an appearance to start the running of the fifteen day clock. The Court here finds it does.

This is a hot mess of litigation arising from a Consultant to a Real Estate Investor having allegedly defrauded the Investor out of security interests it held in properties in three different counties. After the Consultant allegedly swindled away the rights, it foreclosed on the properties and sold them to others. The key Defendant here is a company that bought a property in San Bernardino County. It was principally a defendant in a case brought there. But there’s also a case in San Diego and another in LA. 

After Investor’s effort to directly bring Defendant into the San Diego case failed, Investor sought to coordinate all the cases in San Diego Superior under the complex case coordination rules. See §§ 404, 404.1, Rule of Court 3.520. Defendant opposed. The assigned coordination judge—who was also the independent calendar merits judge in the SD case—denied the motion because the cases weren’t complex. Investor then moved to coordinate and consolidate the case under the non-complex coordination rule. See § 403. Defendant again filed an opposition. This time, the trial court granted the motion and ordered the San Bernardino and LA cases transferred and consolidated into the San Diego case.

Six days after consolidation was ordered, Defendant filed a strike under § 170.6 to bounce the S.D. judge. But it was more than fifteen days after it opposed the § 403 motion, and even longer since it opposed the denied § 404 motion. So the validity of the strike turns on whether either of those oppositions was an “appearance,” which started the fifteen-day clock.

Because Rule of Court 3.516 has special rules addressed to § 170.6 challenges in the complex coordination process, the Court assumes that the § 404 opposition doesn’t count. But there is no similar special rule for § 403 cases. So the court finds that when Defendant submitted to the jurisdictional authority of the San Diego judge to oppose the § 403 transfer, it made a general  appearance in that case and started the fifteen day clock running. The fact that Defendant’s opposition papers proclaimed that it was only “specially appearing” didn’t change that fact—labeling is not dispositive. And because Defendant appeared in the San Diego case, the fact that the San Bernardino case hadn’t yet been transferred at the time of the appearance didn’t matter either.

Writ denied.