Still One Strike Per Side

Prescription Opioid Cases, No. B302241 (D2d3 Dec. 1, 2020)

This case deals with the exercise of peremptory challenges under Code of Civil Procedure § 170.6 in Judicial Council Coordination Proceedings under § 404, et seq.

I don’t want to get into the full ins and outs of JCCP procedure here, but the key thing to understand is that there are two important judicial actors in a JCCP case—the “coordination motion judge” and the “coordination trial judge.” The motion judge is the judge who decides, at the outset, whether cases should be coordinated and, on an ongoing basis, whether new cases should get added to the coordination proceedings. The trial judge, on the other hand, is the judge who runs the cases once they are coordinated. 

Here, the original motion judge was in OC Superior. Plaintiffs struck him under § 170.6, resulting in the appointment of a different OC Superior judge as the motion judge. Then, after the AG filed a new case in LA Superior, the motion judge ordered that case coordinated and sent it to an LA Superior judge who was designated as the coordination trial judge. Plaintiffs tried to strike him too. But because § 170.6 only permits one strike per “side,” the trial judge denied the strike and kept the case. Plaintiffs took a writ.

Section 170.6 permits only one strike per “side.” The Legislature, in § 404.7, specifically authorized the Judicial Council to write Rules of Court to deal with § 170.6 strikes in JCCP cases. Rule of Court 3.516 thus further explains that in a JCCP, a “side” is, writ large, plaintiffs or defendants as a group. This rule generally prevents added on parties from exercising new strikes if an existing party on their side already exercised one. 

Plaintiffs argue, however, that a “coordination proceeding,” as defined by the Rules of Court, is somehow a separate action or that § 404.7 abrogates the limit to one strike per side. But the nothing in the Rules of Court is contrary to the one strike per side rule. And indeed, Rule 3.516 limited the ability of new parties to strike judges in JCCP proceedings. It would not make any sense to read the Rules of Court as abrogating the general one strike per side rule in their silence.

Writ denied.