(Santa Clara Super. Ct. No. CV074655), Honorable Socrates Peter Manoukian.
The opinion of the court was delivered by: Mihara, Acting P. J.
CERTIFIED FOR PUBLICATION
Petitioners Adam and Megan Swift filed a peremptory challenge pursuant to Code of Civil Procedure section 170.6*fn1 seeking to disqualify Judge Socrates Peter Manoukian. Judge Manoukian struck the peremptory challenge on the ground that he had previously "made a determination of contested fact issues relating to the merits." (See § 170.6, subd. (a)(2).) Because Judge Manoukian‟s only factual determinations were made in connection with discovery motions and did not relate to the merits of the case, we conclude that he erred in striking the challenge. We therefore grant the petition for a writ of mandamus directing respondent Santa Clara County Superior Court to vacate the March 21, 2008 order striking the peremptory challenge.
Petitioners are plaintiffs and cross-defendants (hereafter plaintiffs) in a civil action involving a landlord-tenant dispute. They allege fraud, breach of contract, and statutory violations, and they seek the return of a security deposit pursuant to the terms of a residential lease. Real parties in interest Kenton and Moira Mitchell are defendants and cross-complainants (hereafter defendants) in the action and allege that plaintiffs damaged their property.
In 2007, defendant Kenton Mitchell filed a motion to compel further answers to his requests for admissions and form interrogatories. Judge Manoukian found that, after the filing of the motion to compel, plaintiffs had filed further responses which satisfied defendant Kenton Mitchell as to the requests for admissions and all but one of the form interrogatories. As to these, Judge Manoukian denied the motion to compel as moot. As to Form Interrogatory 9.1, Judge Manoukian found that the motion was timely and the interrogatory was unambiguous. He granted the motion to compel as to that interrogatory and ordered plaintiffs to respond within 20 days. Judge Manoukian concluded that defendant Kenton Mitchell was entitled to $2,240 in sanctions against plaintiffs and their counsel because his motion had been needed to obtain further responses from plaintiffs, even if most of those responses were provided without a court order. Judge Manoukian denied plaintiffs‟ request for sanctions on the same basis. Defendant Kenton Mitchell filed a second discovery motion while the first was pending, seeking to compel further responses to form interrogatories. Judge Manoukian heard argument on the second motion on March 14, 2008, but has not yet issued an order.
Meanwhile, on February 14, 2008, plaintiffs filed a motion for a protective order relating to defendant Kenton Mitchell‟s special interrogatories. Pursuant to plaintiffs‟ accompanying ex parte application, Judge Manoukian stayed discovery responses pending resolution of the motion for a protective order and set the motion for hearing on March 28, 2008. On February 25, 2008, plaintiffs filed a separate motion for a protective order relating to defendant Moira Mitchell‟s special interrogatories. This motion also was set for hearing on March 28.
On March 19, 2008, nine days prior to the scheduled hearing on the motions for protective orders, plaintiffs filed a peremptory challenge seeking to disqualify Judge Manoukian pursuant to section 170.6, subdivision (a)(2). Two days later, Judge Manoukian issued an order striking the peremptory challenge on the ground that he had "presided at or acted in connection with a pretrial conference or other hearing and made a determination of contested fact issues relating to the merits."
On March 26, 2008, plaintiffs filed a timely petition for writ of mandamus in this court. Plaintiffs requested, and this court issued, a temporary stay of the lower court proceedings. After requesting and receiving preliminary opposition, this court issued an order to show cause. Defendants thereafter filed a return, and plaintiffs filed a reply.
"The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court‟s order determining the question of disqualification." (§ 170.3, subd. (d); Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315 (Zilog).) The Courts of Appeal have reached varying conclusions regarding the appropriate standard of review of the denial of a peremptory challenge. In Zilog, for instance, the court reviewed the trial court‟s order for abuse of discretion and noted that "[a] trial court abuses its discretion when it erroneously denies as untimely a motion to disqualify a judge pursuant to section 170.6." (Zilog, at p. 1315; see also Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098 [applying abuse of discretion standard].) Other courts have observed that, "[i]n deciding a section 170.6 motion, the trial court has no discretion" so it is "appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as [a question] of law" using the "nondeferential de novo standard." (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363; see also Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 493 (Jane Doe) [applying independent standard of review].) Because the court‟s order in this matter turns on the application of the statute to undisputed facts, we find the de novo standard of review appropriate. (See Jane Doe, at p. 493.) Under either standard, however, we find error.
"Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the timing of the motion are imposed by this statute, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6, however, must be granted." (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1248-1249.) In other words, "[b]y enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a ...