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Richard A. Frisk v. the Superior Court of Orange County

October 28, 2011


(Super. Ct. No. 30-2011-00484502)

The opinion of the court was delivered by: Aronson, J.



Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Steven L. Perk and Frederick P. Horn, Judges.

Stay order vacated.

Petition denied.

This writ proceeding involves a defendant with as brief a lifespan in the underlying action as an adult mayfly. During its short presence in the lawsuit, the defendant filed a peremptory challenge to the assigned judge under Code of Civil Procedure section 170.6.*fn1 The defendant was dismissed from the lawsuit, however, before the trial court accepted the peremptory challenge. As a result, the court deemed the peremptory challenge moot because it was not made by a "party" to the action.

Does a peremptory challenge not yet reviewed and accepted by the court survive the dismissal of the litigant filing it? Petitioner, a co-defendant, who did not file his own peremptory challenge, contends it does. According to the petitioner-co-defendant, the peremptory challenge became immutable and irrevocable at the moment it was made, instantly requiring the removal of the assigned judge.

Peremptory challenges may be unassailable as to the substantive claim of bias, but they still require immediate judicial review for timeliness and proper form. As both our Supreme Court and Legislature have made clear, peremptory challenges may be lost by direct or indirect waiver. Here, the court properly declined to accept the dismissed defendant's peremptory challenge.

We recognize that Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212 (Louisiana-Pacific) holds to the contrary, but Louisiana-Pacific has not stood the test of time. As we explain, a peremptory challenge takes effect when the court determines the section 170.6 motion has been "duly" made in both form and substance. Accordingly, we deny the petition for writ of mandate.



Petitioner Richard Frisk (Frisk) was the founder and chief executive officer of real party in interest Northwest Surgical Development Company, Inc. (Northwest), which operates cosmetic treatment centers under the trade name "Athenix Body Sculpting Institute."

In June 2011, Northwest fired Frisk, and sued him for injunctive relief, breach of employment contract, breach of the shareholders' agreement, and breach of fiduciary duty. Northwest alleged that Frisk diverted more than $650,000 from Northwest through various artifices, using the money for his personal benefit and for the purported benefit of another corporation, Avanti Skin Co. (Avanti), which Frisk also is said to have created. Northwest asserted additional causes of action against Frisk and Avanti for fraud, constructive trust, and declaratory relief.

On June 16, the case was assigned for all purposes to Judge Frederick P. Horn, and Northwest appeared ex parte to seek a temporary restraining order to prohibit Frisk from contacting Northwest's officers and employees, entering its offices, or using its computers. Judge Horn granted the temporary restraining order.

The next day, Northwest personally served Frisk with a copy of the complaint, the temporary restraining order, and various other documents. (Northwest did not then serve Avanti.) Northwest sought a preliminary injunction against Frisk, alleging he misappropriated funds for his personal use, and attempted to fabricate or destroy evidence.*fn2

Frisk vigorously opposed the preliminary injunction in proceedings before Judge Horn, who held an initial hearing, established a discovery and briefing schedule, and set the matter for a further hearing. Frisk did not file a peremptory challenge to Judge Horn.

Northwest did not serve Avanti with a copy of the complaint until early July, at which time the proceedings regarding the preliminary injunction were well under way. Northwest served Avanti by personally serving Frisk, who was its registered agent for service of process. Avanti retained separate counsel to represent it in the lawsuit.

On July 19, Avanti filed a peremptory challenge to Judge Horn. Avanti's attorney alleged that Judge Horn "is prejudiced against Defendant Avanti or the interest of Defendant Avanti so that this declarant believes that Defendant Avanti cannot have a fair or impartial hearing of any matter before the Honorable Frederick P. Horn."

On July 22, Northwest filed a request for dismissal without prejudice of the causes of action against Avanti only. The superior court clerk entered the dismissal as requested on the same day.

On July 26, Judge Steven L. Perk took the bench to determine the timeliness and technical sufficiency of Avanti's peremptory challenge. Judge Perk declined to accept the peremptory challenge because Avanti was not a party to the action. The minute order stated: "Court deems Defendant Avanti Skin Company Inc's Motion for Peremptory Disqualification Moot."

On July 28, Frisk objected to Judge Horn's failure to recuse himself following Avanti's peremptory challenge. Frisk filed a petition for writ of mandate in this court. Frisk asked this court to direct the trial court to immediately assign the case to another judicial officer. We issued a temporary stay, requested further briefing, and informed the parties that we were considering issuing a peremptory ...

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