California Court of Appeals, Fourth District, First Division
PETITION for writ of mandamus challenging order of the Superior Court of San Diego County No. 37-2009-00087082-CU-BT-CTL, Timothy B. Taylor, Judge.
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Chapin Fitzgerald, Kenneth M. Fitzgerald and Jennifer Arnold for Petitioner Orion Communications, Inc.
Moscone Emblidge Sater & Otis, G. Scott Emblidge and Matthew K. Yan for Petitioners City of San Diego and TEGSCO, LLC.
No appearance for Respondent.
Broker & Associates and Jeffrey W. Broker for Real Party in Interest.
Orion Communications, Inc., TEGSCO, LLC, doing business as San Francisco AutoReturn, and the City of San Diego (together Orion) filed a petition for writ of mandamus challenging an order granting a Code of Civil Procedure section 170.6 peremptory challenge filed by Sameis Holdings, LLC (Sameis) after Orion filed a motion to add Sameis as a judgment debtor along with the original judgment debtor, Dispatch & Tracking Solutions, LLC (DTS). Orion contends the trial court erred by granting the section 170.6 peremptory challenge because Sameis is not a party to the action within the meaning of section 170.6. Orion alternatively contends that because DTS previously filed a section 170.6 peremptory challenge and there is insufficient evidence to support a finding that the interests of DTS and Sameis are substantially adverse, the one challenge per side rule applies to bar a subsequent section 170.6 peremptory challenge by Sameis. Because we agree with Orion's second contention, we grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, Authorized City Towing and other plaintiffs (together ACT) filed a first amended complaint against the City of San Diego (City), TEGSCO, LLC, doing business as San Francisco AutoRetum (AutoRetum), DTS and
other defendants, apparently arising out of City's 2008 decision to terminate its contract with ACT for a computer-based system for managing the towing of vehicles, and instead award the contract to AutoReturn.
In 2011, DTS filed a first amended cross-complaint against Orion, and other cross-defendants alleging causes of action for misappropriation of trade secrets. In January 2012, DTS filed a section 170.6 peremptory challenge to San Diego County Superior Court Judge Gonzalo Curiel. The challenge was granted and the case was reassigned to San Diego County Superior Court Judge Timothy Taylor. Thereafter, the trial court (Judge Taylor) granted Orion's motions for summary judgment on DTS's cross-complaint. The court also awarded Orion Communications, Inc., attorney fees of $120, 000 and City and AutoReturn attorney fees of $450, 000 pursuant to Civil Code section 3426.4. On February 28, 2013, the trial court entered an amended judgment reflecting its summary judgment and awards of attorney fees against DTS.
Apparently after unsuccessful efforts to enforce the judgment against DTS, Orion filed a motion to amend the judgment to add Sameis as a judgment debtor. Orion argued Sameis was the alter ego of DTS and was liable as the successor to DTS's business. Sameis filed its opposition to the motion.
On or about November 1, 2013, Sameis filed a section 170.6 peremptory challenge to Judge Taylor, asserting it was a proposed party in the action under the motion to amend and stating its belief a fair and impartial trial or hearing could not be had before him. Orion filed its opposition to the peremptory challenge, asserting Sameis was not a party to the action and therefore could not make a challenge under section 170.6. Orion alternatively asserted that even were Sameis a party to the action, Sameis was on the same side as DTS and, because DTS had already exercised its side's only section 170.6 peremptory challenge, there was no remaining peremptory challenge available.
On November 6, 2013, the trial court issued the instant order (Order) granting Sameis's section 170.6 peremptory challenge. The court stated: "There is much to recommend the position taken by Orion in this matter.... [S]ection 170.6 challenges appear to be limited to parties to the action." However, citing our failure to immediately deny a writ petition in another case involving a similar peremptory challenge (Geraci v. Superior Court (Nov. 7, 2013, D064812), petn. den.), the trial court apparently concluded Sameis may be considered a party under section 170.6 and granted the peremptory challenge. In so doing, the court did not expressly address Orion's alternative assertion that Sameis was on the same side as DTS and therefore there was no peremptory challenge left for its side to make.
Orion filed the instant petition for writ of mandamus, challenging the Order. It also filed a motion requesting that we take judicial notice of (1) our summary denial of the Geraci writ petition in
Geraci v. Superior Court, supra, D064812 on November 7, 2013, and (2) papers filed in a pending action between Sameis and Orion in the Texas courts. Sameis filed a preliminary opposition to the petition. We issued an order to show cause why the relief requested in the petition should not be granted. ...