Judge: Christopher K. Lui, Case: BC724445, Date: 2023-09-14 Tentative Ruling

Case Number: BC724445    Hearing Date: September 14, 2023    Dept: 76

RULING RE: EX PARTE APPLICATION FOR RELIEF FROM DENIAL OF PEREMPTORY CHALLENGE

The Court finds this matter appropriate for decision in chambers without oral argument.

On August 30, 2023, the Court issued an order denying a Code of Civil Procedure section 170.6 peremptory challenge filed by Defendants Smart & Final Stores, LLC and Commerce Distribution Company, LLC.  The denial was based on the apparent untimeliness of the filing of the challenge.

In support of the instant ex parte application, Defendants' counsel provides a declaration indicating that the Clerk of the Court mailed the August 3, 2023 notice of case reassignment and August 3, 2023 minute order re: remittitur and peremptory challenge to an outdated and incorrect address for Defendants.  Notice sent to an incorrect address obviously is not valid notice.  Accordingly, the time for Defendants to file a 170.6 notice should have been triggered at the earliest by Plaintiff's August 8, 2023 service of the notice of reassignment.  Thus, Defendants' August 28, 2023 peremptory challenge was timely filed. 

The Court therefore reconsiders its August 20, 2023 order and finds that Defendants' section 170.6 peremptory challenge was timely filed, in proper format, and is accepted.  Upon reassignment by the Supervising Judge, the Clerk of the Court shall provide notice to the parties of the reassignment.

Unless waived, moving parties to give notice.