Judge: David J. Cowan, Case: 21STCP03986, Date: 2022-12-08 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion.  If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing.  If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion.  Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

 

Case Number: 21STCP03986    Hearing Date: December 8, 2022    Dept: 1

Tentative Ruling

Judge David J. Cowan

Department 1

Hearing Date:                  Thursday, December 8, 2022

Case Name:                     Committee to Remove Baba Sale Directors v. Baba Sale Congregation, et al.

Case No.:                         21STCP03986

Motion:                           Vacate Order on Peremptory Challenge

Moving Party:                  Petitioner Committee to Remove Baba Sale Directors

Responding Party:           Respondents Congregation, Wannon, Benhaim, and Atias

Notice:                             OK     

Ruling:                             The Motion to Vacate Order on Peremptory Challenge is DENIED.

The Committee to give notice.

BACKGROUND

On December 6, 2021, the Committee to Remove Baba Sale Directors filed a Petition to Remove Directors of Baba Sale Congregation, seeking relief against Baba Sale Congregation, Eric Wannon, Simon Benhaim, Robert Krief, Elie Atias, and Does 1-50. The Committee seeks to remove Wannon, Krief, Benhaim, and Atias as Directors of the Congregation.

On January 19, 2022, Congregation filed a Notice of Related Case indicating cases 21STCP03986 and 20STCV28457 (Fedida v. Azran, et al.) are related.

On March 16, 2022, the clerk entered defaults of Defendants Wannon, Atias, Benhaim, and the Congregation.

On March 17, 2022, Wannon filed a peremptory challenge under CCP sec. 170.6 against Judge Michael L. Stern.

On March 18, 2022, Judge Stern accepted the challenge, finding it was timely filed, and the case was reassigned to Judge Teresa A. Beaudet.

On March 22, 2022, Petitioner filed a Motion to Vacate Peremptory Challenge.

On April 1, 2022, the Committee filed an Amended Petition to Remove Directors of Baba Sale Congregation.

On June 13, 2022, Wannon, Benhaim, Atias, and the Congregation jointly filed an Answer to the First Amended Petition.

On November 10, 2022, Judge Beaudet reset the Motion to Vacate in Department 1 under Los Angeles Local Rule 2.23.

On November 21, 2022, Wannon, Congregation, Benhaim, and Atias filed an Opposition to the Motion to Vacate.

DISCUSSION

Consideration by Department 1

At the outset, Department 1 must address the application to vacate Judge Stern’s order accepting Wannon’s peremptory challenge due to Judge Stern’s unavailability. "Where the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion." (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.) Judge Stern is unavailable due to his acceptance of Wannon’s challenge; hence, another judge must address this application.

This case was filed in the Central District of Los Angeles Superior Court. Thus, the Supervising Judge of the Civil Division (sitting in Department 1) hears this application. (Local Rule 2.23 (“If a judge who made an order or judgment is unavailable to . . . vacate . . . the order or judgment, then a party must apply to the following . . .  if the case is filed in the Central District, the Supervising Judge of the appropriate principal division of the court.”))

Peremptory Challenge Timing

Under CCP sec. 170.6(a)(2), a party may file a peremptory challenge “directed to the trial of a civil cause that has been assigned to a judge for all purposes . . . within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance.” Thus, to “determine whether a peremptory challenge has been timely filed, the trial court must decide whether the general rule [noted above] or any of the three exceptions applies.” (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 524.) The three exceptions are the master calendar exception, all purpose assignment exception, and "10-day/5-day" exception for trial assignments. (Id.) “‘As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.’” (Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1493.)

In determining the timeliness of challenges under Section 170.6, the “word ‘appearance’ . . . consistently has been interpreted to mean ‘general appearance.’ [Cite.] It has been construed in this fashion for the simple reason that it is only upon the making of a general appearance that a defendant submits to the jurisdiction of the court.” (La Seigneurie US Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504.) To determine whether [a party] has made a general appearance, we do not look to whether it characterizes its appearances as ‘general’ or ‘special.’ Instead, we must look to the ‘character of the relief asked.’ [Cite.] An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections.” (366-386 Geary St., LP v. Superior Court (1990) 219 Cal.App.3d 1186, 1194; accord Judson v. Superior Court (1942) 21 Cal.2d 11, 13.)

On March 8, 2022, Defendants’ counsel appeared before Judge Stern in connection with a Case Management Conference in this case and represented that Defendants “would likely file a demurrer.” (Thomas Decl., para. 5.) On March 15, 2022, Defendants' counsel emailed Plaintiff's counsel a copy of Wannon's 170.6 challenge to Judge Stern. (Thomas Decl., Exh. 3.) On March 16, 2022, Plaintiff requested (and obtained) entry of default against each Defendant. On March 17, 2022, Wannon filed the 170.6 challenge to Judge Stern. On March 18, 2022, Judge Stern accepted the challenge notwithstanding entry of default against Wannon, finding the challenge was timely and in proper form.

Default

Plaintiff argues Wannon’s challenge is ineffective because his default had been entered before he filed the challenge. The Court rejects this argument. Initially, defense counsel offered evidence that Plaintiff’s counsel was aware of Wannon’s intent to file a peremptory challenge before Plaintiff’s counsel requested entry of default. (Thomas Decl., Exh. 3.) Defense counsel claims that Plaintiff’s counsel pursued entry of default without notifying defense counsel in advance; Plaintiff’s counsel does not deny this assertion or offer any evidence of an advance notification.

But an attorney has a legal and “ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default.” (LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) “[T]o the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue [as well], that distinction was erased by [CCP] section 583.130,” which creates a statutory obligation to “cooperate in bringing the action to trial or other disposition.” (Id. at 137.) “Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts.” (Id.) It would be extremely prejudicial to deny Wannon’s right to a peremptory challenge based on Plaintiff’s rushed request for entry of default, particularly where that request was only made after Plaintiff’s counsel was informed that Wannon intended to file a challenge to Judge Stern.

Generally, “entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) But here, Wannon may not have even been aware that his default had been entered the day before his challenge, particularly as the challenge had been prepared and submitted to opposing counsel before entry of default. Moreover, Wannon’s default was automatically vacated when Plaintiff filed an Amended Petition just two weeks later on April 1, 2022. Though Wannon was in default when the challenge was filed, the circumstances surrounding entry of default were suspect and the default was promptly vacated after the challenge was accepted. Under the circumstances, it would be manifestly unfair to deny Wannon’s right to a peremptory challenge. (Bravo, supra, 149 Cal.App.4th at 1493 (“‘section 170.6 is to be liberally construed . . . and a challenge should be denied only if the statute absolutely forbids it.’”))

Timing

Next, Plaintiff argues Wannon’s challenge was untimely filed more than 15 days after he made a general appearance by filing a Notice of Related Case on January 19, 2022. By making a general appearance, “a defendant submits to the jurisdiction of the court” and the deadline to file a peremptory challenge begins to run. Hence, the Court cannot treat lightly the issue of whether a party has made a general appearance.

Though the Congregation and Wannon are represented by the same law firm, that is not sufficient to establish a general appearance by Wannon himself. Wannon did not file the Notice of Related Case—the Notice was filed by the Congregation only, as reflected by the caption of the Notice. (Thomas Decl., para. 3.) A filing by one party cannot necessarily be imputed to other parties. Indeed, it is not clear that first appearance fees were paid (or required to be paid) for any party other than the Congregation in connection with the Notice of Related Case.

The Court also recognizes that the Notice of Related Case contains a supporting declaration submitted by the "[a]ttorneys for Baba Sale Congregation, Eric Wannon, Simon Benhaim, Robert Krief, Elie Atias, Miriam Wizman, Igal N. Azran, Raphael Gabay and Mark Bohbot." (Thomas Decl., p. 3.) However, the submission of a supporting declaration, without more, is not a general appearance because a supporting affidavit does not “raise[] an issue for resolution or seek[] relief available only if the court has jurisdiction over the defendant,” as required for a general appearance. (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 (defendant appears by “ask[ing] for any relief which can only be granted [if] the court has jurisdiction of his person…”))

Thus, the Court rejects Plaintiff’s argument that the challenge was untimely filed more than 15 days after a general appearance on January 19, 2022. Wannon did not appear at that time; rather, Wannon appeared, at the earliest, on March 8, 2022 when his counsel appeared and represented that he would file a demurrer. (Thomas Decl., para. 5.) The challenge was timely filed within 15 days of that appearance and Judge Stern accepted the challenge as timely and in proper form notwithstanding the rushed entry of default the day before. The Court is persuaded that Judge Stern properly accepted that challenge, and thus DENIES the Motion to Vacate.

CONCLUSION

The Motion to Vacate is DENIED.

The Committee to give notice.