Judge H. Jay Ford, III, Case Number: 24STCP01354, Date: 2024-10-11 Tentative Ruling

Having considered Respondent Holmby Westwood Property Owners Association’s (“the Association”) Motion for Reconsideration of the July 9, 2024 order granting Plaintiff Focus Line, LLC’s (“Focus Line”) peremptory challenge to Hon. Edward B. Morton, Jr. under Code of Civil Procedure §170.6, the opposition thereto, and the arguments of counsel at the hearing, the motion for reconsideration is GRANTED.

Having reconsidered Focus Line’s 170.6 peremptory challenge, the Court rescinds the July 9, 2024 order granting the 170.6 challenge finding that challenge is untimely. The 170.6 challenge filed on July 9, 2025 by Focus Line, therefore, is DENIED. The Court orders this case transferred back to Judge Edward B. Morton Jr., Department 205 of the Beverly Hills courthouse for all purposes.

Preliminarily, the grant of a peremptory challenge under CCP 170.6 may be reconsidered. A reconsideration of the grant, however, must be decided by a judge other than the judge who accepted the challenge. Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 426 (“Where a judge has been disqualified, the newly-assigned judge may review the ruling of the disqualified judge because the disqualified judge, having no authority to rule, is “unavailable.”).

The Association seeks reconsideration on the grounds that Focus Line’s 170.6 challenge was untimely for two reasons. First, the Association argues the 170.6 challenge was not filed within 15 days of the Focus Line having been given notice of the assignment of this case to Judge Morton. The Court disagrees.

On June 11, 2024, the Association filed a notice of related case under CRC rule 3.300 in this case and in the prior action, Holmby Westwood Property Owners Association v. Focus Line, LLC, Case Number 20SMCV01575 (the “Prior Action”), seeking to relate this case to the Prior Action under CRC Rule 3.300. On June 14, 2024, Judge Morton ordered this case related to the Prior Action and this case was then assigned for all purposes to Judge Morton. On June 15, 2024, the Clerk mailed the notice of the assignment of this case to to counsel for Focus Line. On July 2, 2024, Focus Line filed its 170.6 challenge to Judge Morton. Because the notice of assignment was sent by U.S. mail, the time to file a 170.6 challenges was extended by 5 days. (California Business Council v. Superior Court (1997) 52 Cal.App.4th 1100 (concluding the amendments made to CCP §1013 require the 5 day extension for service by mail applies the to notice required for a 170.6 challenge).) If counted from the time the notice of assignment of this case to Judge Morton was mailed to counsel, the last day to file that challenge was July 5, 2024. (15 days from the of notice of the assignment, plus five days for the mailing of that notice, excluding the July 4, 2024 court holiday under CCP §1005) Therefore, the 170.6 challenge was not untimely based on the date Focus Line was given notice of the assignment of the case to Judge Morton.

More importantly, the Association argues the 170.6 challenge in this case is untimely because this case is a continuation of the Prior Action. It is well settled that “[a] peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action.” Garcia. v. Superior Court (2023) 92 Cal.App.5th 47, 52 quoting Birts v. Superior Court (2018) 22 Cal.App.5th 53, 58. This “continuation “ rule was first explained in Jacobs v. Superior Court (1959) 53 Cal.2d 187. In Jacobs, the court stated that “since the motion must be made before the trial commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.” (Id. at 190).

The Court recognizes that “[a]s 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.” (Pickett v. Superior Court (2012) 203 Cal.App.4th 887, 892.) “To conclude that one action is a continuation of another requires more than a simple determination that the two actions involve similar parties litigating similar claims. (Citation) Rather, there must be a subsequent proceeding, the gravamen of which is rooted in, or supplementary to, the initial proceeding. (Citation.) That is, the second proceeding must involve “the same parties at a later stage of their litigation with each other, or ... arise out of conduct in or orders made during the earlier proceeding.” (Id at 894.) See, NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 251.

In the Prior Action, Focus Lines’ First Amended Cross-Complaint alleged “Civil Code section 4275 applies here to allow the homeowners subject to the CC&Rs to lower the percentage of votes needed to approve an amendment to terminate the CC&Rs.” (FAC filed 6/02/2021, ¶46.) Further Focus Line sought a declaration, that “Civil Code section 4275 applies to allow the homeowners subject to the CC&Rs to lower the percentage of votes needed to approve an amendment to terminate the CC&Rs.” (FAC ¶47.) On this issue, Judge Moreton, in his Statement of Decision in the Prior Action ruled “Focus Line is not entitled to any relief under the First Amended Cross-Complaint. (SOD filed 7/21/2023, p. 6 (all caps in original.). Further, Judge Morton concluded “Civil Code Section 4275 does not apply.” (SOD p. 11.)

In this action Focus Line seeks the same relief. (“Petition To Lower Required Vote to Terminate Restrictions”, filed 4/26/2024, ¶ 1 (“This is an action brought by Petitioner on behalf of the Association to reduce the required vote to terminate certain restrictions that are not being uniformly enforced and which do not even apply to all of the lots in the neighborhood from 75 percent to 50 percent.”) Indeed, in its opposition, Focus Line acknowledges “[i]n the Prior Action Petitioner did assert that Civil Code § 4275 should apply to reduce the number of required signatures. The Court, however, did not reach the merits of the claim as it found the code section inapplicable since the case did not involve a common interest development. [Statement of Decision, p. 11]” (Opposition filed 9/12/2024, p. 3 fn. 2.) Regardless of the extent to which Focus Line believes Judge Morton “reached the merits” of that claim, Judge Morton certainly adjudicated the issue of whether Civil Code §4275 applies and by finding that section inapplicable denied Focus Lines request for a declaration the homeowners sought allowing the homeowners to lower the percentage of votes needed to approve an amendment to the CC&Rs.

Here, it is clear the two cases involve the same parties, involve the same issue (lowering the vote for termination of restrictions) and effectively seeks a modification of the Judgment entered by Judge Moreton in his Statement of Decision. While there were additional issues adjudicated in the Prior Action, the limited issue raised in this action was the subject of the Cross-Complaint in the Prior Action and Judgment was rendered thereon. Without a doubt, the gravamen of this action “is rooted in, or supplementary to, the [Prior Action],” involves “the same parties at a later stage of their litigation with each other” and “arise[s] out of conduct in or orders made during the earlier proceeding.” ((Pickett v. Superior Court, supra, 203 Cal.App.4th at 894.)