Judge: Mark H. Epstein, Case: 24SMCV02455, Date: 2024-12-06 Tentative Ruling

Case Number: 24SMCV02455    Hearing Date: December 6, 2024    Dept: I

The court will discuss the ex parte matter with the parties.  As the court understands it, here is what happened.  (This is a thumbnail sketch only.)

Plaintiff filed this action on May 22, 2024.  It involves a loan in which defendant is the borrower and Kihagi is the guarantor.  On October 2, 2024, plaintiff sought a temporary restraining order and preliminary injunction.  On November 22, 2024, Judge Mandel, to whom the case had been assigned, held the hearing.  Judge Mandel granted the motion to issue a preliminary injunction and appoint a receiver.  That is reflected in a short Minute Order of that date.  Judge Mandel directed plaintiff, the prevailing party on the motion, to prepare the appropriate order.  Judge Mandel indicated that she intended to sign the order before Thanksgiving.  While plaintiff was preparing the order (and likely after it had been circulated to the defense), Kihagi, who had apparently not yet appeared in the action, filed a 170.6 challenge.  That was filed at 11:30 am on November 26, 2024.  However, it is not clear whether Judge Mandel was aware of it at that time.  The next day, Judge Mandel signed the proposed order.  The Monday following the Thanksgiving Holiday, it appears that Judge Mandel became aware of the 170.6 challenge and granted it.  The matter was then reassigned to this court.

The court will discuss with the parties the following: (1) How was the 170.6 challenge filed and served on the court, and, more specifically, was the challenge delivered to Judge Mandel’s courtroom? (2) what is the current status of the PI/receiver, and, more specifically, defendant suggests that the engine that drove the motion was insurance-related and that has been resolved.  What is plaintiff’s view?  (3) Assuming that the court must vacate the November 27, 2024 order, what is the effect of the court’s November 22, 2024, Minute Order, which was entered before the 170.6 challenge was filed?

Related to that, the court would be amenable to further briefing, but the court would want at a minimum some kind of a status quo order pending that later hearing.