Judge: Michelle Williams Court, Case: 24CHCV00906, Date: 2024-08-29 Tentative Ruling

Case Number: 24CHCV00906    Hearing Date: August 29, 2024    Dept: 1

24CHCV00906          KENNETH M. STERN vs VOSS, COOK & THEL LLP

Plaintiff’s Motion for Rehearing Regarding Court’s Undesignating Case as Related to Stern v. Barrister

TENTATIVE RULING:  Plaintiff’s Motion for Rehearing Regarding Court’s Undesignating Case as Related to Stern v. Barrister Relate Cases is DENIED.  Defendants to give notice.

Background of 24CHCV00906 Stern v. Voss, Cook & Thel

On March 19, 2024, Kenneth M. Stern filed this action against Voss, Cook & Thel LLP and James G. Damon asserting causes of action for: (1) federal wire fraud by B. & P.  17200; (2) California state wire fraud; and (3) declaratory relief on breach of contract. The complaint alleges Plaintiff is a tenant of Barrister Executive Suites, Inc. and it attempted to wrongfully evict Plaintiff with “fake Notices to Quit.”

On April 22, 2024, Defendants filed a Notice of Related Case involving 24CHCV00906 and 22STCV32529 Stern v. Barrister Executive Suites.

On June 5, 2024, Judge Wendy Chang issued an order finding 24CHCV00906 and 22STCV32529 were related within the meaning of California Rules of Court, rule 3.300.

On June 14, 2024, Plaintiff filed a peremptory challenge in 24CHCV00906, which Judge Chang accepted on June 20, 2024. In the June 20, 2024 order accepting the peremptory challenge, Judge Chang stated, in part, “[t]he case [24CHCV00906] is ordered transferred to Judge Michelle Williams Court in Department 1 at Stanley Mosk Courthouse for reassignment purposes only.”

On June 25, 2024, Department 1 issued an order noting the acceptance of the peremptory challenge and stating the “interest of justice is not served by reassigning case number 22STCV32529 to a new Judicial Officer. Therefore, this Court determines that cases 22STCV32529 and 24CHCV00906 should no longer be related. Case 24CHCV00906 is returned to Judge David B. Gelfound in Department F49, Chatsworth Courthouse, pursuant to its original assignment, for all purposes.”

This case is currently pending in Department F49 of the Chatsworth Courthouse with the next hearing set for September 18, 2024.

Motion for Reconsideration

Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008(a).)

Plaintiff Has Not Demonstrated a Basis for Reconsideration

Plaintiff contends this Court improperly unrelated the two cases and lacked the authority to change the order relating the two cases made by Judge Chang.

Pursuant to California Rules of Court, rule 3.300(h)(1)(A), “[w]here all the cases listed in the notice are unlimited civil cases, . . . the judge who has the earliest filed case must determine whether the cases must be ordered related and assigned to his or her department.” Here, 22STCV32529 was pending before Judge Chang in Department 36, who initially related the two cases. However, both cases cannot be assigned to Judge Chang due to the acceptance of a peremptory challenge in the later filed case.

As acknowledged by Plaintiff, one trial judge may alter orders made by another where the prior judge is unavailable. (Mot. at 3:24-25 citing In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1247 (“A trial court's discretion to reconsider another judge's prior ruling is necessarily narrow and usually only appropriate when the prior judge is unavailable.”).) Judge Chang’s acceptance of a peremptory challenge in 24CHCV00906 renders Judge Chang unavailable in that action. (See e.g. Torres v. Superior Court of San Joaquin County (2023) 94 Cal.App.5th 497, 509 (“Judge Thomasson had the inherent authority to review Judge Abdallah's ruling, because Judge Abdallah was unavailable once he granted the challenge aimed at him.”); 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 judicial administration goals of the related case rules must yield to the parties’ right to file a peremptory challenge. (See e.g. Rothstein v. Superior Court (2016) 3 Cal.App.5th 424, 431.) Moreover, the peremptory challenge statutes should not be used as a mechanism to effectively extend the time requirements for a peremptory challenge in the earlier filed case. (Ibid. n.3. See also The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032 (“section 170.6 is designed to prevent abuse by parties that merely seek to . . . obtain a more favorable judicial forum.”).)

Department 1 had the authority to issue the order unrelating the two cases and Plaintiff’s motion is DENIED. The cases shall remain as assigned by this Court on June 25, 2024.