Judge: Robert B. Broadbelt, Case: 23STCV10684, Date: 2024-08-23 Tentative Ruling

Case Number: 23STCV10684    Hearing Date: August 23, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

Order to Show Cause Why the Court Should Not Deny the Peremptory Challenge Filed by Plaintiff and Cross-Defendant McGausa LLC on July 12, 2024, Because Cross-Defendant Josh Melville Already Exercised the Peremptory Challenge on Their Side

On July 12, 2024, plaintiff and cross-defendant McGausa LLC (“McGausa”) filed a Peremptory Challenge to Judicial Officer (Code Civ. Proc., § 170.6) directed to Judge Robert B. Broadbelt in Department 53.  

On July 24, 2024, the court issued an order (1) noting that it appeared McGausa was not permitted to file this peremptory challenge because such a challenge has already been filed by a party on its “side” within the meaning of Code of Civil Procedure section 170.6, and (2) setting an Order to Show Cause why the court should not deny the peremptory challenge filed by plaintiff and cross-defendant McGausa LLC on July 12, 2024, because cross-defendant Josh Melville already exercised the peremptory challenge on their side for hearing on August 23, 2024.  (July 24, 2024 Order, p. 2:25-28.)  The court further ordered that any response to the Order to Show Cause shall be filed at least nine court days before the hearing.  (July 24, 2024 Order, p. 3:1-2.)  The clerk served the court’s July 24, 2024 order on counsel for McGausa and cross-defendant Joshua Melville, and defendant and cross-complainant Michelle Liu on July 24, 2024.  (July 24, 2024, Cert. of Mailing, p. 1.)    

The court finds that McGausa was not permitted to file the peremptory challenge dated July 12, 2024, and therefore denies the peremptory challenge.  (Code Civ. Proc., § 170.6, subd. (a)(4).)

“Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section.  In actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding.”  (Code Civ. Proc., § 170.6, subd. (a)(4).)  “The phrase ‘only one motion for each side’ contemplates that one side may consist of several parties, and a peremptory challenge by any party disqualifies the judge on behalf of all parties on that side.’”  (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1032.)  “[A] party, although joined with other parties, may be considered to be on a different side within the meaning of the statute when the joined parties have interests that are ‘substantially adverse.’”  (Id. at p. 1034.)  “[T]he party seeking to exercise a subsequent peremptory challenge has the burden of establishing that his or her interests are substantially adverse to those of the codefendant.”  (Ibid; Id. at p. 1035 [“the party seeking a subsequent disqualification of the trial judge has the burden of demonstrating that its interests are substantially adverse to those of a coparty that previously exercised a peremptory challenge—substantially adverse interests are not presumed”].)

On June 20, 2024, cross-defendant Josh Melville filed a Code of Civil Procedure section 170.6 challenge directed to Judge Timothy Patrick Dillon, which was granted on June 26, 2024.  (June 26, 2024 Minute Order, p. 1.)  This case was then reassigned to Judge Barbara A. Meiers in Department 12.  (Ibid.)

On July 8, 2024, defendant and cross-complainant Michelle Liu filed a Code of Civil Procedure section 170.6 challenge directed to Judge Barbara A. Meiers, which was granted on July 10, 2024.  (July 10, 2024 Minute Order, p. 1.)  This case was then reassigned to Judge Robert B. Broadbelt in Department 53.  (Ibid.)

Thus, the court finds that McGausa is not permitted to make another motion pursuant to Code of Civil Procedure section 170.6 because (1) as set forth above, “only one motion for each side may be made in any one action or special proceeding[,]” and (2) cross-defendant Josh Melville, who is on the same “side” as McGausa since they have both been named as cross-defendants in the Second Amended Cross-Complaint filed by defendant and cross-complainant Michelle S. Liu, has already filed such a motion.  (Code Civ. Proc., § 170.6, subd. (a)(4).)  Moreover, McGausa did not file a response to the Order to Show Cause establishing that its “interests are substantially adverse to those of” cross-defendant Josh Melville, and therefore has not met its burden to show that they are not on the same “side” within the meaning of Code of Civil Procedure section 170.6.  (The Home Ins. Co., supra, 34 Cal.4th at p. 1034.)

The court therefore denies plaintiff and cross-defendant McGausa LLC’s Peremptory Challenge to Judicial Officer (Code Civ. Proc., § 170.6), filed on July 12, 2024.

The court directs the clerk to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 23, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court