When a party is added to an action, it bears the burden to show its interests are adverse to other parties for purposes of a 170.6 challenge

The Courts of Appeal are killing me. It has been a barren wasteland of decisions in state and federal appellate courts. Why aren't you people filing ridiculous appeals that elicit strange and wonderful new decisions about which I may write?  So, it has come to this.  I must comment on a peremptory challenge opinion.

In Orion Communications v. Superior Court (May 14, 2014), the Court of Appeal (Fourth Appellate District, Division One) granted a petition for writ of mandamus after the trial court granted a peremptory challenge pursuant to Code of Civil Procedure section 170.6. In the trial court, Plaintiff Orion obtained a judgment against DTS. After encountering difficulty enforcing the judgment, Orion filed a motion to amend the judgment to add Sameis as a judgment debtor. Orion argued Sameis was the alter ego of DTS and was liable as the successor to DTS's business. Sameis opposed the motion. Then, Sameis filed a section 170.6 peremptory challenge, asserting it was a proposed party in the action under the motion to amend and stating its belief a fair and impartial trial or hearing could not be had in that court. The trial court granted the challenge.

Granting the petition and directing that the challenge be denied, the Court of Appeal said:

Based on our review of the record, we conclude, as Orion asserts, the trial court erred by granting Sameis's section 170.6 peremptory challenge because Sameis did not present sufficient evidence showing it is not on the same side as DTS for purposes of section 170.6's one challenge per side limitation. In filing a section 170.6 peremptory challenge, Sameis, as a potential judgment debtor along with DTS, had the burden to present evidence showing it and DTS have substantially adverse interests with respect to the motion to amend the judgment in the action. (Home Ins., supra, 34 Cal.4th at p. 1037; People v. Escobedo (1973) 35 Cal.App.3d 32, 41 [no conflict shown between two defendants regarding motion to suppress evidence].) It is a question of fact whether two joined parties are on the same side for purposes of section 170.6 or whether they have substantially adverse interests. (Home Ins., supra, 34 Cal.4th at p. 1036.) Although the Order did not contain any express discussion of the issue, we conclude the trial court, by granting the peremptory challenge, implicitly found Sameis and DTS have substantially adverse interests and are not on the same side for purposes of section 170.6's one challenge per side limitation. Because that finding was based on the undisputed facts set forth in Sameis's peremptory challenge, we determine de novo, or independently, whether the trial court erred in so finding.

Slip op., at 11-12.  The Court then concluded that the declaration of counsel was insufficient because the majority of its contents were merely argument:

However, that declaration states only Sameis's belief that a fair and impartial trial or hearing cannot be held before Judge Taylor because he is prejudiced against it or its attorney or their interests. That declaration does not present any evidence on the question of whether Sameis and DTS have substantially adverse interests and therefore are not on the same side. The California Supreme Court has stated: "[A] party that seeks to exercise a subsequent peremptory challenge on the ground that, in effect, it is on a different side from another party despite appearances to the contrary, is required to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse." (Home Ins. Co., supra, 34 Cal.4th at p. 1037, italics added.)

Slip op., at 13. Elaborating on the insufficiency of the submitted declaration, the Court said:

The arguments and factual assertions made in Sameis's section 170.6 peremptory challenge appearing on the pages following Broker's declaration (i.e., those labeled as pages 2 and 3) are not evidence, but rather merely argument on the issue. (See § 2015.5 [regarding declarations]; Cal. Rules of Court, rule 3.1306(a) [regarding evidence allowed at law and motion hearings]; cf. Strauch v. Eyring, supra, 30 Cal.App.4th at p. 186; In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at pp. 1222-1223 [unsworn declarations are improper and cannot be considered].)

Slip op., at 13.

The reason why this might be of interest to complex litigation practitioners if the frequency with which those matters are multi-party matters. If a newly arrived defendant tries to spoil your party with a 170.6, make sure they have submitted real evidence of the conflict.

Peremptory challenges by different plaintiffs in two PAGA suits held valid in Pickett v. Superior Court

In my experience, there is a good deal of confusion about what is meant by the "one challenge per side" rule governing peremptory challenges to assigned trial judges under Code of Civil Procedure section 170.6.  In Pickett v. Superior Court (February 22, 2012), the Court of Appeal (Second Appellate District, Division Five) reduced at least some of that confusion, upholding the right of the plaintiff in a second, related action to exercise a peremptory challenge after the plaintiff in the earlier-filed action had already done so.

Pickett’s action that included a Private Attorney General Act (Lab. Code, § 2698 et seq.) (PAGA) claim.  It was deemed related to a prior-filed PAGA action brought by Eugina Bright, against the same defendant, 99¢ Only Stores, on similar allegations.  The two action sought somewhat different remdies.  Pickett’s action was reassigned to the all-purpose judge in the prior-filed action, but not consolidated with that first action.  Pickett timely filed a peremptory challenge to the trial judge pursuant to Code of Civil Procedure section 170.6.

The trial court struck the challenge as improper.  It determined that Pickett’s action was identical to and a continuation of the action brought by Bright, who had already used her one peremptory challenge in the matter after remand following a successful appeal.  The Court of Appeal concluded that under section 170.6 and the authorities applying it, Pickett’s action is not a continuation of Bright’s action, nor is Pickett on the same “side” as Bright in one action, and therefore Pickett’s peremptory challenge should have been accepted.

An interesting extra detail is that in the Notice of Related Cases, Pickett described her claims as "identical" to Bright's.  Despite that characterization, one that the defendant sought to turn to its advantage, the Court of Appeal determined that the right to exercise a peremptory challenge should be determined by the nature of the cases and identity of the parties, not the characterization by a party in a Notice of Related Cases.