In re Prescription Opioid Case, B302241

CourtCalifornia Court of Appeals
Writing for the CourtEGERTON, J.
Citation272 Cal.Rptr.3d 99,57 Cal.App.5th 1039
Parties PRESCRIPTION OPIOID CASES.
Decision Date25 November 2020
Docket NumberB302241

57 Cal.App.5th 1039
272 Cal.Rptr.3d 99

PRESCRIPTION OPIOID CASES.

B302241

Court of Appeal, Second District, Division 3, California.

Filed November 25, 2020
As Modified December 1, 2020


Robins Kaplan, Roman M. Silberfeld, Bernice Conn, Michael A. Geibelson, Glenn A. Danas and Lucas A. Messenger, Los Angeles, for Petitioners.

No appearance for Respondent.

O'Melveny & Myers, Michael G. Yoder, Amy J. Laurendeau, Newport Beach, Charles C. Lifland, Sabrina H. Strong and Jonathan P. Schneller, Los Angeles, for Real Parties in Interest Johnson & Johnson and Janssen Pharmaceuticals, Inc.

Morgan, Lewis & Bockius, Collie F. James IV, Costa Mesa, and Steven A. Reed for Real Parties in Interest Teva Pharmaceutical Industries Limited, Teva Pharmaceuticals USA, Inc., Cephalon, Inc., Actavis LLC, Actavis Pharma, Inc. and Watson Laboratories, Inc.

Arnold & Porter Kaye Scholer, Sean Morris, John Lombardo, Los Angeles, and Tiffany Ikeda for Real Parties in Interest Endo Health Solutions Inc. and Endo Pharmaceuticals Inc.

Covington & Burling, Nathan E. Shafroth, San Francisco, and Raymond G. Lu for Real Party in Interest McKesson Corporation.

Reed Smith, Steven J. Boranian, Adam D. Brownrout, San Francisco, Eric J. Buhr, Alexis A. Rochlin and Sarah B. Johansen, Los Angeles, for Real Party in Interest AmerisourceBergen Corporation.

Baker & Hostetler and Teresa C. Chow, Los Angeles, for Real Party in Interest Cardinal Health, Inc.

Kirkland & Ellis and Zachary Byer, Los Angeles, for Real Parties in Interest Allergan PLC, Allergan Finance, LLC, Allergan, Inc. and Allergan USA, Inc.

Ropes & Gray and Rocky C. Tsai, San Francisco, for Real Party in Interest Mallinckrodt LLC.

EGERTON, J.

272 Cal.Rptr.3d 101
57 Cal.App.5th 1044

In this case we hold Code of Civil Procedure section 170.6 authorizes only one judicial peremptory challenge for each side in a Judicial Council Coordination Proceeding under rule 3.516 of the California Rules of Court.1 As we explain, rule 3.516 modifies the normal procedures governing section 170.6 peremptory challenges in two ways to conform the procedures to the unique characteristics of a coordination proceeding. The rule (1) requires the party making a peremptory challenge to submit it in writing to the assigned judge within 20 days after service of the order assigning the judge to the coordination proceeding; and (2) specifies that all plaintiffs or similar parties constitute "a side" and all defendants or similar parties constitute "a side" for purposes of "applying Code of Civil Procedure section 170.6." ( Rule 3.516.) Rule 3.516 does not displace section 170.6 ’s fundamental directive that there shall be "only one motion for each side ... in any one

57 Cal.App.5th 1045

action or special proceeding." ( § 170.6, subd. (a)(4).) The trial court correctly interpreted and applied the rule. We deny the writ.

FACTS AND PROCEDURAL BACKGROUND

Petitioners and other similarly situated California governmental entities filed actions in several counties throughout the state against Real Parties alleging claims for false advertising, nuisance, fraud, negligent failure to warn, and civil conspiracy arising out of Real Parties’ manufacture and distribution of opioid products.2

On May 9, 2019, the Presiding Judge of the Orange County Superior Court, Judge Kirk Nakamura, under the authorization of the Chairperson of the Judicial Council, assigned Judge Peter Wilson to be the coordination motion judge. On May 29, 2019, Petitioners filed a section 170.6 peremptory challenge to disqualify Judge Wilson. On May 31, 2019, Judge Nakamura granted the peremptory challenge and reassigned the coordination motion to Orange County Superior Court Judge William Claster.

On June 3, 2019, the California Attorney General filed a lawsuit against one of the Real Parties in Los Angeles County Superior Court. The Attorney General requested Judge Claster consider the action for coordination.

On September 6, 2019, Judge Claster granted the coordination petition as to Petitioners’ actions. Judge Claster also found Los Angeles County, where two of the

272 Cal.Rptr.3d 102

three coordinated actions were pending, was the appropriate venue for the coordination proceeding. On September 30, 2019, Los Angeles County Superior Court Judge William Highberger was assigned as the coordination trial judge.

On October 11, 2019, Petitioners filed a second section 170.6 peremptory challenge to disqualify Judge Highberger. Real Parties filed an objection, arguing section 170.6 and rule 3.516 allow only one peremptory challenge per side in a coordination proceeding and Petitioners had already used their challenge to strike Judge Wilson.

On October 31, 2019, Judge Highberger denied Petitioners’ motion to disqualify. This writ proceeding followed.

57 Cal.App.5th 1046

DISCUSSION

1. Standard of Review

An order granting or denying a motion to disqualify is normally reviewed for an abuse of discretion. (See People v. Superior Court (Maloy ) (2001) 91 Cal.App.4th 391, 395, 109 Cal.Rptr.2d 897 ; Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315, 104 Cal.Rptr.2d 173.) However, it is settled that a trial court lacks discretion to deny a section 170.6 motion that complies with the applicable statutory procedures. ( Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987, 250 Cal.Rptr.3d 535 ; Maas v. Superior Court (2016) 1 Cal.5th 962, 972, 209 Cal.Rptr.3d 571, 383 P.3d 637 ; Pickett v. Superior Court (2012) 203 Cal.App.4th 887, 892, 138 Cal.Rptr.3d 36 ; see also Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39, 42 Cal.Rptr.3d 471 ["trial court abuses its discretion when it erroneously denies as untimely a section 170.6 challenge"].) "Because the trial court exercises no discretion when considering a section 170.6 motion, it is ‘appropriate to review a decision granting or denying a peremptory challenge under section 170.6 as an error of law.’ " ( Bontilao, at pp. 987–988, 250 Cal.Rptr.3d 535.) Moreover, de novo review is especially suitable in this case because the underlying material facts are not in dispute and the question to be decided is one of statutory construction. (See People v. Superior Court (Olivo ) (2019) 36 Cal.App.5th 942, 947, 249 Cal.Rptr.3d 160 ["Where the underlying material facts are not in dispute, we review the trial court's order denying a peremptory challenge de novo."]; Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 604, 41 Cal.Rptr.3d 686 ["Questions of statutory interpretation, and the applicability of a statutory standard to undisputed facts, present questions of law, which we review de novo."].)

"The ordinary principles of statutory construction govern our interpretation of the California Rules of Court. [Citations.] Our objective is to determine the drafter's intent. If the rule's language is clear and unambiguous, it governs." ( Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902, 55 Cal.Rptr.3d 534, 152 P.3d 1109 ( Alan ).) "We give the words of the statute ‘a plain and commonsense meaning’ unless the statute specifically defines the words to give them a special meaning." ( MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1083, 36 Cal.Rptr.3d 650.) We also attempt to give meaning "to every word, phrase, sentence and part of a court rule," if possible. ( Crespin v. Shewry (2004) 125 Cal.App.4th 259, 265, 22 Cal.Rptr.3d 696.)

57 Cal.App.5th 1047

2. Rule 3.516 Does Not Displace Section 170.6 ’s One-Challenge-Per-Side Limitation

Section 170.6 permits "[a] party ... appearing in[ ] an action or proceeding" to

272 Cal.Rptr.3d 103

disqualify the assigned judge by filing a motion and sworn statement of the party's belief that the judge is prejudiced against that party or the party's attorneys. ( § 170.6, subd. (a)(2).) The statute specifies various deadlines for filing the motion depending on whether the case is civil or criminal, whether the judge is "assigned to the case for all purposes," whether the judge is "known at least 10 days before the date set for trial or hearing," whether the motion is "directed to the trial of a cause with a master calendar," or whether "the court in which the action is pending is authorized to have no more than one judge." (Ibid. ) Regardless of which deadline applies, section 170.6 authorizes "only one motion for each side ... in any one action or special proceeding." (Id. , subd. (a)(4).)3

Rule 3.516 establishes special rules for applying section 170.6 in a Judicial Council Coordination Proceeding.4 The rule consists of two sentences that modify the normal procedures governing peremptory challenges to conform those procedures to the unique characteristics of a coordination proceeding.

The first sentence of rule 3.516 establishes the deadline for filing a peremptory challenge: "A party making a peremptory...

To continue reading

Request your trial
1 practice notes
  • In re Canady, C089363
    • United States
    • California Court of Appeals
    • November 25, 2020
    ...the possible benefit to all inmates, we cannot say 57 Cal.App.5th 1038 those regulations implementing the Amendment are contrary to 272 Cal.Rptr.3d 99 the stated purposes of the Amendment such that they are invalid.5 DISPOSITIONThe trial court's order is reversed in its entirety. Upon final......
1 cases
  • In re Canady, C089363
    • United States
    • California Court of Appeals
    • November 25, 2020
    ...the possible benefit to all inmates, we cannot say 57 Cal.App.5th 1038 those regulations implementing the Amendment are contrary to 272 Cal.Rptr.3d 99 the stated purposes of the Amendment such that they are invalid.5 DISPOSITIONThe trial court's order is reversed in its entirety. Upon final......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT