Rothstein v. Superior Court of L.A. Cnty.

• Decision Date: 16 September 2016
• Docket Number: B275603
• Citation: 3 Cal.App.5th 424,207 Cal.Rptr.3d 616
• Court: California Court of Appeals Court of Appeals
• Parties: Mark ROTHSTEIN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Peymaneh Rothstein et al., Real Parties in Interest.

3 Cal.App.5th 424

207 Cal.Rptr.3d 616

Mark ROTHSTEIN, Petitioner,

v. The SUPERIOR COURT of Los Angeles County, Respondent;Peymaneh Rothstein et al., Real Parties in Interest.

B275603

Court of Appeal, Second District, Division 5, California.

Filed September 16, 2016

Hersh Mannis, Neal R. Hersh, Beverly Hills, Jeff M. Imerman, and Teresa Y. Lin, for Petitioner.

No appearance for Respondent.

Jarrette & Walmsley, Robert R. Walmsley and Marlea F. Jarrette, for Real Party in Interest Precious Time, LLC.

No appearance for Real Party in Interest Peymaneh Rothstein.

BAKER, J.

While a husband and wife were litigating their ongoing marriage dissolution case, a limited liability company run by the wife filed a civil action concerning a disputed debt at issue in the dissolution proceedings. The superior court deemed the two cases related and assigned the civil case to the already assigned judge. The question we decide is whether the limited liability company's Code of Civil Procedure section 170.6 challenge¹ in the related civil action requires transfer of both cases to a new judge.

I

Peymaneh Rothstein (Peymaneh) and Mark Rothstein (Mark) instituted proceedings in January 2014 to dissolve their marriage, Los Angeles Superior Court case number BD595040 (the Family Law Case). In an Income and Expense Declaration filed in connection with her request for an order concerning child and spousal support (plus attorney fees), Peymaneh included an amended schedule of assets and debts that listed a $50,000 loan to Mark—made in the name of Precious Time, LLC (Precious Time)—among her separate property assets. After certain other preliminary proceedings, Peymaneh filed a Code of Civil Procedure section 170.6 challenge to the then-assigned judicial officer and the matter was thereafter assigned to Judge Christine Byrd.

Over the following months, Judge Byrd made findings and orders in the Family Law Case, resolving factual disputes involving child custody and visitation, as well as child and spousal support. Then, in January 2016, Judge Byrd entered a judgment upon stipulation of the parties that terminated Peymaneh and Mark's married status. The judgment provided, however, that the “court reserves jurisdiction over all other issues of the marriage, including, but not limited to, the nature, value and extent of the community property and separate property, the division of property, spousal support, child support, attorneys fees and costs, and all other matters which the court determines appropriate and within the scope of its jurisdiction.”

Additional proceedings ensued, and about a month after Judge Byrd granted a motion to impose sanctions against Peymaneh, Real Party in Interest Precious Time, a Virginia limited liability company, filed a civil suit against Mark in case number LC103883 (the Civil Case). The suit alleged causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. The causes of action were based on alleged facts that Mark asked for a $100,000 loan “from [Precious Time's] principal and CEO,” that Precious Time and Mark thereafter entered an oral agreement for such a loan, and that Mark had repaid only half the amount, leaving a balance due of $50,000.

Mark filed a notice with the superior court that identified the Family Law Case and the Civil Case as related. The Notice of Related Case explained the two cases were related because the debt alleged to be the basis of the causes of action in the Civil Case was “a matter previously alleged by [Peymaneh] to be in dispute in [the Family Law Case] ....” The judge presiding in Department 1 of the superior court, which processes related case notices in probate and family law matters, determined the cases were related under the governing local court rule. Specifically, the presiding judge acknowledged the parties were not identical in both suits but concluded the cases were related (a) because a public records search revealed Peymaneh was the director of Precious Time (i.e., the unnamed CEO referenced in the Civil Case complaint), a point she did not dispute, and (b) because the $50,000 debt alleged in the Civil Case was also in dispute in the Family Law Case. Both cases were therefore ordered related—not consolidated—and the Civil Case was transferred to Judge Byrd, the judge before whom the Family Law Case was then pending.

On May 27, 2016, with both cases now related and assigned to the same judicial officer, counsel for Precious Time filed a section 170.6 peremptory challenge to Judge Byrd in the Civil Case. In a minute order captioned with both case numbers, Judge Byrd found the challenge was timely and ordered as follows: “Pursuant to the direction of Department 2, both actions [the Civil Case and the Family Law Case] are reassigned for all purposes to the Honorable Tamara Hall....”

Mark asked Judge Byrd to reconsider her order granting the section 170.6 challenge and transferring both cases to another judge. He argued the challenge had not been filed in the Family Law Case and there was therefore no basis to transfer that case to another judge. Mark also argued the terms of section 170.6 barred transfer of the Family Law Case to a new judge because Judge Byrd had already made determinations on contested factual issues relating to the merits of the case. And Mark further contended, in part based on documentary evidence he submitted indicating Peymaneh was the sole Member of Precious Time, that the Civil Case was merely a “continuation of” the Family Law Case such that the section 170.6 peremptory challenge was improper.

Judge Byrd denied Mark's request for reconsideration. Mark then sought a writ of mandate in this court, and we issued an alternative writ directing Judge Byrd to enter a new order transferring only the Civil Case pursuant to Precious Time's section 170.6 challenge (while retaining the Family Law Case) or to show cause why a peremptory writ to that effect should not issue. Judge Byrd issued no new order, and we accordingly proceed to decide whether to issue a peremptory writ.

II

We hold a section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge. We explain why.

“Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the timing of the motion are imposed by this statute, and a party may exercise such a challenge only once during the trial of an action or a special proceeding.”² ( Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1248–1249, 135 Cal.Rptr.2d 639, 70 P.3d 1054.) A section 170.6 disqualification motion accompanied by an affidavit or declaration alleging such prejudice is alone sufficient, and the motion requires no proof of actual prejudice. (Swift v. Superior Court (2009) 172 Cal.App.4th 878, 883, 91 Cal.Rptr.3d 504.) Although a section 170.6 motion is often referred to as an “automatic” disqualification motion because a court may not inquire into the basis for alleged prejudice, a court presented with such a motion retains authority to determine whether it is “duly presented.” (§ 170.6, subd. (a)(4) ; Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 410, 132 Cal.Rptr.3d 602 ; see also Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190, 1 Cal.Rptr. 9, 347 P.2d 9 [assessing whether challenge timely].)

One circumstance in which a court may be called to determine whether a section 170.6 challenge was duly presented and in proper form is when confronted with the question of whether the challenge is filed in a case that is a mere continuation of an earlier action. That was the issue before this court in Pickett v. Superior Court (2012) 203 Cal.App.4th 887, 138 Cal.Rptr.3d 36 (Pickett ). We recognized section 170.6 permits a party and other parties aligned on the same side only one peremptory challenge per action, and we reiterated the rule that a party that cannot peremptorily challenge a judge in a newly filed action that qualifies as a continuation of an earlier filed action in which the allotted challenge has already been used. ( Id. at pp. 892–893, 138 Cal.Rptr.3d 36.) Applying this rule, we held the trial judge erroneously struck Pickett's section 170.6 challenge, reasoning the newly filed action was not a “continuation of” an earlier case. (Id. at p. 893, 138 Cal.Rptr.3d 36.) Quoting NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 101 Cal.Rptr.3d 657 (NutraGenetics ), we explained an action is a continuation of an earlier action for section 170.6 purposes where the subsequent proceeding involves “ ‘the same parties at a later stage of their litigation with each other, or ... arise out of conduct in or orders made during the earlier proceeding.’ ” (Pickett , supra , 203 Cal.App.4th at p. 893, 138 Cal.Rptr.3d 36.)

Judge Kumar, sitting by designation, concurred separately in Pickett to highlight an issue that is the issue we are called to resolve in this case. In the NutraGenetics case cited by the Pickett majority, the trial judge accepted a section 170.6 challenge filed in a related case and then “transferred both the related case and the original case to another judge.” (Id. at p. 896, 138 Cal.Rptr.3d 36 (conc. opn. of Kumar, J.), italics in original.) Judge Kumar noted there was nothing to indicate the two actions at issue in NutraGenetics had been consolidated, as opposed to merely related, and he opined that “NutraGenetics should not be considered authority for the proposition that, under these circumstances, ... section 170.6 requires the transfer of the original case to another judge.” (Id. at p. 896, 138 Cal.Rptr.3d 36 (conc. opn. of Kumar, J.); see also id. at p. 897, 138 Cal.Rptr.3d 36 (conc....