This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motion of Plaintiffs to compel Defendant Rosalba Velazquez to provide further responses to requests for admissions, set one, and to form interrogatories, set one, and for monetary sanctions was argued and submitted.

The present motion was filed on 8 October 2014.

On 10 October 2014, counsel for Defendant filed a peremptory challenge to this Department pursuant to Code of Civil Procedure, § 170.6.  On 20 October 2014, this Department struck the challenge as there was no matter calendar which involved a determination of contested facts.[1]

On 3 November 2014, Defendant filed opposition on the merits of the motion.  She also filed a second peremptory challenge to this Department.[2]  Was she permitted to file a second peremptory challenge?

As a preliminary matter, Code of Civil Procedure, § 170.6 should be construed as broadly as possible to allow a litigant his or her right to challenge a judge. (See Truck Ins. Exch. v. Superior Ct. (2d Dist. 1998) 67 Cal.App.4th 142, 146-47 (citing Nissan Motor Corp. v. Superior Ct. (1992) 6 Cal.App.4th 150, 154).) Code of Civil Procedure, § 170.6 applies only if the motion has been “duly filed.” Code Civ. Proc. 170.6, subd. (a)(4).

Because a challenge filed under section 170.6 has the effect of immediately removing jurisdiction, a duly filed peremptory challenge must be an effective one. (Frisk v. Superior Ct. (4th Dist. 2011) 200 Cal.App.4th 402, 412-413.) The challenge is only complete when the judge is removed. (Ibid.)

Here, the original peremptory challenge was filed when there appeared to be no matters on the calendar. The timing in this matter does not match the required timing under CCP 170.6, which allows the motion within 5 days of a hearing before a judge if that judge is known to hear the matter for at least 10 days, or if made as soon as possible upon assignment under a master calendar system. Code Civ. Proc. 170.6(2).

There are other timing requirements that this Court does not believe are at issue in this matter. Because the timing requirements were not met, the peremptory challenge was not duly filed. The party has not expended their one chance. The party may make another challenge under 170.6 when the timing requirements are met.

1. Order.

The Court concludes that Defendant properly filed the second peremptory challenge.  The Court accepts this peremptory challenge and requests that this matter be directly to the attention of the Calendar Secretary for reassignment.

[1] This Court recalls that when it first received the challenge, it checked the Court’s computer to determine if there were any pending matters.  Given the proximity in time between the filing of the motion and the first peremptory challenge, it may well have been that the computer had not caught up with all of the papers.

[2] Since this second peremptory challenge was filed with the opposition papers, it was not immediately presented to this Department for consideration and was not noticed until this Court began the review of this file on the merits.