Metropolitan News-Enterprise


Friday, May 23, 2008


Page 3


Court: Pretrial Discovery Ruling Not ‘On Merits’ Under Sec. 170.6


By Sherri M. Okamoto, Staff Writer


A pretrial order allowing a plaintiff to seek discovery of the defendant’s finances in order to pursue a punitive damage claim is not a ruling on the merits for purposes of Code of Civil Procedure Sec. 170.6. the Court of Appeal for this district ruled yesterday.

Div. Eight, denying a petition for writ of mandate, agreed with Los Angeles Superior Court Judge Soussan G. Bruguera that Bruguera’s ruling on the discovery issue in a personal injury action did not preclude the defendant from removing the judge from subsequent proceedings in the case.

The ruling came in connection with a suit brought on behalf of Jane Guardado, a minor, against the owners of the apartment building where she resided with her family in October 2004. The complaint alleged improper conduct by the apartment manager.

The plaintiff moved for an order authorizing pretrial punitive damage discovery under Civil Code Sec. 3295(c), which Bruguera granted, finding a substantial probability that the plaintiff would prevail on the punitive damages claim.

The following May, the plaintiff  named Max Webb, who apparently held an ownership interest in the property,  as an individual defendant by way of a Doe amendment. As his first appearance in the action, Webb filed a peremptory challenge to Bruguera pursuant to Sec. 170.6.

The plaintiff opposed the challenge, arguing that it was precluded because it was filed after Bruguera had made her ruling on the Sec. 3295(c) motion. Bruguera, however, found the challenge timely and proper, and transferred the case to another judge.

The Court of Appeal initially summarily denied the plaintiff’s petition for writ of mandate, but the state Supreme Court granted review and sent the matter back to Div. Eight for a ruling on the merits. Writing for the panel yesterday, Justice Madeleine Flier said that Webb was entitled to assert his peremptory challenge.

Under Sec. 170.6, a party who has not appeared in an action at the time the case is assigned to a particular judge must assert a challenge within 10 days of his first appearance Flier explained.

The statute also provides the fact that a judicial officer has presided or acted in connection with a pretrial conference or other hearing, proceeding or motion that did not involve “a determination of contested fact issues relating to the merits” will not preclude a party from making a peremptory challenge.

The statutory language of Sec. 3295(c) expressly states that a pretrial punitive damage discovery determination “shall not be considered to be a determination on the merits of the claim.,” Flier noted.

“‘Merits’ cannot mean different things in these two sections,” the justice insisted.

The plain meaning of both statutes was clear and unambiguous, Flier wrote:

“It makes sense, and it is reasonable to conclude that a decision that is not on the ‘merits’ for the purpose of section 3295(c) is also not on the ‘merits’ for the purpose of section 170.6.”

Presiding Judge Candace Cooper and Justice Laurence D. Rubin joined Flier in her opinion.

Guardado was represented by John C. Carpenter of    Carpenter & Zuckerman. He could not be reached for comment

James Turken of Dickstein Shapiro, and Curtis A. Cole and Matthew S. Levinson of Cole Pedroza represented Webb.

Levinson said his client was pleased with the outcome of the case. He declined to say why his client challenged Bruguera, adding that his client had exercised his right to not state a reason in his affidavit in support of the challenge.   

He said:

“We think the decision is helpful for defendants because it preserves a defendants right when a plaintiff seeks to belatedly add defendants to an action and that it will further help preclude game-playing by plaintiffs who would otherwise seek to delay adding a defendant to an action.”

The case is Guardado v. Superior Court (Mariposa Gardens), B201147.


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