A motion to challenge a judge under Code of Civil Procedure section 170.6 has been called a “silver bullet” because it does not require proof of good cause; it only has to be timely filed. In Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, the Court of Appeal for the Fourth Appellate District resolved what it deemed an issue of first impression: when does the 15-day clock begin ticking to use the silver bullet in cases involving potential consolidation and coordination? The Court of Appeal held that the 15-day period to make a peremptory challenge to a judge assigned to a case for all purposes was triggered when defendants opposed consolidation of their action with other cases arising from the same fraudulent conduct. (See Code of Civil Procedure section 403 and California Rules of Court, rule 3.500(b), (c) & (d).) As a result, their peremptory challenge was untimely.

The plaintiff filed actions in three different counties and then filed a noncomplex motion to consolidate the actions in the San Diego County case. Defendants in the other two actions filed an opposition to the motion filed in the San Diego County Superior Court—on that court’s caption. The San Diego judge being challenged by the defendants had already been assigned to the action for all purposes, which was noted in the case caption. The assigned trial judge heard the motion to consolidate, and on March 2nd, issued an order denying the motion; on March 8th, defendants fired their silver bullet, which was denied as untimely even though the peremptory challenge was made within 15 days of the order denying the motion to consolidate. So when should the peremptory challenge have been filed?

The Court of Appeal answered this question by concluding that the clock began to run on the date that the defendants filed their opposition to the motion to consolidate and evidentiary objections, which was a general appearance that triggered the running of the 15 days to challenge the assigned judge. Section 170.6 permits a challenge to be filed before the trial or hearing begins, but has exceptions which mandate an earlier filing. The one that tripped up the defendants was the one that started the clock running when a judge has been assigned for all purposes or the party has not yet appeared in the action—within 15 days of the appearance. Here, a general appearance was made by defendants filing their opposition to the motion and evidentiary objections. (See Code Civ. Proc. section 396(b) [a general appearance is defined as where a defendant takes part in the particular action which in some manner recognizes the authority of the court to proceed (other than a challenged to the jurisdiction of the court)].) Thus, opposing a motion on any grounds other than jurisdiction, is a general appearance, and that is what occurred with the filing of an opposition to the consolidation motion and evidentiary objections. A statement in the opposition that the parties were specially appearing did not matter—it is the character of the relief sought, not the intention of the parties, that matters.

Silver bullets can’t hit targets that are no longer there. The defendants counted correctly but from the wrong event, may not have read section 170.6, and failed to recognize when a general appearance is made, special appearance disclaimers aside. What good is a silver bullet if, when fired, it turns out to be a blank?

As a litigator, Neil has been lead counsel in a substantial number of court and jury trials, appeals and arbitrations in state and federal courts in the areas of legal malpractice defense, technology, securities, fiduciary fraud, corporate and business disputes, real estate and natural resources involving environmental, water and oil and gas.