Continental East Development v. Superior Court CA4/2

• Court: California Court of Appeal
• Decided: March 9, 2023
• Docket: E080088
• Status: Unpublished

Opinion

Filed 3/9/23 Continental East Development v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CONTINENTAL EAST DEVELOPMENT, INC., E080088

Petitioner, (Super.Ct.No. RIC2002756)

v. OPINION

THE SUPERIOR COURT OF RIVERSIDE COUNTY,

Respondent;

KEAERA BRYANT,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate from an order of the

Superior Court of Riverside County. Craig Riemer, Judge. Petition granted.

Fisher & Phillips, Spencer W. Waldron, Megan E. Walker, and Bret Martin for

Petitioner.

No appearance for Respondent.

1 Schneider Wallace Cottrell Konecky, Carolyn H. Cottrell, and Esther L. Bylsma

for Real Party in Interest.

The initial complaints in this consolidated action named Renaissance Villages, Inc.

(Renaissance) as the sole defendant. The trial court granted leave to amend so as to add

Continental East Development, Inc. (Continental) — allegedly the parent company of

Renaissance — as a defendant. Twenty days later, Continental filed a peremptory

challenge to the trial judge under Code of Civil Procedure section 170.6 (section 170.6).

If the trial judge had already determined a contested fact issue relating to the

merits, Continental could not file a section 170.6 challenge at all. Otherwise, it had to

file one, if at all, within 15 days after its first appearance.

Continental was represented by the same law firm and the same attorneys as

Renaissance. The trial court denied the challenge as untimely, because those attorneys

had appeared in opposition to the motion for leave to amend.

Continental filed this peremptory writ proceeding challenging the denial. We

issued an order to show cause and stayed the proceedings in the trial court.

We will hold that the trial court erred. The appearances by Renaissance’s

attorneys, expressly made solely on behalf of Renaissance, were not appearances by

Continental.

The current plaintiff, Keaera Bryant, contends that the trial judge correctly denied

the section 170.6 challenge, even if for the wrong reason, because he had already

determined contested fact issues relating to the merits. This requires a somewhat detailed

2 discussion of what motions the trial judge had ruled on and what the issues in those

motions actually were. In the end, however, we will conclude that although the

parties — especially Renaissance — were constantly pressing the trial judge to resolve

contested factual issues related to the merits, in each asserted instance, he wisely did not

do so. Hence, the section 170.6 challenge was timely, and we will issue a writ.

I

STATEMENT OF THE CASE

In July-August 2021, a law firm filed three separate complaints against

Renaissance. Two were putative class actions, in which Destiny Sierra and Gabriella

Cornejo, respectively, asserted Labor Code violations, a claim under the Private

Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA), and an unfair competition

claim (Bus. & Prof. Code, § 17200). In the third, Cornejo asserted a PAGA claim.

In November 2021, that law firm associated the law firm now representing Bryant

on appeal (collectively plaintiffs’ counsel).

In December 2021 and February 2022, Renaissance entered into a settlement

agreement with Sierra and Cornejo, respectively.

In or around April 2022, the cases were assigned to Judge Craig Riemer for all

purposes.

3 In July 2022, Renaissance filed a renewed motion to dismiss.1 It argued that

Sierra and Cornejo had never been victims of any Labor Code violations and therefore

did not have standing; that plaintiffs’ counsel had improperly solicited Sierra and

Cornejo; and that Sierra and Cornejo had revoked plaintiffs’ counsel’s authorization, if

any, to prosecute the action. Sierra and Cornejo submitted declarations so testifying.

In opposition, plaintiffs’ counsel argued, among other things, that Keaera Bryant,

a class member, was willing to “step in” as plaintiff.

On September 1, 2022, Bryant filed a motion to consolidate the three actions and

to file a consolidated amended complaint (motion to amend/consolidate). The proposed

complaint substituted Bryant in place of Sierra and Cornejo. It also added Continental —

allegedly the parent company of Renaissance — as a defendant.2 On behalf of a putative

class of employees of Renaissance and/or Continental, it asserted Labor Code violations,

a PAGA claim, and an unfair competition claim.

On September 22, 2022, Renaissance filed an opposition to the motion.

On October 4, 2022, Judge Riemer held a hearing on the motion to dismiss and the

motion to amend/consolidate.

1 An earlier motion to dismiss, filed in March 2022, had been denied without prejudice. 2 Bryant asserts that Continental also “shares officers in common with Renaissance . . . .” She does not cite any support for this assertion in the record.

4 At that point, Renaissance was represented by the firm of Fisher & Phillips (Fisher

firm), including attorneys Spencer W. Waldron and Bret Martin. Waldron and Martin

duly appeared at the hearing “for the defendant,” “for Renaissance Villages.”

After hearing argument, Judge Riemer denied the motion to dismiss; he ruled:

“[W]hatever problems existed . . . with the named Plaintiffs, it would appear to me . . .

that those problems have apparently, perhaps not positively, but apparently been cured by

the location of a substitute Plaintiff . . . .” “It may be that you’re able to persuade me in

the future that the defense is entitled to dismissal or some other sort of relief based upon

the conduct of Plaintiff’s counsel or class counsel, but I’m not persuaded of that as yet.”

“[T]here’s lots of questions which the Court has yet to finally determine the answers on.”

Renaissance asked Judge Riemer to make the denial of the motion to dismiss

without prejudice, so it could be renewed after conducting discovery. He agreed: “Well,

. . . any new motion is going to be a [m]otion [f]or [r]econsideration, so you’re going to

have to meet the hurdles of CCP 1008. But assuming that you’ve got new evidence that

could not reasonably have been presented earlier, that will not present much of a hurdle

to you.”

Judge Riemer also granted the motion to amend/consolidate, without stating

reasons.3

3 He may have stated reasons in his tentative ruling, but that is not in the record.

5 Judge Riemer then asked whether “Renaissance” waived notice. Attorney Martin

replied, “[N]otice waived, your Honor.”

On October 14, 2022, Continental filed a peremptory challenge (§ 170.6) to Judge

Riemer. Like Renaissance, Continental was represented by the Fisher firm, including

Waldron and Martin.

On October 19, 2022, Judge Riemer denied the challenge. He ruled that “[t]he

Court does not grant relief to parties who have not paid their first-paper fee.” That same

day, Continental paid the fee.

On October 24, 2022, Continental filed a new peremptory challenge. On October

25, 2022, Judge Riemer denied it again. He ruled that “[b]ecause the defendant waived

notice on 10-4-22, any 170.6 disqualification request was due within 15 days.”

II

THE TIMELINESS OF THE SECTION 170.6 CHALLENGE

A. General Legal Background.

“Code of Civil Procedure section 170.6 affords litigants the right to peremptorily

challenge a superior court judge based on a good faith belief that the judge is prejudiced.”

(Maas v. Superior Court (2016) 1 Cal.5th 962, 969, fn. omitted.) “So long as the ‘motion

is duly presented, and the affidavit or declaration under penalty of perjury is duly filed or

an oral statement under oath is duly made, thereupon and without any further act or

proof,’ a different judge must be assigned to try the cause or hear the matter. [Citation.]”

(Id. at p. 972.)

6 When a civil case has been assigned to a judge for all purposes, a section 170.6

challenge must be filed “within 15 days after notice of the all purpose assignment, or if

the party has not yet appeared in the action, then within 15 days after the appearance.”

(§ 170.6, subd. (a)(2).)

“The word ‘appearance’ as it is used in section 170.6 consistently has been

interpreted to mean ‘general appearance.’ [Citations.] It has been construed in this

fashion for the simple reason that it is only upon the making of a general appearance that

a defendant submits to the jurisdiction of the court. [Citation.]” (La Seigneurie U.S.

Holdings, Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504.)

“But such challenge is not allowed if, prior to the party’s appearance, the judge

has decided a contested fact issue relating to the merits (e.g., on a preliminary injunction

hearing, [citation]) and the party appears in the same proceeding . . . in which the

contested fact issue was decided. [Citations.]” (Weil & Brown, Cal. Practice Guide: Civ.

Procedure Before Trial (The Rutter Group 2022) § 9:127.6, and cases cited (Weil &

Brown); see § 170.6, subd. (a)(2).)

“‘[S]ection 170.6 is to be liberally construed in favor of allowing a peremptory

challenge, and a challenge should be denied only if the statute absolutely forbids it.’

[Citations.]” (Maas v. Superior Court, supra, 1 Cal.5th at p. 973.)

7 B. General Appearance.

“‘An appearance is general if the party contests the merits of the case or raises

other than jurisdictional objections. [Citations.]’ [Citation.]” (Fireman’s Fund Ins. Co.

v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)

The trial court essentially ruled that, by appearing at the October 4 hearing, the

Fisher firm made a general appearance on behalf of Continental. This was error. As the

record demonstrates, the firm appeared solely on behalf of Renaissance; it waived notice

solely on behalf of Renaissance. The fact that the same firm also appeared later on behalf

of Continental is irrelevant. A law firm that makes an appearance for one client does not

give the trial court personal jurisdiction of its other clients.

Bryant takes the position that Continental actually made a general appearance on

September 22, 2022, when the Fisher firm filed an opposition to her motion to

consolidate/amend. That opposition, however, was entitled “Defendant Renaissance

Villages, Inc.’s Opposition . . . .” (Capitalization altered.) It was filed by the Fisher firm

as “Attorneys for Defendant Renaissance Villages, Inc.” (Capitalization altered.)

In Bryant’s view, Continental was the real party in interest, so to speak, in that

opposition. The opposition argued, among other things, that it was improper to amend so

as to name Continental. Certainly it was in Continental’s interest for the motion to

amend to be denied. It does not matter. A party arguing something that benefits a

nonparty does not magically turn the nonparty into a party.

8 Bryant relies on Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th

114 (Sunrise Financial). There, the plaintiffs filed a motion in a San Diego County

action to consolidate it with actions pending in San Bernardino and Los Angeles

Counties. (Id. at p. 118.) Three of the defendants in the San Bernardino action (the

Sunshine defendants) filed an opposition in the San Diego action. (Ibid.) Nevertheless,

the motion was granted. The Sunshine defendants then filed a section 170.6 challenge to

the judge in the San Diego action. (Sunrise Financial, supra, at p. 118.) The appellate

court held that the section 170.6 challenge was untimely, because it was filed more that

15 days after the Sunshine defendants had appeared in the San Diego action by filing an

opposition to the motion to consolidate. (Sunrise Financial, supra, at pp. 124-127.)

The difference between Sunrise Financial and this case could hardly be more

glaring. There, the Sunshine defendants filed the opposition, and the Sunshine

defendants filed the section 170.6 challenge. Here, Renaissance filed the opposition, but

Continental filed the section 170.6 challenge. The latter was Continental’s first

appearance in the action.

Bryant also notes that Al Rattan, the president of Continental, filed a declaration in

support of Renaissance’s opposition. But the distinction between a party and a witness is

fairly well-established. A witness who submits a declaration in connection with a motion

does not thereby become a party to the action, much less make his or her employer a

party

9 We conclude, therefore, that Continental made its first appearance in the action on

October 14, 2022, when it filed its first section 170.6 challenge. Accordingly, the

challenge was timely, unless Judge Riemer had already decided a contested fact issue

relating to the merits. We turn to that question.

C. Decision of a Contested Fact Issue.

Bryant argues that the trial court decided contested factual issues relating to the

merits in ruling on (1) Renaissance’s motion to dismiss, and (2) Bryant’s motion to

consolidate/amend.

1. The motion to dismiss.

The motion to dismiss was premised on asserted facts, such as that Sierra and

Cornejo had been victims of Labor Code violations and that plaintiffs’ counsel had

improperly solicited them. In opposition, plaintiffs’ counsel asserted additional facts,

including that Renaissance had settled with Sierra and Cornejo behind the backs of

plaintiffs’ counsel.

By and large, however, these facts were not contested. Rather, each side disclosed

the facts in its favor and sought a determination of the legal effect of those facts.4

4 There are lurking questions as to whether a nonstatutory motion to dismiss was even authorized under the circumstances, and if it was, whether it could be based on evidence (like a motion for summary judgment) rather than on the allegations of the complaint (like a demurrer). (See generally Weil & Brown, supra, Attacking the Pleadings ¶¶ 7:370-7:376; but see Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1312 [where named plaintiffs have not actually authorized attorney to proceed with case, “perhaps” the “appropriate remedy is . . . a nonstatutory motion to dismiss.”].) As these issues were not raised below, we express no opinion on them.

10 Bryant asserts that there were two sets of contested facts. First, she points to

“when Bryant’s last day of work was, and whether she was in fact subject to Covid-

related temperature checks.” Second, she points to whether the amounts paid in

settlement to Sierra and Cornejo constituted “consideration, direct or indirect, . . . for the

dismissal.” (Cal. Rules of Court, rule 3.770(a).)

However, Judge Riemer did not decide these issues. Bryant’s working conditions

went to whether she was a member of the class. Judge Riemer found only that she

“apparently, perhaps not positively,” was an appropriate class representative. (See

Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 95-99 [finding of a substantial

probability that plaintiff would prevail, for discovery purposes, was not a determination

of contested fact issue relating to merits].)

Likewise, he made no finding on the consideration question. Consideration was

relevant to whether Renaissance was “‘pick[ing] off’ prospective class representatives by

offering them individual relief not made available to the entire class” (Kagan v. Gibraltar

Sav. & Loan Assn. (1984) 35 Cal.3d 582, 587, disapproved on other grounds by Meyer v.

Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643, fn. 3); if so, the trial court could not

dismiss without notice to the putative class. (Ibid.; see also La Sala v. American Sav. &

Loan Assn. (1971) 5 Cal.3d 864, 873; Fed. Rules Civ. Proc. 23(e).) Judge Riemer,

however, denied the motion to dismiss for a different reason, namely because Bryant was

substituting in. Thus, he never reached the consideration question.

11 More generally, Judge Riemer’s ruling on the motion to dismiss was without

prejudice. He agreed that, after conducting discovery, Renaissance could file a motion

for reconsideration. Thus, his ruling was merely provisional — it was premised on the

record that had been developed thus far, and it was subject to change based on new

evidence on any of the relevant factual issues. In sum, in denying the motion to dismiss,

Judge Riemer did not determine any contested fact issue relating to the merits.

2. The motion to amend/consolidate.

Bryant asserts that the motion to amend/consolidate — and particularly

Continental’s opposition — raised “factual disputes such as whether Bryant ‘work[ed]

during the Covid-19 pandemic,’ whether Bryant was an employee of Continental,

whether Continental’s records reflected Bryant’s employment, whether the previous

plaintiffs were mistaken in their factual representations of unlawful ‘solicitation,’ and the

factual circumstances surrounding the settlements of the previous plaintiffs.”

A motion for leave to amend, however, does not raise any factual issues relating to

the merits. “If the motion to amend is timely made and the granting of the motion will

not prejudice the opposing party, it is error to refuse permission to amend . . . .

[Citations.]” (Daum v. Superior Court (1964) 228 Cal.App.2d 283, 289.) Prejudice to

the opposing party may be a factual issue, but it is not a factual issue relating to the

merits. Admittedly, a timely and nonprejudicial motion to amend may be (but is not

required to be) denied when the amended complaint fails to state a cause of action.

(California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280,

12 disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co.

(2000) 23 Cal.4th 390, 407, fn. 11.) However, this is another purely legal question.

(Torres v. Adventist Health System/West (2022) 77 Cal.App.5th 500, 507.)

Likewise, a motion to consolidate does not raise any factual issues relating to the

merits. “The usual ground is simply that consolidation would avoid repetitive trials of

the same ‘common issues’ and thus avoid ‘unnecessary costs and delays’ to the court and

to the parties; and the substantial risk of inconsistent adjudications. [¶] In short, all that

the moving party need show is that the issues in each case are basically the same, and that

‘economy and convenience” would be served by a joint trial. [Citation.]” (Weil &

Brown, supra, Case Management and Trial Setting § 12:359.) Again, economy and

convenience may be a factual issue, but it is not a factual issue relating to the merits.

In short, Renaissance’s litigation strategy may have led it to oppose the motion to

amend/consolidate by raising irrelevant factual issues; however, that did not require

Judge Riemer to resolve them. And there is no indication that he did. Indeed, after he

and Renaissance’s counsel discussed one factual issue — whether plaintiffs’ counsel had

filed three actions, rather than one, “to harass and intimidate” — he quite properly

concluded, “This is really an aside, Counsel. It doesn’t go to the merits of anything that’s

in front of us here.”

Accordingly, once again, in granting the motion to amend/consolidate, Judge

Riemer did not determine any contested fact issue relating to the merits.

It follows that Continental’s section 170.6 challenge was timely.

13 III

DISPOSITION

Let a writ of mandate issue directing the respondent superior court to vacate its

order denying Continental’s section 170.6 challenge and to issue a new order granting

that challenge. Our stay order is vacated. Continental is awarded costs on appeal against

Bryant. (Cal.Rules of Court, rule 8.493(a)(1)(A).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P J.

We concur:

SLOUGH J.

FIELDS J.