Continental East Development v. Superior Court CA4/2 ( 2023 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
14