One Museum Square v. Superior Court CA2/2 ( 2024 )

Filed 2/16/24 One Museum Square v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
ONE MUSEUM SQUARE, LLC, B331272
Petitioner, (Los Angeles County
Super. Ct. No. 22STCV14308)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
THE WESTERN SURETY COMPANY,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Maureen Duffy-
Lewis, Judge. Petition granted.
Roshanian Payman and Tamineh Roshanian for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
_______________________________
This proceeding involves the propriety of the trial judge’s
honoring a peremptory challenge under Code of Civil Procedure section
170.61 (§ 170.6) from a late-appearing cross-defendant. The particular
question presented is whether the trial court had already decided
contested matters in the litigation so as to preclude any further § 170.6
challenges. (§ 170.6, subd. (a)(2).)
Petitioner here is plaintiff One Museum Square, LLC (One
Museum Square). It owns a building that was undergoing construction.
Due to alleged waterproofing defects, One Museum Square, with an
assignment of rights from the general contractor, filed an action
against subcontractor Danny Letner, Inc. (Letner). Letner cross-
complained, seeking to enforce a mechanic’s lien on the property and
filed a lis pendens.
One Museum Square moved to expunge the mechanic’s lien and
the lis pendens. The trial court agreed to expunge the lis pendens but
failed to address the mechanic’s lien. Upon One Museum Square’s
petition for a writ of mandate in case No. B325330, this court issued an
alternative writ directing the trial court to vacate its order expunging
the lis pendens and set a hearing to consider the full relief requested by
One Museum Square.
Thereafter, the general contractor filed a cross-complaint in the
action and named as a cross-defendant the surety company that had
issued a performance bond in Letner’s favor. When the surety company
appeared in the action it filed a § 170.6 challenge to the trial judge, who
accepted it. One Museum Square filed the instant petition for a writ of
mandate from this court challenging that acceptance, but its petition
was denied. One Museum Square sought review by the California
Supreme Court, which granted review of the matter and transferred it
back to this court. The Supreme Court directed that an order to show
cause issue as to why the relief sought in the petition should not be
1 Undesignated statutory references are to Code of Civil
Procedure.
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granted. The Supreme Court also issued a stay of the action pending a
resolution of this proceeding.
An order to show cause issued, directing that any return to the
petition be filed on or before November 30, 2023. No return was filed.
One Museum Square filed and served a traverse pointing out that no
return had been filed, but that did not elicit any reaction from the
responding party indicating that their failure to file a return was in
error.
Accordingly, there has been no showing of cause why the relief in
the petition should not be granted. The petition for a writ of mandate,
filed August 28, 2023, is therefore granted. A writ of mandate hereby
issues directing the superior court to vacate its order of August 10,
2023, accepting the § 170.6 challenge, and to enter a new and different
order striking that challenge. The stay of proceedings is dissolved.
Petitioner shall receive its costs on this petition.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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