Prescription Opioid Cases

Filed 11/25/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PRESCRIPTION OPIOID CASES. B302241
(JCCP No. 5029)
ORIGINAL PROCEEDINGS in mandate. William F.
Highberger, Judge. Petition denied.
Robins Kaplan, Roman M. Silberfeld, Bernice Conn,
Michael A. Geibelson, Glenn A. Danas and Lucas A. Messenger
for Petitioners.
No appearance for Respondent.
O’Melveny & Meyers, Michael G. Yoder, Amy J.
Laurendeau, Charles C. Lifland, Sabrina H. Strong and
Jonathan P. Schneller for Real Parties in Interest Johnson
& Johnson and Janssen Pharmaceuticals, Inc.
Morgan, Lewis & Bockius, Collie F. James IV and Steven
A. Reed for Real Parties in Interest Teva Pharmaceutical
Industries Limited, Teva Pharmaceuticals USA, Inc.,
Cephalon, Inc., Actavis LLC, Actavis Pharma, Inc. and
Watson Laboratories, Inc.
Arnold & Porter Kaye Scholer, Sean Morris, John
Lombardo and Tiffany Ikeda for Real Parties in Interest
Endo Health Solutions Inc. and Endo Pharmaceuticals Inc.
Covington & Burling, Nathan E. Shafroth and Raymond
G. Lu for Real Party in Interest McKesson Corporation.
Reed Smith, Steven J. Boranian, Adam D. Brownrout,
Eric J. Buhr, Alexis A. Rochlin and Sarah B. Johansen for
Real Party in Interest AmerisourceBergen Corporation.
Baker & Hostetler and Teresa C. Chow for Real Party
in Interest Cardinal Health, Inc.
Kirkland & Ellis and Zachary Byer for Real Parties in
Interest Allergan PLC, Allergan Finance, LLC, Allergan, Inc.
and Allergan USA, Inc.
Ropes & Gray and Rocky C. Tsai for Real Party in Interest
Mallinckrodt LLC.
_________________________
In this case we hold Code of Civil Procedure section 170.6
authorizes only one judicial peremptory challenge for each side in
a Judicial Council Coordination Proceeding under rule 3.516 of
the California Rules of Court.1 As we explain, rule 3.516 modifies
the normal procedures governing section 170.6 peremptory
challenges in two ways to conform the procedures to the unique
characteristics of a coordination proceeding. The rule (1) requires
the party making a peremptory challenge to submit it in writing
1 Statutory references are to the Code of Civil Procedure,
unless otherwise designated. Rule references are to the
California Rules of Court.
2
to the assigned judge within 20 days after service of the order
assigning the judge to the coordination proceeding; and (2)
specifies that all plaintiffs or similar parties constitute “a side”
and all defendants or similar parties constitute “a side” for
purposes of “applying Code of Civil Procedure section 170.6.”
(Rule 3.516.) Rule 3.516 does not displace section 170.6’s
fundamental directive that there shall be “only one motion for
each side . . . in any one action or special proceeding.” (§ 170.6,
subd. (a)(4).) The trial court correctly interpreted and applied
the rule. We deny the writ.
FACTS AND PROCEDURAL BACKGROUND
Petitioners and other similarly situated California
governmental entities filed actions in several counties
throughout the state against Real Parties alleging claims for
false advertising, nuisance, fraud, negligent failure to warn,
and civil conspiracy arising out of Real Parties’ manufacture
and distribution of opioid products.2
On May 9, 2019, the Presiding Judge of the Orange County
Superior Court, Judge Kirk Nakamura, under the authorization
of the Chairperson of the Judicial Council, assigned Judge Peter
Wilson to be the coordination motion judge. On May 29, 2019,
Petitioners filed a section 170.6 peremptory challenge to
disqualify Judge Wilson. On May 31, 2019, Judge Nakamura
granted the peremptory challenge and reassigned the
coordination motion to Orange County Superior Court Judge
William Claster.
2 Several of the cases were removed to federal court and
transferred to a multidistrict litigation pending in Ohio. The
Kern County and City of El Monte cases were remanded to state
court.
3
On June 3, 2019, the California Attorney General filed a
lawsuit against one of the Real Parties in Los Angeles County
Superior Court. The Attorney General requested Judge Claster
consider the action for coordination.
On September 6, 2019, Judge Claster granted the
coordination petition as to Petitioners’ actions. Judge Claster
also found Los Angeles County, where two of the three
coordinated actions were pending, was the appropriate venue
for the coordination proceeding. On September 30, 2019,
Los Angeles County Superior Court Judge William Highberger
was assigned as the coordination trial judge.
On October 11, 2019, Petitioners filed a second section
170.6 peremptory challenge to disqualify Judge Highberger.
Real Parties filed an objection, arguing section 170.6 and
rule 3.516 allow only one peremptory challenge per side in
a coordination proceeding and Petitioners had already used
their challenge to strike Judge Wilson.
On October 31, 2019, Judge Highberger denied Petitioners’
motion to disqualify. This writ proceeding followed.
DISCUSSION
1. Standard of Review
An order granting or denying a motion to disqualify
is normally reviewed for an abuse of discretion. (See People
v. Superior Court (Maloy) (2001) 91 Cal. App. 4th 391, 395;
Zilog, Inc. v. Superior Court (2001) 86 Cal. App. 4th 1309, 1315.)
However, it is settled that a trial court lacks discretion to deny a
section 170.6 motion that complies with the applicable statutory
procedures. (Bontilao v. Superior Court (2019) 37 Cal. App. 5th
980, 987; Maas v. Superior Court (2016) 1 Cal. 5th 962, 972;
Pickett v. Superior Court (2012) 203 Cal. App. 4th 887, 892; see
4
also Daniel V. v. Superior Court (2006) 139 Cal. App. 4th 28, 39
[“trial court abuses its discretion when it erroneously denies as
untimely a section 170.6 challenge”].) “Because the trial court
exercises no discretion when considering a section 170.6 motion,
it is ‘appropriate to review a decision granting or denying a
peremptory challenge under section 170.6 as an error of law.’ ”
(Bontilao, at pp. 987–988.) Moreover, de novo review is especially
suitable in this case because the underlying material facts are
not in dispute and the question to be decided is one of statutory
construction. (See People v. Superior Court (Olivo) (2019) 36
Cal. App. 5th 942, 947 [“Where the underlying material facts
are not in dispute, we review the trial court’s order denying a
peremptory challenge de novo.”]; Jenkins v. County of Riverside
(2006) 138 Cal. App. 4th 593, 604 [“Questions of statutory
interpretation, and the applicability of a statutory standard
to undisputed facts, present questions of law, which we review
de novo.”].)
“The ordinary principles of statutory construction govern
our interpretation of the California Rules of Court. [Citations.]
Our objective is to determine the drafter’s intent. If the rule’s
language is clear and unambiguous, it governs.” (Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal. 4th 894, 902
(Alan).) “We give the words of the statute ‘a plain and
commonsense meaning’ unless the statute specifically defines
the words to give them a special meaning.” (MacIsaac v. Waste
Management Collection & Recycling, Inc. (2005) 134 Cal. App. 4th
1076, 1083.) We also attempt to give meaning “to every word,
phrase, sentence and part of a court rule,” if possible. (Crespin
v. Shewry (2004) 125 Cal. App. 4th 259, 265.)
5
2. Rule 3.516 Does Not Displace Section 170.6’s
One-Challenge-Per-Side Limitation
Section 170.6 permits “[a] party . . . appearing in[ ] an
action or proceeding” to disqualify the assigned judge by filing
a motion and sworn statement of the party’s belief that the judge
is prejudiced against that party or the party’s attorneys. (§ 170.6,
subd. (a)(2).) The statute specifies various deadlines for filing
the motion depending on whether the case is civil or criminal,
whether the judge is “assigned to the case for all purposes,”
whether the judge is “known at least 10 days before the date set
for trial or hearing,” whether the motion is “directed to the trial
of a cause with a master calendar,” or whether “the court in
which the action is pending is authorized to have no more
than one judge.” (Ibid.) Regardless of which deadline applies,
section 170.6 authorizes “only one motion for each side . . . in any
one action or special proceeding.” (Id., subd. (a)(4).)3
Rule 3.516 establishes special rules for applying section
170.6 in a Judicial Council Coordination Proceeding.4 The rule
3 Section 170.6 permits “the party who filed [an] appeal that
resulted in the reversal of a final judgment of a trial court” to
make an additional peremptory challenge, “[n]otwithstanding
paragraph [(a)](4),” “following reversal on appeal . . . if the trial
judge in the prior proceeding is assigned to conduct a new trial
on the matter.” (§ 170.6, subd. (a)(2).)
4 Section 404 et seq. authorizes the Chairperson of the
Judicial Council to coordinate separate complex civil actions
pending in different counties involving common issues of fact
or law into a coordination proceeding for pretrial and trial before
a single assigned judge. Under the authority granted in the
coordination statutes (see § 404.7), the Judicial Council has
adopted detailed rules regulating the procedures for coordination
6
consists of two sentences that modify the normal procedures
governing peremptory challenges to conform those procedures
to the unique characteristics of a coordination proceeding.
The first sentence of rule 3.516 establishes the deadline
for filing a peremptory challenge: “A party making a peremptory
challenge by motion or affidavit of prejudice regarding an
assigned judge must submit it in writing to the assigned judge
within 20 days after service of the order assigning the judge
to the coordination proceeding.” (Rule 3.516.) Because the
process for assigning a judge to a coordination proceeding “is a
complex and time consuming process, . . . the Judicial Council . . .
extended the time for filing a disqualification motion to 20 days
after service of the coordination order.” (School Dist. of Okaloosa
County v. Superior Court (1997) 58 Cal. App. 4th 1126, 1135; cf.
Sunrise Financial, LLC v. Superior Court (2019) 32 Cal. App. 5th
114, 128 (Sunrise Financial) [because case did not involve
Judicial Council assignment under section 403, and independent
calendar judge had already been assigned for all purposes,
normal 15-day deadline under section 170.6, subdivision (a)(2)
applied].)
The rule’s second sentence specifies how “a side” is
defined for purposes of applying section 170.6 in a coordination
proceeding consisting of two or more coordinated actions: “All
plaintiffs or similar parties in the included or coordinated actions
proceedings. Those rules appear at rules 3.501 through 3.550.
(See Weil & Brown, Cal. Practice Guide: Civil Procedure Before
Trial (The Rutter Group 2020) ¶¶ 12:370 to 12:375.)
7
constitute a side and all defendants or similar parties in such
actions constitute a side for purposes of applying Code of Civil
Procedure section 170.6.” (Rule 3.516, italics added.)5 Thus,
while a coordination proceeding includes multiple coordinated
actions, often brought by many plaintiffs against many
defendants, rule 3.516 specifies that all the plaintiffs and all the
defendants in those multiple actions each collectively constitute
one “side” for purposes of applying section 170.6. Apart from this
specification, there is no other explicit instruction in rule 3.516
regarding the statutory directive that there shall be “only one
motion for each side . . . in any one action or special proceeding.”
(§ 170.6, subd. (a)(4), italics added.)
Petitioners contend rule 3.516 makes an additional change
to section 170.6, but they say we must look to the definitions
in rule 3.501 to discern it. Petitioners emphasize rule 3.501(8)
defines “ ‘Coordination proceeding’ ” to mean “any procedure
authorized by [section 404 et seq.] and by the rules in this
chapter.” (Italics added.) Because the Judicial Council used
the phrase “any procedure” to define the term “ ‘Coordination
proceeding’ ” (rule 3.501(8)), Petitioners maintain the definition
must be read to mean that each “procedure” authorized under the
coordination statutes constitutes its own discreet “coordination
proceeding,” including the assignment of the coordination motion
5 Rule 3.501(5) defines “ ‘Coordinated action’ ” as “any action
that has been ordered coordinated with one or more other actions
under” section 404 et seq. Rule 3.501(8) defines “ ‘Coordination
proceeding’ ” as “any procedure authorized by [section 404 et seq.]
and by the rules in this chapter.”
8
judge (see § 404.4) and the assignment of the coordination trial
judge (see § 404.3). In other words, Petitioners argue “different
judicial assignments for different purposes are discrete
coordination proceedings within the umbrella of [a Judicial
Council Coordination Proceeding].” (Italics added.) And, because
the Judicial Council used the term “coordination proceeding”
in the first sentence of rule 3.516 to fix the deadline for filing
a peremptory challenge, Petitioners argue the rule “authorizes
peremptory challenges for each of these distinct ‘coordination
proceedings,’ ” “entitling a party to separate judicial challenges,”
“so long as the challenges are made within 20 days of the
[judicial] assignment.”
The relevant rules and statutes are not reasonably
susceptible of this interpretation.
Our Supreme Court has long recognized the one-challenge-
per-side limitation in section 170.6 is a critical safeguard to
prevent “ ‘a device intended for spare and protective use’ ” from
being “ ‘converted into a weapon of offense and . . . obstruction
to efficient judicial administration.’ ” (Solberg v. Super. Ct.
of City & Cty. of S.F. (1977) 19 Cal. 3d 182, 197–198; accord
Peracchi v. Superior Court (2003) 30 Cal. 4th 1245, 1252–1253.)
“[S]ection 170.6 is designed to prevent abuse by parties that
merely seek to delay a trial or obtain a more favorable judicial
forum. [Citations.] An important element of that design is the
limitation, in any one action, of each party to a single motion,
or each side to a single motion, should there be more than
one plaintiff or defendant. . . . This limitation also reflects
the general aim of the legislation to strike a balance between
9
the needs of litigants and the operating efficiency of the courts.
[Citation.] [¶] To effectuate the Legislature’s intent, our courts
‘have been vigilant to enforce the statutory restrictions on
the number and timing of motions permitted.’ ” (The Home
Ins. Co. v. Superior Court (2005) 34 Cal. 4th 1025, 1032–1033
(Home Ins.).)
Petitioners contend the legislative design of section 170.6
is irrelevant to a reasonable construction of rule 3.516. They
emphasize that, with the enactment of section 404.7, “the
Legislature expressly authorized the Judicial Council ‘to
formulate its own rules for judicial challenges independent of
the provisions of section 170.6.’ ” (See Industrial Indemnity Co.
v. Superior Court (1989) 214 Cal. App. 3d 259, 264 (Industrial
Indemnity).) And, as discussed, Petitioners maintain the Judicial
Council did just that—it created a new rule, displacing the one-
challenge-per-side limitation, by adopting rule 3.516 and linking
the deadline for making a peremptory challenge to the term
“coordination proceeding” as defined in rule 3.501(8). We are
not persuaded.
It is a settled rule of statutory construction, applicable to
the Rules of Court adopted by the Judicial Council, that “it is not
to be presumed that the legislature in the enactment of statutes,
or the people in the adoption of laws, intend to overturn long-
established legal principles, unless such intention is made to
clearly appear by express declaration or by necessary implication.”
(Follette v. Pacific Light & Power Corporation (1922)189 Cal. 193,
208, italics added; accord In re Guardianship of Thrasher (1951)
105 Cal. App. 2d 768, 777; see Alan, supra, 40 Cal.4th at p. 902;
10
cf. Subsequent Injuries Fund v. Industrial Acc. Com’n (1963)
59 Cal. 2d 842, 844 [“Where the amendment of a statute consists
of the deletion of an express provision, the presumption is that
a substantial change in the law was intended.”].) As we have
explained, the one-challenge-per-side limitation is an “important
element” of section 170.6’s statutory design. (Home Ins., supra,
34 Cal.4th at p. 1032.) It is essential “to prevent abuse by parties
that merely seek to delay a trial or obtain a more favorable
judicial forum,” and courts must be “ ‘vigilant to enforce’ ” it.
(Id. at pp. 1032–1033.) Because the limitation is critical to
effectuating section 170.6’s legislative purpose, we cannot
accept that the Judicial Council would have overturned it in the
circuitous and oblique way Petitioners suggest. Had the Judicial
Council intended to make such a fundamental change to the
established rules governing judicial peremptory challenges, we
must presume the Council would have done so only “by express
declaration or by necessary implication.” (Follette, at p. 208.)
There is plainly no express declaration in rule 3.516
overturning the one-challenge-per-side limitation. Nor does the
term “coordination proceeding” annul the limitation by necessary
implication. As we have discussed, on its face, the first sentence
of rule 3.516 merely establishes a deadline for filing a peremptory
challenge “within 20 days after service of the order assigning the
judge to the coordination proceeding.” (Rule 3.516.) While this
language can account for two separate orders assigning different
judges to a coordination proceeding—one for the coordination
motion judge and one for the trial judge—the language does
not necessarily imply that each side gets a separate peremptory
11
challenge for each judicial assignment. On the contrary, we
construe this language to require a side to file a peremptory
challenge within 20 days of either the assignment of the
coordination judge or the assignment of the trial judge, but we
do not read it to displace the one-challenge-per-side limitation,
which remains an “important element” of section 170.6’s
statutory design. (Home Ins., supra, 34 Cal.4th at p. 1032.)
Our construction is consistent with the normal operation
of the one-challenge-per-side limitation in civil actions generally.
Under section 170.6, litigants are permitted to choose from
multiple potential triggers for a peremptory challenge—e.g.,
assignment of the trial judge, assignment of the judge for all
purposes, or commencement of a hearing. (See § 170.6, subd.
(a)(2).) However, notwithstanding these various triggers, the
statute mandates that there shall be “only one” peremptory
challenge for each side “in any one action or special proceeding”—
not separate challenges each time a triggering event occurs. (Id.,
subd. (a)(4).)6 We presume that the Judicial Council “was aware
6 As the trial court observed, “[i]t is commonplace that in
a master-calendar docket management system any number of
jurists may make rulings during the life of a case on matters such
as demurrers, discovery motions, requests for interim injunctive
relief, potentially dispositive motions, and trials. A party may,
if he, she or it wishes, use a challenge under [section] 170.6 on
the occasion of any of these events . . . but the upshot of doing so
is that the party will lack an available challenge for the balance
of the case’s life . . . but that is the lawyer’s choice.” Nothing
in rule 3.516 suggests the Judicial Council intended to treat
coordination proceedings any differently.
12
of existing related laws” when it enacted rule 3.516, and that
it “intended to maintain a consistent body of rules.” (People v.
Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 199; cf. Paterno
v. Superior Court (2004) 123 Cal. App. 4th 548, 555 (Paterno)
[Since rule 3.516 predecessor’s “provisions for exercising
a peremptory challenge upon initial assignment may be
harmonized with section 170.6(a)(2)’s postappeal right to
peremptory challenge, the latter is simply one of the ‘provisions
of law applicable to civil actions generally,’ which still retains
vitality in coordination proceedings.”].)
Petitioners principally rely upon Stone v. Superior Court
(1994) 25 Cal. App. 4th 1144 (Stone). The case supports our
construction of rule 3.516. In Stone, the plaintiff elected not to
challenge the coordination motion judge, who later coordinated
the plaintiff’s action with other factually related cases. (Stone,
at p. 1146.) When the same judge was appointed to be the
coordination trial judge, the plaintiff filed a peremptory challenge
within 20 days of receiving the appointment order. (Ibid.)
The judge denied the challenge on the ground it was untimely,
reasoning that rule 3.516 “require[ed] any peremptory challenge
to be filed within twenty days of his first assignment” because
that was when he became an “ ‘assigned judge’ ” under the rule.
(Stone, at p. 1147, italics added.)7 The reviewing court disagreed.
7 Stone was decided under a substantively identical
predecessor to rule 3.516. (See Stone, supra, 25 Cal.App.4th
at p. 1146 [quoting former rule 1515].)
13
The Stone court reasoned that requiring a party to file
a peremptory challenge within 20 days of the “first” judicial
assignment would not sufficiently protect a party’s rights under
section 170.6, because a party could not reasonably be expected
“to predict whether the judge assigned as the coordination motion
judge will also be assigned as the coordination trial judge.”
(Stone, supra, 25 Cal.App.4th at p. 1147.) The court explained,
“the statutory scheme for coordination and the rules of court
implementing that scheme provide for two separate assignments”
and “contemplate the possibility these two assignments will be
of two different judges.” (Ibid.) In view of this possibility, the
Stone court concluded “the term ‘assigned judge’ ” in rule 3.156
“must be read as the judge assigned for the particular purpose,
i.e., either to determine whether coordination is appropriate or
to hear and determine the coordinated actions.” (Stone, at
p. 1147.) Under that construction, “a party challenging the
assignment of a judge pursuant to Code of Civil Procedure
section 170.6 has 20 days after the specific assignment to file
an affidavit of prejudice.” (Ibid.)
Contrary to Petitioners’ contention, Stone neither states
nor implies that rule 3.516 authorizes more than one peremptory
challenge per side. The case merely holds the assignment of the
coordination motion judge and the assignment of the coordination
trial judge constitute separate triggers for filing a disqualification
motion within the prescribed 20-day period, and the election
not to challenge the assigned coordination motion judge does
not preclude a party from later moving to disqualify the assigned
coordination trial judge—even if the same judge happens to be
14
assigned for both purposes. (Stone, supra, 25 Cal.App.4th at
p. 1147.) That holding is consistent with the normal operation
of the one-challenge-per-side limitation, which allows a party
to reserve its peremptory challenge for a subsequent triggering
event, even when the party could have exercised its challenge
against a previously assigned judge. The holding is also
consistent with our construction: Under rule 3.516 a side
must file a peremptory challenge within 20 days of either the
assignment of the coordination motion judge or the assignment of
the coordination trial judge, but it cannot file a challenge against
both judges. (See Sunrise Financial, supra, 32 Cal.App.5th at
p. 128 [“The Stone court held a party challenging the assignment
of a complex-case coordination judge (§ 404) pursuant to section
170.6 must file the challenge within 20 days after either the
assignment of the judge ruling on the complex-case consolidation
motion or the assignment of the judge to preside over the merits
of the cases.”]; Philip Morris Inc. v. Superior Court (1999) 71
Cal. App. 4th 116, 123 [citing Stone, observing rule 3.516’s
“second sentence means that once a coordination motion judge or
a coordination trial judge is assigned, the plaintiff and defense
sides in any included action or coordinated action, respectively,
are entitled to only one section 170.6 peremptory challenge
each”].)
Finally, as past cases have observed, the overriding
purpose of rule 3.516 “is to exclude add-on parties from the
right to peremptorily challenge the coordination trial judge.”
(Industrial Indemnity, supra, 214 Cal.App.3d at p. 263; accord
15
Paterno, supra, 123 Cal.App.4th at p. 554; see also Jane Doe 8015
v. Superior Court (2007) 148 Cal. App. 4th 489, 497–498 [“The
20-day time limit and the collective denomination of a ‘side’ in
rule 3.516 preclude a succession of challenges that would delay
the efficient resolution of coordinated actions.”].) As the trial
court observed in denying Petitioners’ disqualification motion,
it is “counter-intuitive” to read a rule that explicitly narrows
an add-on party’s right to bring a peremptory challenge to
nonetheless expand the number of peremptory challenges
available in a coordination proceeding.8 The trial court
properly denied Petitioners’ second disqualification motion.
8 Notwithstanding our construction of rule 3.516, Petitioners
contend we should nevertheless reverse the trial court’s order
because they “reasonabl[y] reli[ed]” on a handful of secondary
sources suggesting peremptory challenges are available at
both the coordination motion stage and coordination trial stage
of a coordination proceeding. The argument has no merit.
Retrospective application of a statutory interpretation is
appropriate where, as here, the interpretation does not involve
“ ‘unforeseeable judicial expansion of the statutory language.’ ”
(County of San Diego v. State Bd. of Control (1984) 161
Cal. App. 3d 868, 870.) Even a party’s reliance on the decision
of an “inferior” appellate court is no “basis to depart from the
assumption of retrospective operation.” (Pineda v. Williams-
Sonoma Stores, Inc. (2011) 51 Cal. 4th 524, 536 [retrospective
operation of Supreme Court’s statutory interpretation did not
violate due process, even though defendant had relied upon
appellate court interpretation, for which review had been denied,
in establishing corporate policy].) Petitioners’ reliance upon a
handful of secondary sources is even less reason to depart from
the usual rule of retrospective operation. (See Earl W. Schott,
Inc. v. Kalar (1993) 20 Cal. App. 4th 943, 946, fn.4 [“Secondary
16
DISPOSITION
The writ is denied. Real Parties are entitled to their costs.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
authority can never be mandatory authority; it can only be
persuasive.”].)
17