Petition for Peremptory Writ of Mandate: Restoring a Struck Judicial Challenge

Introduction

Brian King Joseph is a professional violinist who alleges the defendants fired him in retaliation for reporting a break-in at his tour hotel, and for asking the employer that controlled his room key and bag to move him to a safe room.

This petition is not about the merits of that claim. It is about the single automatic right the Legislature gave him to substitute the assigned judge, once, in his newly filed action.

The trial court struck the first and only peremptory challenge the same day it arrived. It did so on its own motion, before the opposing parties were served or heard, by treating a separately filed lawsuit as a continuation of a case that had been voluntarily dismissed.

Code of Civil Procedure section 170.6 gives each side one peremptory challenge. As a remedial statute, section 170.6 is to be liberally construed in favour of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it. Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1493.

The challenge was filed the day the refiled action was reassigned to the judge. Because review of a stricken peremptory challenge lies only by writ, under section 170.3(d), there is no other remedy.

Standard of review

Whether the continuation rule bars a peremptory challenge on undisputed facts is a question of law, reviewed independently. Pickett v. Superior Court (2012) 203 Cal.App.4th 887, 891.

The operative facts are undisputed: the demurrer ruling, the defective right-to-sue notice, the voluntary dismissal, the corrected notice, and the refiling dates. Only the legal characterisation of the refiled action is contested, and no deference is owed to that characterisation.

The result is the same under any standard. An inference of evasion drawn from the timing of the dismissal and refiling alone, contradicted by an uncontroverted record establishing an independent and legitimate reason for the refiling, is not supported by substantial evidence.

This is a separate, independent action, not a continuation

A challenge filed within 15 days after notice of an all-purpose assignment is timely. Section 170.6(a)(2); Cybermedia, Inc. v. Superior Court (1999) 72 Cal.App.4th 910, 913.

The only limit on that rule is the continuation rule, and it does not reach this case. The continuation rule bars a challenge only where the second proceeding is a later stage of the first, or arises out of an order made in it: a post-judgment or supplementary proceeding.

Here the first case was voluntarily dismissed, no judgment or order ever issued, and the new complaint adds six causes of action on a new administrative right-to-sue, several of them resting on facts that surfaced after the demurrer.

The narrow exception the court relied on is not met

A narrow exception can bar a challenge in a refiled case even where it is not a later stage of the first action and arises out of no order made in it. That exception is the one the trial court invoked.

It applies only where a refiling is virtually identical to the first case and its sole rationale is to evade the judge's evidentiary rulings. Neither is true here.

The dismissal and refiling were not gamesmanship. They responded to a serious exhaustion problem that surfaced after the demurrer: the original right-to-sue notice named only the individual defendant, not the corporate employer, so the claims against the corporate employer were unexhausted and, if challenged, subject to dismissal.

Whether that defect could be cured by amendment was uncertain. With the limitations period still open, the prudent course was to refile on a corrected notice rather than risk losing the corporate claims, and the new claims could not be comfortably added within the scope of the demurrer's leave.

The court inferred forum shopping from timing alone. This record forecloses that inference.

A demurrer is no bar

Even if the refiled action were treated as a continuation, the demurrer does not stand in the way. The only ruling below was a demurrer, which section 170.6(a)(2) expressly preserves.

The challenge was struck without any opportunity to be heard

The challenge was unused, and it was struck on the court's own motion the same day it was filed, before the opposing parties had been served or heard.

Relief requested

The petition asks the Court of Appeal to:

1. Immediately stay all proceedings in the trial court case pending resolution. 2. Issue a peremptory writ of mandate in the first instance, or alternatively an alternative writ or order to show cause, directing the trial court to vacate its 25 June 2026 order and to honour the section 170.6 challenge by reassigning the case to a different judge. 3. Award costs. 4. Grant such other relief as is just.

California Rules of Court, rule 8.490.

Why it matters

Section 170.6 gave one automatic challenge in this separate action. It was used once, properly, and on time. Unless the writ issues, a case filed anew must be tried before the very judge the Legislature entitled the petitioner to disqualify, which is the precise injury the statute's automatic, no-inquiry design exists to prevent.