Landmark Holding Group, Inc. v. Superior Court

Petitioner is requesting relief from the denial of a peremptory challenge pursuant to Code of Civil Procedure section 170.6, which denial was based on a finding that the challenge was untimely filed after an ex parte proceeding concerning a temporary restraining order (TRO). Because no determination of a contested factual issue is made during the ex parte proceeding, we conclude the motion to disqualify was timely filed.

Discussion

I. No Bar to a Motion to Disqualify Absent Determination of a Contested Issue of Fact

Section 170.6, subdivision (2) provides: “The fact that a judge, court commissioner, or referee has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion____” (Italics added.) The purpose of the statute is clearly to preserve the right of a party to disqualify a judge, notwithstanding the fact that the judge has heard an earlier matter not involving contested issues of fact. (Bambula v. Superior Court (1985) 174 Cal.App.3d 653, 656-657 [ 220 Cal.Rptr. 223 ]). A…