Bambula

Petitioners seek a writ of mandate to compel the assigned trial judge to refrain from presiding over further proceedings in the underlying action. The dispositive issue in this proceeding is whether a trial judge’s determination of a summary judgment motion involves “contested fact issues relating to the merits” of the action within the meaning of Code of Civil Procedure section 170.6. We conclude it does not.

Petitioners’ action for fraud, negligence, breach of broker’s duties, breach of warranty and conspiracy is presently assigned to Judge Martin H. Ryan. Petitioners moved for peremptory disqualification of Judge Ryan pursuant to the provisions of Code of Civil Procedure section 170.6. Judge Ryan denied the motion on the ground it was “untimely filed.” Petitioners filed a motion for reconsideration, which was denied by Judge Ryan on the ground that he had “heard and determined contested issues of fact preceding the filing of the motion, ...”

After petitioner filed the instant petition, we notified all parties that the court was considering issuing a peremptory writ in the first instance and invited opposition. No opposition has been received. We shall issue a…