Schneider National v. Ellis CA4/3

DISCUSSION

This appeal is moot because it seeks a determination barred by principles of res judicata. In the prior appeal, Ellis contested the trial court’s ruling his peremptory challenge was invalid because untimely filed. Division Two of this court dismissed the appeal from that ruling on jurisdictional grounds, stating such an order is nonappealable and can only be challenged by timely petition for a writ of mandate. (§ 170.3, subd. (d).) Consequently, Ellis’s failure to seek writ review within the statutory period left the order

3 intact and unassailable. As a final determination of the issue on the merits, it is binding on the parties in all subsequent proceedings. (See People v. Barragan (2004) 32 Cal. 4th 236, 252.) It is also worth noting this court’s opinion in the prior appeal confirmed the trial court’s jurisdiction to preside over the case. In other words, this court has implicitly rejected the premise of the instant appeal: that all orders and default judgments issued by the trial court are void because issued after a timely peremptory challenge. Consequently, Ellis cannot possibly prevail in the instant appeal premised on the validity of the peremptory challenge…