Frisk

This writ proceeding involves a defendant with as brief a lifespan in the underlying action as an adult mayfly. During its short presence in the lawsuit, the defendant filed a peremptory challenge to the assigned judge under Code of Civil Procedure section 170.6. 1 The defendant was-dismissed from the lawsuit, however, before the trial court accepted the peremptory challenge. As a result, the court deemed the peremptory challenge moot because it was not made by a “party” to the action.

Does a peremptory challenge not yet reviewed and accepted by the court survive the dismissal of the litigant filing it? Petitioner, a codefendant, who did not file his own peremptory challenge, contends it does. According to the petitioner-codefendant, the peremptory challenge became immutable and irrevocable at the moment it was made, instantly requiring the removal of the assigned judge.

*406 Peremptory challenges may be unassailable as to the substantive claim of bias, but they still require immediate judicial review for timeliness and proper form. As both our Supreme Court and Legislature have made clear, peremptory challenges may be lost by direct or indirect waiver. Here, the court…