Opinion

Orion Communications, Inc., TEGSCO, LLC, doing business as San Francisco AutoReturn, and the City of San Diego (together Orion) filed a petition for writ of mandamus challenging an order granting a Code of Civil Procedure 1 section 170.6 peremptory challenge filed by Saméis Holdings, LLC (Saméis), after Orion filed a motion to add Saméis as a judgment debtor along with the original judgment debtor, Dispatch & Tracking Solutions, LLC (DTS). Orion contends the trial court erred by granting the section 170.6 peremptory challenge because Saméis is not a party to the action within the meaning of section 170.6. Orion alternatively contends that because DTS previously filed a section 170.6 peremptory challenge and there is insufficient evidence to support a finding that the interests of DTS and Saméis are substantially adverse, the one challenge per side rule applies to bar a subsequent section 170.6 peremptory challenge by Saméis. Because we agree with Orion’s second contention, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND 2

In 2009, Authorized City Towing and other plaintiffs (together ACT) filed a first amended complaint against the City of San Diego (City), TEGSCO, LLC, doing business as San Francisco AutoReturn (AutoReturn), DTS and *156 other defendants, apparently arising out of City’s 2008, decision to terminate its contract with ACT for a computer-based system for managing the towing of vehicles, and instead award the contract to AutoReturn.

In 2011, DTS filed a first amended cross-complaint against Orion, and other cross-defendants alleging causes of action for misappropriation of trade secrets. In January 2012, DTS filed a section 170.6 peremptory challenge to San Diego County Superior Court Judge Gonzalo Curiel. The challenge was granted and the case was reassigned to San Diego County Superior Court Judge Timothy Taylor. Thereafter, the trial court (Judge Taylor) granted Orion’s motions for summary judgment on DTS’s cross-complaint. The court also awarded Orion Communications, Inc., attorney fees of $120,000 and City and AutoReturn attorney fees of $450,000 pursuant to Civil Code section 3426.4. On February 28, 2013, the trial court entered an amended judgment reflecting its summary judgment and awards of attorney fees against DTS.

Apparently after unsuccessful efforts to enforce the judgment against DTS, Orion filed a motion to amend the judgment to add Saméis as a judgment debtor. Orion argued Saméis was the alter ego of DTS and was liable as the successor to DTS’s business. Saméis filed its opposition to the motion.

On or about November 1, 2013, Saméis filed a section 170.6 peremptory challenge to Judge Taylor, asserting it was a proposed party in the action under the motion to amend and stating its belief a fair and impartial trial or hearing could not be had before him. Orion filed its opposition to the peremptory challenge, asserting Saméis was not a party to the action and therefore could not make a challenge under section 170.6. Orion alternatively asserted that even were Saméis a party to the action, Saméis was on the same side as DTS and, because DTS had already exercised its side’s only section 170.6 peremptory challenge, there was no remaining peremptory challenge available.

On November 6, 2013, the trial court issued the instant order (Order) granting Saméis’s section 170.6 peremptory challenge. The court stated: “There is much to recommend the position taken by Orion in this matter. . . . [S]ection 170.6 challenges appear to be limited to parties to the action.” However, citing our failure to immediately deny a writ petition in another case involving a similar peremptory challenge (Geraci v. Superior Court (Nov. 7, 2013, D064812), petn. den.), the trial court apparently concluded Saméis may be considered a party under section 170.6 and granted the peremptory challenge. In so doing, the court did not expressly address Orion’s alternative assertion that Saméis was on the same side as DTS and therefore there was no peremptory challenge left for its side to make.

*157 Orion filed the instant petition for writ of mandamus, challenging the Order. It also filed a motion requesting that we take judicial notice of (1) our summary denial of the writ petition in Geraci v. Superior Court, supra, D064812 on November 7, 2013, and (2) papers filed in a pending action between Saméis and Orion in the Texas courts. 3 Saméis filed a preliminary opposition to the petition. We issued an order to show cause why the relief requested in the petition should not be granted. Because Saméis did not timely file an objection, we consider its preliminary opposition to be its return to the order to show cause.

DISCUSSION

I

Section 170.6 Peremptory Challenges Generally

“[Sjection 170.6 permits a party to an action or proceeding to disqualify a judge for prejudice based on a sworn statement, without having to establish the prejudice as a fact to the satisfaction of a judicial body. [Citation.] If a peremptory challenge motion in proper form is timely filed under section 170.6, the court must accept it without further inquiry.” (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59 [ 116 Cal.Rptr.2d 616 ].)

“The right to exercise a so-called peremptory challenge against a judge is a creation of statute—it did not exist in the common law predating enactment of section 170.6.” (The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1031 [ 22 Cal.Rptr.3d 885 , 103 P.3d 283 ] (Home Ins.).) Section 170.6 provides:

“[S]ection 170.6 is designed to prevent abuse by parties that merely seek to delay a trial or obtain a more favorable judicial forum. [Citations.] An important element of that design is the limitation, in any one action, of each party to a single motion, or each side to a single motion, should there be more than one plaintiff or defendant. (§ 170.6, subd. [(a)(4)].) The phrase ‘only one motion for each side’ contemplates that one side may consist of several parties, and a peremptory challenge by any party disqualifies the judge on behalf of all parties on that side. [Citation.] This limitation also reflects the general aim of the legislation to strike a balance between the needs of litigants and the operating efficiency of the courts. [Citation.] [][] To effectuate the Legislature’s intent, our courts ‘have been vigilant to enforce the statutory restrictions on the number and timing of motions permitted.’ ” (Home Ins., supra, 34 Cal.4th at pp. 1032-1033.) To effectuate that intent, our courts have held, “when a party on the same side has exercised its right to disqualify a judge, a late-appearing party ‘has no right to challenge the then-current judge[,] because that' side has used its one challenge.’ ” (Id. at p. 1033.)

*159 Nevertheless, in certain circumstances, section 170.6 permits the exercise of a peremptory challenge by more than one plaintiff or defendant. (Home Ins., supra, 34 Cal.4th at pp. 1033-1034.) In Johnson v. Superior Court (1958) 50 Cal.2d 693, 700 [ 329 P.2d 5 ], the court interpreted section 170.6’s one challenge per side limitation and concluded a party may be considered to be on a different side than other parties with which it is joined when the joined parties have interests that are “substantially adverse.” In Pappa v. Superior Court (1960) 54 Cal.2d 350, 354 [ 5 Cal.Rptr. 703 , 353 P.2d 311 ], the court concluded that after one codefendant disqualified the judge pursuant to section 170.6, the burden was on the party (i.e., the other codefendant) seeking to exercise a subsequent peremptory challenge to establish that her interests were substantially adverse to those of the first codefendant. “Subsequent civil and criminal decisions . . . uniformly have recognized that the party seeking a subsequent disqualification of the trial judge has the burden of demonstrating that its interests are substantially adverse to those of a coparty that previously exercised a peremptory challenge—substantially adverse interests are not presumed.” (Home Ins., supra, 34 Cal.4th at p. 1035 .)

The question whether joined parties (e.g., codefendants) are on the same side within the meaning of section 170.6 is a factual one. (Home Ins., supra, 34 Cal.4th at p. 1036 .) “[A] party that seeks to exercise a subsequent peremptory challenge on the ground that, in effect, it is on a different side from another party despite appearances to the contrary, is required to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse.” (Id. at p. 1037, italics added.) “[T]he circumstance that the plaintiff belatedly names a party as a defendant [does not] establish that that party’s interests are substantially adverse to earlier named defendants.” (Ibid.) In Home Ins., the court concluded: “The mere likelihood of, or potential for, a conflict between the [joined parties] did not and could not establish, in lieu of a factually sufficient demonstration of substantially adverse interests, that these coparties were on different sides within the meaning of section 170.6.” (Ibid.)

II

Insufficient Evidence to Show Saméis and DTS Are Not on the Same Side

Orion contends the trial court erred by granting Saméis’s section 170.6 peremptory challenge because Saméis did not present sufficient evidence showing it is not on the same side as DTS for purposes of section 170.6’s one challenge per side limitation.

*160 A

On the first page of Saméis’s section 170.6 peremptory challenge, its attorney, Jeffrey W. Broker, declared under penalty of perjury that Judge Taylor was prejudiced against Saméis, or its attorney, Or the interests of Saméis or its attorney, such that Saméis believes a fair and impartial trial or hearing could not be had before Judge Taylor. The second and third pages of its section 170.6 peremptory challenge were not part of Broker’s declaration under the penalty of perjury, but instead consisted, in effect, of Broker’s arguments regarding why Saméis should be able to make a section 170.6 challenge. Broker argued that;

Orion opposed Saméis’s section 170.6 peremptory challenge, arguing Saméis was not a party to the action and therefore could not make a challenge under section 170.6. Orion noted that Saméis admitted in its challenge that “Saméis has never been a party to this action.” Orion alternatively argued that even were Saméis a party to the action, it was on the same side as DTS in the action. On January 25, 2012, DTS exercised its side’s only section 170.6 peremptory challenge when it challenged Judge Curiel. Therefore, there was no remaining peremptory challenge for Saméis to make. Orion argued Saméis had not met its burden to show that it and DTS have substantially adverse interests and therefore are not on the same side. On the contrary, as Orion argued, the interests of Saméis and DTS are closely aligned.

The trial court issued the Order granting Saméis’s section 170.6 peremptory challenge. However, in so doing, the court relied on Saméis’s apparent status as a party to the action and did not expressly address Orion’s alternative assertion that Saméis was on the same side as DTS and therefore there was no peremptory challenge left for its side to make.

*162 B

Based on our review of the record, we conclude, as Orion asserts, the trial court erred by granting Sameis’s section 170.6 peremptory challenge because Saméis did not present sufficient evidence showing it is not on the same side as DTS for purposes of section 170.6’s one challenge per side limitation. In filing a section 170.6 peremptory challenge, Saméis, as a potential judgment debtor along with DTS, had the burden to present evidence showing it and DTS have substantially adverse interests with respect to the motion to amend the judgment in the action. (Home Ins., supra, 34 Cal.4th at p. 1037 ; People v. Escobedo (1973) 35 Cal.App.3d 32, 41 [ 110 Cal.Rptr. 550 ] [no conflict shown between two defendants regarding motion to suppress evidence].) It is a question of fact whether two joined parties are on the same side for purposes of section 170.6 or whether they have substantially adverse interests. 4 (Home Ins., supra, 34 Cal.4th at p. 1036 .) Although the Order did not contain any express discussion of the issue, we conclude the trial court, by granting the peremptory challenge, implicitly found Saméis and DTS have substantially adverse interests and are not on the same side for purposes of section 170.6’s one challenge per side limitation. Because that finding was based on the undisputed facts set forth in Sameis’s peremptory challenge, we determine de novo, or independently, whether the trial court erred in so finding. 5 (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363 [ 132 Cal.Rptr.2d 130 ]; Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 493 [ 55 Cal.Rptr.3d 708 ] [independent standard of review applies because “the correctness of the disqualification order turns on the application of law to undisputed facts”].)

Our independent review of Sameis’s.evidence shows it did not meet its burden to present sufficient evidence showing it and DTS have substantially adverse interests. Our review of the record shows the only proper evidence presented by Saméis in its section 170.6 peremptory challenge is, as Orion asserts, the statements set forth in Broker’s declaration under penalty of perjury. (§ 2015.5 [regarding declarations]; Cal. Rules of Court, rule 3.1306(a) [regarding evidence allowed at law and motion hearings]; Strauch v. Eyring (1994) 30 Cal.App.4th 181, 186 [ 35 Cal.Rptr.2d 747 ] [verified pleadings generally may not be used in motion proceedings in lieu of affidavits or *163 declarations]; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222-1223 [ 87 Cal.Rptr.2d 339 ] [unsworn declarations are improper and cannot be considered].) However, that declaration states only Saméis’s belief that a fair and impartial trial or hearing cannot be held before Judge Taylor because he is prejudiced against it or its attorney or their interests. That declaration does not present any evidence on the question of whether Saméis and DTS have substantially adverse interests and therefore are not on the same side. The California Supreme Court has stated: “[A] party that seeks to exercise a subsequent peremptory challenge on the ground that, in effect, it is on a different side from another party despite appearances to the contrary, is required to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse.” (Home Ins., supra, 34 Cal.4th at p. 1037 , italics added.)

The arguments and factual assertions made in Saméis’s section 170.6 peremptory challenge appearing on the pages following Broker’s declaration (i.e., those labeled as pages 2 and 3) are not evidence, but rather merely argument on the issue. (See § 2015.5 [regarding declarations]; Cal. Rules of Court, rule 3.1306(a) [regarding evidence allowed at law and motion hearings]; cf. Strauch v. Eyring, supra, 30 Cal.App.4th at p. 186 ; In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at pp. 1222-1223 [unsworn declarations are improper and cannot be considered].) Absent any evidence on that question, we conclude Saméis did not meet its burden to present evidence showing it and DTS have substantially adverse interests and therefore are not on the same side within the meaning of section 170.6’s one challenge per side limitation. (In re Marriage of Reese & Guy, at pp. 1222-1223.)

Nevertheless, assuming arguendo that Saméis’s arguments and factual assertions appearing on pages 2 and 3 of its section 170.6 peremptory challenge, as quoted above, constitute evidence for purposes of its peremptory challenge, we conclude none of those arguments or factual assertions show Saméis and DTS have substantially adverse interests and therefore are not on the same side for purposes of section 170.6’s one challenge per side limitation. Saméis’s assertion that it did not exist when the underlying action was filed does not show it is not on the same side as DTS or that they have substantially adverse interests. The California Supreme Court stated: “[T]he circumstance that the plaintiff belatedly names a party as a defendant [does not] establish that that party’s interests are substantially adverse to earlier named defendants.” (Home Ins., supra, 34 Cal.4th at p. 1037 .) Therefore, the fact Saméis was not incorporated and therefore could not become a party or potential party by joinder or otherwise until after ACT’s action was filed does not show it and DTS have substantially adverse interests.

The fact Saméis purchased from a foreclosing bank certain assets previously owned by DTS, but not DTS’s interest in its cross-complaint in the *164 action, does not show Saméis and DTS have substantially adverse interests in relation to the action or to Orion’s motion to amend the judgment to add Saméis as a judgment debtor. DTS presumably had lost all right, title and interest in and to those assets prior to Saméis’s purchase of those assets from the foreclosing bank. Therefore, S améis’s ownership of those assets is • irrelevant to the question of whether it and DTS have substantially adverse interests in the action and in Orion’s motion to amend the judgment to add Saméis as a judgment debtor. Because DTS no longer has any interest in those assets, there can be no conflict with Saméis based on Saméis’s ownership of those assets and, in particular, regarding the motion to amend. 6

The fact “Saméis has never been a party to this litigation” does not show it and DTS have substantially adverse interests. As we discussed above, when a plaintiff belatedly names a party as a defendant, that does not show that party’s interests are substantially adverse to earlier named defendants. (Home Ins., supra, 34 Cal.4th at p. 1037 .) Likewise, the fact Saméis has not yet been named a party to the action does not show its interests are substantially adverse to DTS’s interests.

The fact Saméis and DTS have separate counsel because of conflicts of interest does not show they have substantially adverse interests in the action and motion to amend. Section 170.6, subdivision (a)(4), provides that joined parties, such as codefendants, generally will be considered to be on the same side 'for purposes of its one challenge per side limitation. Therefore, it is presumed that Saméis, a proposed party and judgment debtor, and DTS, an existing party and judgment debtor, are on the same side. It was Saméis’s burden to present evidence showing it and DTS have, in fact, substantially adverse interests in the action and motion to amend. Sameis’s conclusory assertion that it and DTS have separate counsel because of conflicts of interest is insufficient to meet that burden. Saméis did not describe the nature of the conflict of interest, much less that it involves a conflict in the specific matter at hand—i.e., the motion to amend. The California Supreme Court has stated: “[T]he mere fact that [codefendants] choose to be represented by separate counsel does not show that [a section 170.6] conflict of interests exists.” (Pappa v. Superior Court, supra, 54 Cal.2d 350, 355 .) Therefore, the fact Saméis and DTS chose to have separate counsel because of some unspecified conflict of interest does not show they have substantially adverse interests. Furthermore, the mere likelihood of, or potential for, a conflict between Saméis and DTS did not, and could not, establish they are on different sides within the meaning of section 170.6. (Home Ins., supra, 34 Cal.4th at p. 1037 .)

*165 Saméis argues the adverse claims that remain against DTS in the action do not relate to Saméis, and those claims are adverse to any position Saméis would adopt in the action. That argument is irrelevant to Orion’s motion to amend the judgment to add Saméis as a judgment debtor, the only part of the action for which there could be an existing conflict of interest under section 170.6, subdivision (a)(4). (People v. Escobedo, supra, 35 Cal.App.3d at p. 41 .) Furthermore, there is no indication Saméis will be added as a codefendant in ACT’s action against Orion, DTS and the other defendants, or that, even if it were added, that Saméis’s interests would actually be substantially adverse to DTS or the other codefendants.

Saméis also argues it and DTS have substantially adverse interests in the motion to amend because if it (Saméis) is added as a judgment debtor, DTS would benefit by potentially being relieved from paying all or part of the judgment. However, the fact that codefendants may be jointly liable for a judgment against them is insufficient to show they have substantially adverse interests for purposes of section 170.6, subdivision (a)(4). As discussed above, section 170.6, subdivision (a)(4), provides that joined parties, such as codefendants, generally will be considered to be on the same side for purposes of its one challenge per side limitation. If codefendants are presumed to be on the same x side, the fact that codefendants may ultimately become jointly liable as judgment debtors should not make any difference. The “side” of codefendants bears the same or similar risk of becoming liable for all or part of a judgment. Therefore, the fact Saméis may be made a judgment debtor along with DTS does not show, by itself, they have substantially adverse interests.

Finally, Saméis argues it “already has affirmative claims against DTS should it [choose] to pursue those claims.” However, Saméis does not describe the nature of those claims against DTS. Absent any description of those claims, Saméis has not carried its burden to present evidence showing it and DTS have substantially adverse interests in the action and the motion to amend. Nevertheless, to the extent Saméis’s argument is that it has, or will have, affirmative claims against DTS should Saméis be made a judgment debtor, those claims are insufficient to show they have substantially adverse interests in the action or motion to amend.

We conclude Saméis has not carried its burden to present sufficient evidence showing it and DTS have substantially adverse interests and therefore are not on the same side within the meaning of section 170.6, subdivision (a)(4). Because Saméis has not carried its burden, section 170.6, subdivision (a)(4)’s limitation applies to Saméis and DTS. As members of the same side, they have only one section 170.6 peremptory challenge to exercise. In January 2012, DTS filed a section 170.6 peremptory challenge to Judge *166 Curiel. That peremptory challenge exhausted its side’s sole peremptory challenge. Because Saméis could not thereafter exercise a subsequent section 170.6 peremptory challenge, the trial court (Judge Taylor) erred by granting its peremptory challenge in November 2013.

Ill

Because we dispose of this petition based on the above ground, we need not, and do not, address Orion’s alternative contention that the trial court also erred by concluding Saméis is a party to the action within the meaning of section 170.6.

DISPOSITION

Let a writ issue directing the trial court to vacate its order of November 6, 2013, granting the peremptory challenge and issue a new order denying that challenge. Petitioners shall recover their costs in the writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).) This opinion shall be final as to this court on May 27, 2014. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

Nares, Acting P. J., and Aaron, J., concurred.

All statutory references are to the Code of Civil Procedure unless otherwise specified.

Because the factual and procedural background of the main civil action is not material to our disposition of the instant petition, we provide only a brief summary of the facts and procedural events in the action.

We grant Orion’s request that we take judicial notice of the Geraci order and deny its request to take judicial notice of papers filed in the Texas proceeding. (Evid. Code, §§451, subd. (a), 452, subd, (c), 459, subd. (a).) Except for the Geraci order, we have restricted our review of the exhibits submitted by both parties to those exhibits presented to and considered by the trial court in deciding Saméis’s peremptory challenge. In so doing, we have disregarded all other exhibits in deciding the merits of this case and therefore decline to take the additional action of striking certain exhibits from the record. (People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173-1174, fn. 5 [ 17 Cal.Rptr.2d 815 , 847 P.2d 1031 ]; People v. Zamora (1980) 28 Cal.3d 88, 96 [ 167 Cal.Rptr. 573 , 615 P.2d 1361 ].)

For purposes of this opinion, we assume arguendo, but do not decide, that Saméis is considered a party to the action within the meaning of section 170.6.

Although there are cases that pronounce the abuse of discretion standard of review applies to a court's grant or denial of a section 170.6 peremptory challenge, we' believe, in the circumstances of this case, the trial court did not have any discretion to exercise in determining whether Saméis presented sufficient evidence to show it and DTS have substantially adverse interests and therefore are not on the same side within the meaning of section 170.6. (See, e.g., Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315 [ 104 Cal.Rptr.2d 173 ]; Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098 [ 46 Cal.Rptr.3d 798 ].)

Likewise, the fact DTS retained its cross-claims against other codefendants in the action and Saméis has no interest in those cross-claims does not show they have substantially adverse interests in the action or-the motion to amend.