Not Up to the Challenge

A peremptory challenge to a judge is not effective until it is accepted by the court, and the dismissal of the party making the challenge before the court can act renders the challenge moot, said the Fourth District Court of Appeal in Frisk v. Superior Court (Oct. 28, 2011, G045591), __ Cal.App.4th __ [2011 DJDAR 15894].

Plaintiff Northwest Surgical Development Company, Inc., sued defendant Frisk, alleging that he diverted more that $650,000 from the company for his personal benefit and the benefit of co-defendant Avanti Skin Co.  The case was assigned for all purposes to Judge Horn, who considered and granted a temporary restraining order against Frisk.  Frisk was served with the complaint and he vigorously opposed a preliminary injunction.  Pending the continued hearing on the injunction application, plaintiff served Avanti Skin, which promptly filed a challenge against Judge Horn pursuant to C.C.P. §170.6.

Three days later, plaintiff dismissed the causes of action against Avanti Skin.  Four days after that, the peremptory challenge came on for hearing before Judge Perk, who declined to accept the challenge because Avanti Skin was no longer a party to the action.  Frisk objected to Judge Horn's subsequent refusal to recuse himself and filed a petition for writ of mandate.

The court of appeal denied the petition, finding that the challenge was not duly and properly made by a party. Acknowledging that there is authority for the proposition that a peremptory challenge takes effect immediately upon filing, the appellate court concluded that this authority has been trumped by subsequent cases holding that a challenge is not effective until it is accepted by the court and the case is assigned to another judge.  Since Avanti Skin was not a party to the action when the motion to disqualify came before Judge Perk, it could not assert that it believed it could not receive a fair trial, and the motion was properly dismissed.