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Court of Appeal:
Peremptory Challenge to Judge Who Ruled in Case Allowed
Opinion Says Determination of Reasonable Cause to Bring Child Sexual Assault Case Is Not Ruling on Merits
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has directed that a superior court accept a defendant’s peremptory challenge to a judge who made a determination that there was reasonable cause for filing an action alleging a childhood sexual assault 39 years earlier, holding that the ruling was not a ruling on contested fact issues relating to the merits.
Justice Jose S. Castillo authored the opinion, filed Tuesday. It grants the San Diego Unified School District’s petition for a peremptory writ of mandate directing that the San Diego Superior Court honor a challenge to Judge Katherine Bacal and reassign the case to a different judge.
Acting Presiding Justice Willian Dato and Justice Martin N. Buchanan joined in the opinion.
Pretrial Ruling
The school district had been sued by 51-year-old “John Doe D.Y.” for an alleged childhood sexual abuse that occurred at an elementary school when the plaintiff was 12. The plaintiff sued under Code of Civil Procedure §340.1 which provides for an extension of the statute of limitations in cases of childhood sexual assault.
Under that section, a plaintiff who is 40 years of age or older at the time of filing such a case must file a certificate of merit as to each defendant and may not name or serve any defendant until the court determines “based solely on those certificates of merit, that there is a reasonable and meritorious cause for the filing of the action against that defendant.”
The plaintiff’s complaint, filed in November 2022, originally named the defendants as “Doe 1, a public entity,” “Doe 2, an individual” and “Does 3-60” as required by §340.1.
Last October, Bacal directed entry of an order on the ex parte application to serve and name defendants under the section, and the plaintiff filed an amendment to his complaint in November 2023 to name Doe 1 as the school district. On Jan. 3, 2024, the district filed a peremptory challenge to Bacal under Code of Civil Procedure §170.6.
Section 170.6(a)(2) provides that a party seeking a new judge must assert the challenge within 15 days of the party’s first appearance and that the challenge is permissible even if a judge has presided over pretrial matters “not involving a determination of contested fact issues relating to the merits.”
Bacal denied the challenge as “untimely,” providing no further explanation. The district filed the petition for writ of mandate, arguing that it timely filed its challenge within 15 days of its first appearance as required by §170.6.
Neither the plaintiff nor the trial court filed a response, but the district filed a supplemental brief, arguing that the review of a §340.1 certificate is not a “determination of contested fact issues relating to the merits” for purposes of precluding a challenge under §170.6.
Clean Slate
Castillo wrote:
“The issue of first impression in this proceeding is whether a ruling that a plaintiff may serve and name a defendant in a complaint filed under section 340.1 is a ‘determination of contested fact issues relating to the merits’ under section 170.6(a)(2). We conclude it is not.”
The jurist explained that, pursuant to §340.1, “[t]he certificate of corroborative fact required to identify the defendant by name must include an attorney declaration setting forth ‘in clear and concise terms the nature and substance of’ ‘one or more facts corroborative of one or more of the charging allegations against a defendant or defendants.’ ”
A declaration from a mental health practitioner who has interviewed the plaintiff and concluded that there is a reasonable basis to believe that the plaintiff suffered childhood sexual abuse is also required.
Castillo pointed out that “the court must review the certificate of corroborative fact in camera and, ‘based solely on the certificate and any reasonable inferences to be drawn from the certificate,’ find that ‘one or more facts corroborative of one or more of the charging allegations against a defendant has been shown.’”
Narrow Construction
The jurist explained that “[c]ourts have narrowly construed” what constitutes “a determination of contested fact issues relating to the merits” under §170.6, limiting it to decisions actually on the merits of the case.
He wrote:
“Courts have held the limitation does not apply to rulings on demurrers, motions for judgment on the pleadings, motions for summary judgment, requests for temporary restraining orders, motions for continuance, motions to amend an information, motions to quash for lack of personal jurisdiction, requests for protective orders, or motions to set aside an information in a criminal case for lack of probable cause….”
Castillo noted that the purpose of the certificate of merit is to “impose a pleading hurdle” to prevent frivolous claims and remarked:
“Thus, a ruling under section 340.1 that a case may proceed against a defendant and that the defendant may be named is similar to a finding of probable cause in a criminal prosecution. While there must be ‘reasonable and meritorious cause’ to proceed and corroboration of facts, there is no determination of the merits of the case or resolution of conflicting factual contentions.”
He continued:
“A defendant has no opportunity to oppose the certificate of merit or certificate of corroborative fact and even raise conflicting facts, making review under section 340.1 comparable to a demurrer or the ex parte consideration of a request for a temporary restraining order based on the likelihood of success on the merits. We conclude this limited review, which does not involve any determination of conflicting facts, does not preclude a subsequent section 170.6 peremptory challenge.”
Dicta Rejected
Castillo acknowledged that in the 1978 decision in Pacific and Southwest Annual Conference of the United Methodist Church v. Superior Court “this court stated in dicta that a section 170.6 motion is barred once a judge participates in a preliminary injunction hearing,” reasoning that such hearing involved an assessment of the likelihood of prevailing at trial, which requires an assessment of contested fact issues relating to the merits.
Rejecting the contention that the case forecloses the peremptory challenge in the present case, he pointed to the 1987 Second District case of Landmark Holding Group, Inc. v. Superior Court in which the court concluded that an ex parte hearing concerning a temporary restraining order did not involve the determination of a contested fact issue so as to bar an otherwise timely exercise of a peremptory challenge.
Rejecting the reasoning in United Methodist Church, Castillo opined:
“[A] decision to grant or deny a temporary restraining order does not involve a merits determination on contested fact issues so as to preclude the exercise of a section 170.6 challenge, despite the fact that the court applies a similar ‘likelihood that the plaintiff will prevail on the merits’ standard….This is particularly true where the restraining order is addressed in an ex parte proceeding.”
The case is San Diego Unified School District v. Superior Court of San Diego County (John Doe D.Y.), D083441.
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