Frisk v. Superior Court
200 Cal. App. 4th 402
| Cal. Ct. App. | 2011Background
- Avanti Skin Co. filed a July 19, 2011 peremptory challenge to Judge Horn after Northwest served Avanti with the complaint.
- Northwest dismissed Avanti from the action on July 22, 2011, before the court ruled on the challenge.
- Judge Perk considered the timeliness and sufficiency of Avanti’s challenge on July 26, 2011 and did not accept it because Avanti was no longer a party.
- Frisk, the petitioner, sought writ relief challenging the court’s handling of the peremptory challenge and the denial of disqualification.
- The court declined to follow Louisiana-Pacific, holding peremptory challenges take effect when duly presented and accepted, and can be lost by waiver or abandonment.
- The court ultimately denied the petition for writ of mandate, affirming that Avanti’s challenge was moot and that Louisiana-Pacific is superseded by Hull, Truck, and Andrisani.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do peremptory challenges survive a party's dismissal? | Frisk argues the challenge is immutable once filed. | Avanti argues the challenge is moot since it was dismissed before acceptance. | Moot; challenge not preserved after dismissal. |
| Is Louisiana-Pacific still good law after Hull/Truck/Andrisani? | Frisk relies on Louisiana-Pacific as controlling. | Avanti argues for the older doctrinal rule. | Overruled; Louisiana-Pacific is superseded by later authority. |
| When does a peremptory challenge take effect? | The challenge should affect the judge once filed. | Effect occurs only when the court accepts the challenge and transfers to a different judge. | Takes effect upon court acceptance and reassignment. |
Key Cases Cited
- Hull, 1 Cal.4th 266 (Cal. 1992) (peremptory challenge reviewable by writ; timing and acceptance are crucial)
- Truck Ins. Exchange v. Superior Court, 67 Cal.App.4th 142 (Cal. App. 4th 1998) (peremptory challenges not self-executing; require court acceptance)
- Andrisani v. Saugus Colony Limited, 8 Cal.App.4th 517 (Cal. App. 4th 1992) (waiver when party does not raise issue timely)
- Stebbins v. White, 190 Cal.App.3d 769 (Cal. App. 3d 1987) (waiver/abandonment of peremptory challenges)
- Home Ins. Co. v. Superior Court, 34 Cal.4th 102 (Cal. 2004) (peremptory challenge review and timing; balance of efficiency)
- Bay Development, Ltd. v. Superior Court, 50 Cal.3d 1012 (Cal. 1990) (finality rules and publication considerations in writ decisions)
- Guedalia v. Superior Court, 211 Cal.App.3d 1156 (Cal. App. 1989) (law of the case in writ dispositions)