222 Cal. App. 4th 262
Cal. Ct. App.2013Background
- Brewer plaintiffs obtained a $2.7–$2.8 million judgment against construction lender Point Center Financial, Inc. (PCF) after unpaid work on a condominium project.
- Brewer served notices of levy on National Financial Lending, LLC (NFL), an entity controlled/managed by PCF’s sole shareholder; NFL nonetheless transferred about $2.08 million to PCF.
- Brewer moved for a limited receivership over PCF; after a contested hearing the trial court appointed a receiver; PCF later filed bankruptcy.
- Brewer then filed a motion under Code Civ. Proc. § 701.020 seeking to hold NFL liable for failing to honor the levy; NFL moved to quash the levy service and filed a peremptory challenge under § 170.6.
- The trial court denied NFL’s § 170.6 challenge; NFL sought writ review. The Court of Appeal denied the petition and vacated the stay.
Issues
| Issue | Brewer's Argument | NFL's Argument | Held |
|---|---|---|---|
| Whether a § 701.020 motion (and a motion to quash a levy) are "special proceedings" under CCP § 23 and thus give rise to a new § 170.6 peremptory challenge | A § 701.020 motion and motion to quash are separate proceedings that permit a new § 170.6 challenge | These motions are incidents of the underlying judgment action, not independent special proceedings | The motions are incidents of the underlying action, not special proceedings; no new § 170.6 challenge arose |
| Whether the "continuation of proceedings" rule or prior factual determinations bar a late § 170.6 challenge by a party joined post-judgment | NFL argued it could exercise § 170.6 within 15 days of appearance | Brewer argued the receivership and earlier factual findings resolved the relevant issues, so NFL’s challenge was untimely | Even if treated as special proceedings, they were a continuation of the receivership/postjudgment proceedings where contested facts were already resolved, so § 170.6 challenge was barred |
Key Cases Cited
- Avelar v. Superior Court, 7 Cal.App.4th 1270 (Cal. Ct. App. 1992) (discovery motions within a pending action are incidents of that action, not separate special proceedings for § 170.6 purposes)
- Stephens v. Superior Court, 96 Cal.App.4th 54 (Cal. Ct. App. 2002) (§ 170.6 challenge unavailable after trial judge has resolved disputed factual issues; late-joining parties limited)
- The Home Ins. Co. v. Superior Court, 34 Cal.4th 1025 (Cal. 2005) ( § 170.6 is remedial and to be liberally construed but must be balanced against court efficiency and abuse prevention)
- McClenny v. Superior Court, 60 Cal.2d 677 (Cal. 1964) (contempt or related proceedings that continue prior factual issues are part of the original proceedings for § 170.6 purposes)
- Jacobs v. Superior Court, 53 Cal.2d 187 (Cal. 1959) (establishes continuation-of-proceedings doctrine restricting successive § 170.6 challenges)
- NutraGenetics, LLC v. Superior Court, 179 Cal.App.4th 243 (Cal. Ct. App. 2009) (distinguishes cases where second action is independent, permitting a later § 170.6 challenge)
- Pickett v. Superior Court, 203 Cal.App.4th 887 (Cal. Ct. App. 2012) (adopts limitation that continuation rule applies when the second proceeding is a later stage of the original action)
- Le Louis v. Superior Court, 209 Cal.App.3d 669 (Cal. Ct. App. 1989) (preliminary hearings are part of the criminal action, not separate special proceedings for § 170.6)
- Bridges v. Superior Court, 14 Cal.2d 464 (Cal. 1939) (civil contempt with imprisonment may be treated exceptionally for § 170.6, but still subject to continuation limits)