Filed 5/14/14

                             CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



ORION COMMUNICATIONS, INC., et                 D064979
al.,
                                               (San Diego County Super. Ct.
        Petitioners,                            No. 37-2009-00087082-CU-BT-CTL)

        v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent;

SAMEIS HOLDINGS, LLC,

        Real Party in Interest.



        PETITION for writ of mandamus challenging order of the Superior Court of San

Diego County, Timothy B. Taylor, Judge. Petition granted.

        Chapin Fitzgerald, Kenneth M. Fitzgerald and Jennifer Arnold for Petitioner Orion

Communications, Inc.

        Moscone Emblidge Sater & Otis, G. Scott Emblidge and Matthew K. Yan for

Petitioners City of San Diego and TEGSCO, LLC.
       No appearance for Respondent.

       Broker & Associates and Jeffrey W. Broker for Real Party in Interest.

       Orion Communications, Inc., TEGSCO, LLC, doing business as San Francisco

AutoReturn, and City of San Diego (together Orion) filed a petition for writ of mandamus

challenging an order granting a Code of Civil Procedure1 section 170.6 peremptory

challenge filed by Sameis Holdings, LLC (Sameis) after Orion filed a motion to add

Sameis 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 Sameis 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 Sameis are substantially adverse, the one challenge

per side rule applies to bar a subsequent section 170.6 peremptory challenge by Sameis.

Because we agree with Orion's second contention, we grant the petition.

                  FACTUAL AND PROCEDURAL BACKGROUND2

       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



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

2      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.

                                             2
as AutoReturn (AutoReturn), DTS and 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 Sameis as a judgment debtor. Orion argued

Sameis was the alter ego of DTS and was liable as the successor to DTS's business.

Sameis filed its opposition to the motion.

       On or about November 1, 2013, Sameis 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 Sameis was not a

party to the action and therefore could not make a challenge under section 170.6. Orion

                                             3
alternatively asserted that even were Sameis a party to the action, Sameis 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

Sameis'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 (D064812)), the trial court apparently concluded Sameis 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 Sameis was

on the same side as DTS and therefore there was no peremptory challenge left for its side

to make.

       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 Geraci writ petition in Case No. D064812 on November 7, 2013, and (2) papers filed

in a pending action between Sameis and Orion in the Texas courts.3 Sameis filed a



3       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 Sameis'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.
                                              4
preliminary opposition to the petition. We issued an order to show cause why the relief

requested in the petition should not be granted. Because Sameis 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

         "[S]ection 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 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.)

         "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 (Home

Ins.).) Section 170.6 provides:

            "(a)(1) A judge, court commissioner, or referee of a superior court
            of the State of California shall not try a civil or criminal action or
            special proceeding of any kind or character nor hear any matter
            therein that involves a contested issue of law or fact when it is
            established as provided in this section that the judge or court
            commissioner is prejudiced against a party or attorney or the interest
            of a party or attorney appearing in the action or proceeding.

(People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173-1174, fn. 5; People v.
Zamora (1980) 28 Cal.3d 88, 96.)

                                               5
          "(2) A party to, or an attorney appearing in, an action or proceeding
          may establish this prejudice by an oral or written motion without
          prior notice supported by affidavit or declaration under penalty of
          perjury, or an oral statement under oath, that the judge, court
          commissioner, or referee before whom the action or proceeding is
          pending, or to whom it is assigned, is prejudiced against a party or
          attorney, or the interest of the party or attorney, so that the party or
          attorney cannot, or believes that he or she cannot, have a fair and
          impartial trial or hearing before the judge, court commissioner, or
          referee. . . . [¶] . . . [¶]

          "(4) If the motion is duly presented, and the affidavit or declaration
          under penalty of perjury is duly filed or an oral statement under oath
          is duly made, thereupon and without any further act or proof, the
          judge supervising the master calendar, if any, shall assign some
          other judge, court commissioner, or referee to try the cause or hear
          the matter. . . . Except as provided in this section, no party or
          attorney shall be permitted to make more than one such motion in
          any one action or special proceeding pursuant to this section. In
          actions or special proceedings where there may be more than one
          plaintiff or similar party or more than one defendant or similar party
          appearing in the action or special proceeding, only one motion for
          each side may be made in any one action or special proceeding."
          (Italics added.)

       "[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

                                              6
'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.)

       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, at page

700, 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, at page 354, 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

                                              7
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 Sameis and DTS Are Not on the Same Side

       Orion contends the trial court erred by granting Sameis's section 170.6 peremptory

challenge because Sameis 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.

                                              A

       On the first page of Sameis's section 170.6 peremptory challenge, its attorney,

Jeffrey W. Broker, declared under penalty of perjury that Judge Taylor was prejudiced

against Sameis, or its attorney, or the interests of Sameis or its attorney, such that Sameis

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

                                              8
Broker's declaration under the penalty of perjury, but instead consisted, in effect, of

Broker's arguments regarding why Sameis should be able to make a section 170.6

challenge. Broker argued that:

          "3. Sameis anticipates that it may be argued that its interests are not
          substantially adverse to those of DTS. Such an argument is incorrect
          for the following reasons: [¶] . . . [¶]

          "B. Sameis did not legally exist when this litigation was filed.
          Sameis is a bona fide purchaser for value having bought the assets of
          DTS and Compiled Logic from the foreclosing bank. Sameis has
          never owned DTS'[s] interests in the subject litigation. Sameis has
          never been a party to this litigation;

          "C. The conflicts between Sameis and DTS are substantial enough
          that Sameis must be represented by separate counsel due to conflicts
          of interest; and

          "D. DTS remains a defendant in the subject litigation under
          [Orion's] complaint. It is undisputed that those claims do not relate
          in any way to Sameis. In fact, the adverse claims that remain against
          DTS and Defendant Lawrence Estes are substantially adverse to any
          position Sameis would ever reasonably adopt in this litigation.

          "4. Sameis'[s] interests have been adverse to DTS since the date
          Sameis acquired DTS's former assets from the bank: On August 4,
          2010, Sameis purchased the assets previously owned by DTS from
          Encore Bank, National Association. A true and correct copy of the
          Bill of Sale and Transfer Statement is attached as Exhibit '1'. The
          Bill of Sale memorializes that Sameis paid $37,500 for the personal
          property assets of DTS, which assets Encore Bank had recently
          foreclosed upon, after DTS and its sole member[,] Compiled Logic,
          defaulted on loan obligations owing to Encore Bank. Exhibit A to
          the Bill of Sale (EX. 1) lists all of the categories of personal property
          formerly owned by DTS that Sameis acquired from the Bank. This
          list of assets does not include the present lawsuit. The present
          lawsuit never left DTS and DTS continues to retain the present
          lawsuit. [¶] . . . [¶]

          "6. As of the date that Sameis acquired DTS's assets, the interests of
          Sameis became substantially adverse to DTS's interests relating to

                                              9
          the present lawsuit. The parties' interests were adverse because DTS
          was a defendant in this lawsuit for conduct occurring prior to when
          Sameis acquired DTS's assets from the bank, while Sameis was not a
          party in the lawsuit. Obviously, DTS could not assign to the bank,
          nor would the bank have foreclosed upon DTS'[s] position as a
          defendant in this lawsuit. Moreover, DTS retained its interest in its
          affirmative legal claims for conduct occurring before the August 4,
          2010[,] asset purchase, while Sameis had no interest in those claims.
          On the other hand, the parties' interests were also substantially
          adverse because as of August 4, 2010, Sameis owed 100% of the
          assets formerly owned by DTS, while DTS and Compiled Logic lost
          all interest in these assets as a result of the foreclosure.

          "7. Through their recently filed motion to amend the judgment to
          include Sameis as a judgment debtor, Orion contends that DTS is
          Sameis'[s] alter ego, or that Sameis is DTS'[s] successor, such that
          Sameis should also be liable for the judgment in this matter.
          Sameis'[s] primary interest is that alter ego and/or successor liability
          not be imposed against it, because such finding(s) could make
          Sameis a judgment debtor and co-obligor in this action. By contrast,
          DTS, as sole judgment debtor, would directly benefit from a finding
          that DTS is Sameis'[s] alter ego, or that Sameis is the successor of
          DTS, because such finding(s) would potentially create an additional
          source of funds from which the judgment against DTS could be
          satisfied. As a result, DTS's and Sameis'[s] interests are in direct
          conflict. Indeed, the divergent interests present such a substantial
          conflict of interests between Sameis and DTS that they must retain
          separate counsel. It is clear that Sameis already has affirmative
          claims against DTS should it chose to pursue those claims."

      Orion opposed Sameis's section 170.6 peremptory challenge, arguing Sameis was

not a party to the action and therefore could not make a challenge under section 170.6.

Orion noted that Sameis admitted in its challenge "Sameis has never been a party to this

action." Orion alternatively argued that even were Sameis 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 Sameis to make. Orion argued Sameis had

                                            10
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

Sameis and DTS are closely aligned.

       The trial court issued the Order granting Sameis's section 170.6 peremptory

challenge. However, in so doing, the court relied on Sameis's apparent status as a party

to the action and did not expressly address Orion's alternative assertion that Sameis was

on the same side as DTS and therefore there was no peremptory challenge left for its side

to make.

                                            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 Sameis 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, Sameis, 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 [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




                                            11
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 Sameis 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; Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489,

493 [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 Sameis 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



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

5       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 Sameis 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; Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098.)

                                             12
Court, rule 3.1306(a) [regarding evidence allowed at law and motion hearings]; Strauch

v. Eyring (1994) 30 Cal.App.4th 181, 186 [verified pleadings generally may not be used

in motion proceedings in lieu of affidavits or declarations]; In re Marriage of Reese &

Guy (1999) 73 Cal.App.4th 1214, 1222-1223 [unsworn declarations are improper and

cannot be considered].) However, that declaration states only Sameis'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 Sameis 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. Co., supra, 34 Cal.4th

at p. 1037, italics added.)

       The arguments and factual assertions made in Sameis'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 Sameis did not meet its burden to present evidence showing it and DTS have

                                             13
substantially adverse interests and therefore are not on the same side within the meaning

of section 170.6's one challenge per side limitation. (Marriage of Reese & Guy, at

pp. 1222-1223.)

       Nevertheless, assuming arguendo that Sameis'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 Sameis 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. Sameis'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 Sameis 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 Sameis purchased from a foreclosing bank certain assets previously

owned by DTS, but not DTS's interest in its cross-complaint in the action, does not show

Sameis and DTS have substantially adverse interests in relation to the action or to Orion's

motion to amend the judgment to add Sameis as a judgment debtor. DTS presumably had

lost all right, title and interest in and to those assets prior to Sameis's purchase of those

assets from the foreclosing bank. Therefore, Sameis's ownership of those assets is

                                              14
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 Sameis as a judgment debtor.

Because DTS no longer has any interest in those assets, there can be no conflict with

Sameis based on Sameis's ownership of those assets and, in particular, regarding the

motion to amend.6

       The fact "Sameis 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. 1137.) Likewise, the fact Sameis has not yet been named a party to the action does not

show its interests are substantially adverse to DTS's interests.

       The fact Sameis 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 Sameis, a proposed party and

judgment debtor, and DTS, an existing party and judgment debtor, are on the same side.

It was Sameis'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


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

                                             15
assertion that it and DTS have separate counsel because of conflicts of interest is

insufficient to meet that burden. Sameis 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 Sameis 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 Sameis 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.)

       Sameis argues the adverse claims that remain against DTS in the action do not

relate to Sameis, and those claims are adverse to any position Sameis would adopt in the

action. That argument is irrelevant to Orion's motion to amend the judgment to add

Sameis 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 Sameis will be added

as a codefendant in ACT's action against Orion, DTS and the other defendants, or that,

even if it was added, that Sameis's interests would actually be substantially adverse to

DTS or the other codefendants.

       Sameis also argues it and DTS have substantially adverse interests in the motion to

amend because if it (Sameis) is added as a judgment debtor, DTS would benefit by

                                               16
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 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 Sameis may be

made a judgment debtor along with DTS does not show, by itself, they have substantially

adverse interests.

       Finally, Sameis argues it "already has affirmative claims against DTS should it

[choose] to pursue those claims." However, Sameis does not describe the nature of those

claims against DTS. Absent any description of those claims, Sameis 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 extent Sameis's argument is that it has,

or will have, affirmative claims against DTS should Sameis 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 Sameis 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 Sameis has not

                                             17
carried its burden, section 170.6, subdivision (a)(4)'s limitation applies to Sameis 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 Curiel. That peremptory challenge exhausted its side's sole peremptory

challenge. Because Sameis 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.

                                             III

       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

Sameis 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).)


                                                                           McDONALD, J.
WE CONCUR:


NARES, Acting P. J.


AARON, J.

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