Stanford Law School - Robert Crown Law Library

Filed 1/13/05

IN THE SUPREME COURT OF CALIFORNIA

THE HOME INSURANCE COMPANY,
Petitioner,
S110328
v.
Ct.App. 2/1, No. B157650
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;

Los Angeles County
MONTROSE CHEMICAL
Super. Ct. No. BC005158
CORPORATION OF CALIFORNIA,
)

Real Party in Interest.

After federal and state authorities brought several actions against real party
in interest Montrose Chemical Corporation of California (Montrose Chemical)
seeking recovery for environmental damage allegedly caused by its operations at
several sites, Montrose Chemical filed a lawsuit seeking declaratory relief against
its primary insurance carriers to establish their duties to defend or indemnify
pursuant to the operative commercial general liability policies. One of the
defendant primary insurance carriers invoked Code of Civil Procedure section
170.6, permitting the exercise of one challenge against the assigned trial judge by
each “side” in the litigation, and the case was reassigned to a new trial judge.1

1
All further statutory references are to the Code of Civil Procedure.
1

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Eventually, the parties entered into settlement agreements, and the primary
insurance carrier defendants were dismissed from the action.
Montrose Chemical amended its complaint to name as a defendant its
“excess” insurance carrier, The Home Insurance Company (Home Insurance),
which also invoked section 170.6 in attempting to exercise a challenge against the
trial judge. After objection by Montrose Chemical to this attempted challenge, the
trial judge ordered it stricken on the ground that the interests of Home Insurance
were aligned with those of the primary insurers, and that therefore Home
Insurance must be regarded as on the “same side” in the litigation as the party that
previously had exercised the sole challenge available to that side under the statute.
In subsequently granting a petition of Home Insurance for a writ of mandate,
however, the Court of Appeal determined that “more often than not” primary and
excess insurance carriers have “substantially adverse interests” requiring that they
be regarded as on different “sides,” and that therefore Home Insurance was
entitled to exercise a separate challenge.
We granted review to decide whether, in a single action brought by the
insured against both its primary and excess insurers, the interests of the two types
of insurers must be deemed “substantially adverse,” relegating them to different
“sides” in the litigation and entitling an after-named excess insurance carrier to the
exercise of a separate challenge pursuant to section 170.6, despite the previous
exercise of such a challenge by a primary insurance carrier.2 As we shall explain,

2
Following our grant of Montrose Chemical’s petition for review and the
completion of the parties’ briefing on the merits, Home Insurance notified us that
it had entered “rehabilitation” proceedings in its domiciliary state of New
Hampshire. In light of a 90-day stay order issued in those proceedings, Home
Insurance requested that we temporarily stay proceedings on review.
Subsequently, Home Insurance notified us that it had entered into liquidation
proceedings. Upon our request for an update and explanation of the effect of these
developments upon our grant of review, Home Insurance reported that it remained
in liquidation proceedings. In light of an order entered in the New Hampshire
proceedings abating any and all proceedings against Home Insurance and
(footnote continued on next page)
2

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we conclude that primary and excess insurance carriers do not necessarily have
“substantially adverse interests,” and that the trial judge, having determined that
Home Insurance had not established that defendants’ interests were substantially
adverse, did not err in striking the challenge of Home Insurance. Accordingly, we
reverse the judgment rendered by the Court of Appeal.
I
Commencing in 1983, the federal government and the State of California
brought a series of actions against Montrose Chemical seeking recovery for
environmental damage allegedly caused by its operations at various sites. In 1990,
following the filing of the second action against it, Montrose Chemical brought an
action naming as defendants its primary insurers and seeking declaratory relief
with regard to defense or indemnification under the operative commercial general
liability policies. (Montrose Chemical Company of California v. Canadian
Universal Insurance Company, Inc., et al. [now Certain Underwriters at Lloyd’s,
et al.] (Sup. Ct. L.A. County, No. BC 005158); see also Montrose Chemical Corp.
v. Superior Court (1993) 6 Cal.4th 287).) In that year, a defendant primary insurer

(footnote continued from previous page)
enjoining any person from commencing or continuing any proceeding against it,
Home Insurance requested, based upon insurance law, comity, and judicial
economy, that we both “dismiss or stay” review and order the trial court to
“dismiss or stay” the underlying action against it. Because of the changing nature
of both the New Hampshire proceedings and the related requests filed with this
court, this matter has presented a “moving target,” delaying our resolution of the
issue upon which we granted review, pending clarification of the insolvency status
of Home Insurance and review of these additional requests.

This court is not required, nor is it persuaded, by the language or existence
of the New Hampshire order, or the policies cited by Home Insurance, to dismiss
or stay review of the procedural question before us, or to order the trial court to
dismiss the underlying action. We deny the request to dismiss or stay review,
deny as moot the preceding request for a temporary stay, and deny the request to
dismiss or stay the underlying action against Home Insurance, without prejudice to
its filing a motion to dismiss in the trial court.
3

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exercised a challenge pursuant to section 170.6 against the trial judge (Judge G.
Keith Wisot) then presiding. Following assignment of a succession of judges, in
1993 Judge Joseph R. Kalin was assigned to the case for all purposes. Over the
greater part of the next decade, Montrose Chemical reached settlements with
defendant primary insurers, who subsequently were dismissed from the action.
In 2001, Montrose Chemical filed a second amended complaint naming as a
defendant Home Insurance, an insurer providing coverage of liability in excess of
the maximum coverage for liability provided by the policies of the primary
insurers. In 2002, after filing its answer to Montrose Chemical’s third amended
complaint, Home Insurance attempted to exercise, pursuant to section 170.6, a
challenge against Judge Kalin. Montrose Chemical filed an objection to the
challenge on the ground that the defense side previously had exercised the sole
challenge authorized by that statute.
Judge Kalin held a hearing and found that both the primary and the excess
insurers had taken the position that Montrose Chemical is not entitled to defense
or indemnification under the terms of the policies, that the issues  in particular,
that of the obligation to indemnify Montrose Chemical  had been before the
court for a number of years, that the pleadings of Home Insurance “somewhat
mirror[ed] the pleadings of other insurance companies in [the] case,” and that, as
between Home Insurance and the primary insurers that previously had settled with
Montrose Chemical, no claims existed relating to exhaustion of policy limits or
other issues. Based upon those findings, Judge Kalin determined that the interests
of Home Insurance, as an excess insurer, were not substantially adverse to those of
the primary insurers. Having found the insurers to be on the same side, the judge
ordered stricken the section 170.6 challenge filed by Home Insurance.
Home Insurance filed a petition for writ of mandate in the Court of Appeal,
seeking to have the appellate court direct the trial judge to grant the carrier’s
motion to exercise a separate section 170.6 challenge. The appellate court
concluded that as an excess insurer, Home Insurance was entitled to exercise a
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separate challenge because, as a general matter, the interests of defendant primary
and excess insurers are substantially adverse, and that to require a trial court to
make a factual determination on the issue of conflict of interest would unduly
burden that court with the responsibility of deciding the merits of the case. The
Court of Appeal granted the petition and issued the requested writ of mandate.
We granted review on petition of real party in interest Montrose Chemical.
II
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. (Pappa v. Superior Court (1960) 54 Cal.2d 350, 354 (Pappa); see
McClenny v. Superior Court (1964) 60 Cal.2d 677, 685-686 & fn. 16 (McClenny);
Johnson v. Superior Court (1958) 50 Cal.2d 693, 696-697 (Johnson).)3 The
statute applies equally in civil and criminal matters. (Jimenez, supra, 28 Cal.4th
798, 805-806; Pappa, supra, 54 Cal.2d at pp. 353-354; see People v. Superior
Court (Lavi), supra, 4 Cal.4th 1164 at pp. 1170, 1184.)
As relevant to our discussion, section 170.6 provides that no superior court
judge shall try any civil or criminal action involving a contested issue of law or
fact when it is established that the judge is prejudiced against any party or attorney
appearing in the action. (Subd. (a)(1).) Prejudice may be established by the party
or attorney “by an oral or written motion without notice supported by affidavit or
declaration under penalty of perjury or an oral statement under oath” that the judge

3
As we stated in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164,
1170, footnote 1, motions to disqualify made pursuant to section 170.6 usually are
referred to as “peremptory challenges,” despite the circumstance that, unlike a true
peremptory challenge, the movant is required to declare under penalty of perjury
or orally state under oath that there is prejudice on the part of the judge. No
factual showing or allegation is required in support of that conclusory declaration,
and in People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 806 (Jimenez)
we observed that a challenge under the statute frequently, and properly, is referred
to as a “peremptory challenge.”
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is prejudiced against the party or attorney “so that the party or attorney cannot or
believes that he or she cannot have a fair and impartial trial” before the judge.
(Subd. (a)(2).) The most significant provision related to the issue before us states:
“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; and 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.” (Subd. (a)(3), italics added.)
Section 170.6 permits a party to obtain the disqualification of a judge for
prejudice, based solely upon a sworn statement, without being required to
establish prejudice as a matter of fact to the satisfaction of the court. (Pappa,
supra, 54 Cal.2d at p. 353; Johnson, supra, 50 Cal.2d at p. 697; Grant v. Superior
Court (2001) 90 Cal.App.4th 518, 523-524; Barrett v. Superior Court (1999) 77
Cal.App.4th 1, 4.) When a party timely files, in proper form, a motion to
disqualify a judge based upon this provision, the trial court is bound to accept the
disqualification without further inquiry. (Jimenez, supra, 28 Cal.4th at p. 806;
Solberg v. Superior Court (1977) 19 Cal.3d 182, 187 (Solberg); Barrett v.
Superior Court, supra, 77 Cal.App.4th at pp. 4-5; Avital v. Superior Court (1981)
114 Cal.App.3d 297, 300 (Avital).)
At the same time, section 170.6 is designed to prevent abuse by parties that
merely seek to delay a trial or obtain a more favorable judicial forum. (Peracchi
v. Superior Court (2003) 30 Cal.4th 1245, 1252-1253 (Peracchi); Jimenez, supra,
28 Cal.4th at pp. 807-808; Solberg, supra, 19 Cal.3d at pp. 197-198; People v.
Escobedo (1973) 35 Cal.App.3d 32, 40, fn. 6.) 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)(3).) The phrase “only one motion for each side” contemplates
that one side may consist of several parties, and a peremptory challenge by any
6

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party disqualifies the judge on behalf of all parties on that side. (Pappa, supra, 54
Cal.2d at pp. 353-354.) 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. (People v. Escobedo, supra, 35 Cal.App.3d at p. 40.)
To effectuate the Legislature’s intent, our courts “have been vigilant to
enforce the statutory restrictions on the number and timing of motions permitted.”
(Solberg, supra, 19 Cal.3d at p. 197; Jimenez, supra, 28 Cal.4th at p. 806.)4 We
have not permitted “ ‘a device intended for spare and protective use to be
converted into a weapon of offense and thereby to become an obstruction to
efficient judicial administration.’ ” (Peracchi, supra, 30 Cal.4th at p. 1253;
Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212, 1221;
see Jimenez, supra, 28 Cal.4th at pp. 808-809.)
Consistent with this legislative aim, when a party among several on the
same side has disqualified a trial judge pursuant to section 170.6 and subsequently

4
To that end, we have interpreted the phrase “any one action” to encompass
several stages of the same proceeding. In general, a party that has disqualified a
judge pursuant to section 170.6 may not exercise a challenge against the
substituted judge either during the trial or in any later proceeding that is a
“continuation” of the original proceeding. (See Solberg, supra, 19 Cal.3d at
p. 190, fn. 6; Pappa, supra, 54 Cal.2d at p. 353 [limitation of one motion “in any
one action” under § 170.6, former subd. (3) barred a second motion on retrial
following a mistrial]; Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, 678-
679, 682-683; City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 589-
590; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter
Group 2003) ¶ 3:168, p. 3-40; see also Solberg, supra, 19 Cal.3d at pp. 197-198
[noting requirement that the motion be filed before “trial of the cause has . . .
commenced” under § 170.6, former subd. (2) prohibits a party from making a
motion for the first time in post-trial matters, such as hearings on orders to modify
(Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190) or enforce (McClenny,
supra, 60 Cal.2d 677, 687-689) the original judgment, that essentially are a
continuation of the main proceeding]; cf. Peracchi, supra, 30 Cal.4th at pp. 1255-
1258 [remand for resentencing following appeal did not afford the defendant a
“new trial” within the meaning of 1985 amendment to § 170.6, former subd. (2),
(footnote continued on next page)
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is dismissed from the action, the disqualification is not thereby annulled  the
remaining parties on the same side are not entitled to a new peremptory challenge.
(Louisiana-Pacific Corp. v. Philo Lumber Co., supra, 163 Cal.App.3d at p. 1219;
Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, ¶ 3:188, p. 3-
46.) Similarly, 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.” (School Dist. of Okaloosa County v.
Superior Court (1997) 58 Cal.App.4th 1126, 1135.) Conversely, when parties on
the same side have waived or have not exercised their right to a peremptory
challenge of the judge, a late-appearing party on that side may exercise such a
challenge. (Id. at p. 1135; Wegner et al., supra, ¶ 3:186, p. 3-46.)
This court long has recognized that, in certain circumstances, section 170.6
authorizes the exercise of a peremptory challenge by more than a single plaintiff
or defendant. Following enactment in 1957 of section 170.6, which at that time
applied solely in civil actions, we considered its constitutionality in Johnson,
supra, 50 Cal.2d 693, involving a malpractice action. We held that, by imposing a
limit of one disqualification “per side” in an action, section 170.6 does not deny
equal protection of the laws by discriminating against multiple parties. (Johnson,
at p. 700.) We reasoned that a party, although joined with other parties, may be
considered to be on a different side within the meaning of the statute when the
joined parties have interests that are “substantially adverse.” (Ibid.) We provided,
as such an example, a situation in which two drivers whose vehicles collide and
injure the plaintiff are jointly named as defendants. (Id. at p. 700; Wegner et al.,
Cal. Practice Guide: Civil Trials and Evidence, supra, ¶ 3:189, pp. 3-46, 3-47.)

(footnote continued from previous page)
permitting an additional peremptory challenge following reversal on appeal when
trial judge in the prior proceeding is assigned to conduct a new trial].)
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Following amendment in 1959 of section 170.6 to include criminal actions,
in Pappa we considered the standard announced in Johnson in a criminal case in
which codefendants Finch and Pappa were charged with murder. Finch
disqualified the judge pursuant to section 170.6. Following a mistrial, Pappa was
denied her peremptory challenge of the judge assigned to retry the case, and
sought a writ of prohibition to preclude the challenged judge from presiding.
(Pappa, supra, 54 Cal.2d at pp. 352-353.)
The majority held that, in order to carry out the legislative intent “to
minimize abuses of the privilege,” the party seeking to exercise a subsequent
peremptory challenge has the burden of establishing that his or her interests are
substantially adverse to those of the codefendant. (Pappa, supra, 54 Cal.2d at
p. 354.) The majority added: “If for some reason a party does not desire to
assume the burden of establishing that he comes within these conditions, he may
pursue the alternative procedure under section 170 of alleging and proving the
facts upon which he relies to establish prejudice.” (Ibid.)
The majority determined that Pappa’s attempt to establish a conflict of
interest — relying on the prosecution’s theory, revealed at the original trial, that
Finch was the principal and Pappa was an aider and abettor, as well as the trial
court’s denial of Pappa’s motion for a separate trial and Pappa’s opposition to
Finch’s motion for a change of venue — was “very meager.” (Pappa, supra, 54
Cal.2d at p. 354.) The majority observed that Pappa was not claiming that each of
the defendants was attempting to avoid conviction by shifting responsibility for
the homicide to the other; rather, Finch’s defense against the charge that he acted
as the principal likely would support Pappa’s defense against the charge of aiding
and abetting. (Id. at pp. 354-355.) “Although differences of opinion between
codefendants as to procedural matters such as the desirability of a change of venue
or a separate trial might, under some circumstances, show the existence of
substantially adverse interests, it should not be assumed that this is true in the
absence of a showing of what the circumstances are and how they affect each of
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the parties and the relationship between them.” (Id. at p. 355.) The majority went
on to reject the dissent’s view that the record was sufficient to establish a
possibility that the interests of the parties were substantially adverse and justified a
subsequent peremptory challenge. (Id. at pp. 355-356; see id., dis. opn. at pp. 361-
362.)
Subsequent civil and criminal decisions have adhered to the evidentiary
standard enunciated in Pappa. These cases 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.
For example, in Avital, supra, 114 Cal.App.3d 297, the codefendants
Zakaria and Avital jointly were charged with multiple homicides. After Zakaria
peremptorily challenged the trial judge originally assigned, Avital filed a
peremptory challenge against the judge who replaced him, supported by the
declaration of Avital’s attorney that Avital maintained his own innocence “as
opposed to that of his codefendant Joseph Zakaria,” had entered into an
agreement with the district attorney to testify against Zakaria, and could furnish
particulars in an in camera hearing. (Id. at pp. 299-300.) In reversing the trial
court’s denial of the second peremptory challenge, the Court of Appeal concluded
that Avital had satisfied his evidentiary burden, observing that his strategy of
avoiding conviction by shifting responsibility to Zakaria was “a classic example
of the substantially adverse interest” described in Pappa. (Avital, supra, 114
Cal.App.3d at p. 302; see, e.g., People v. Eaker (1980) 100 Cal.App.3d 1007,
1016-1017 [the defendant was not entitled to a second peremptory challenge
against the judge after a codefendant’s attorney challenged the previously
assigned judge and the defendant failed to demonstrate his interests were
substantially adverse to those of the codefendant]; Welch v. Superior Court (1974)
41 Cal.App.3d 50, 52 [the defendant’s attorney’s declaration speculating how the
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coparties’ adverse interests might arise, rather than how they had arisen, was
insufficient to support subsequent disqualification of the trial judge]; People v.
Escobedo, supra, 35 Cal.App.3d 32, 41 [a defendant was not entitled to
peremptorily challenge the hearing judge after the codefendant exercised such a
challenge, where the codefendants did not have a conflict of interest in seeking to
suppress evidence obtained in the search of the codefendant’s premises]; see also
Sunkyong Trading (H.K.) Ltd. v. Superior Court (1992) 9 Cal.App.4th 282, 289-
290, fn. 4 [party not entitled to severance of cross-complaint in order to enable it
to avoid burden of establishing interests substantially adverse to another party that
had exercised an earlier peremptory challenge in the proceeding].)
In the present case, the Court of Appeal held that Home Insurance was
entitled to exercise a subsequent peremptory challenge because “more often than
not,” the interests of primary insurers and excess insurers are substantially adverse
to one another. The appellate court reasoned that, because liability under the
policy of an excess insurer is not triggered until the claimed losses exceed the
limits of the primary insurance policy, the primary and excess insurers will
attempt to “foist liability” upon one another whenever both are named as
defendants.
The Court of Appeal also reasoned that, in view of the nature both of the
relationship between primary and excess insurers and their relationship to the
related litigation, a trial judge required to review evidence in support of a claim
that such coparties’ interests are substantially adverse would be obligated to
“review a truckload of pleadings and other documents” and decide the merits of
the lawsuit. The court held that, in itself, “the ineluctable tension between primary
and excess carriers sued in the same lawsuit is sufficient to show substantial
adversity and to create two defense sides within the meaning of section 170.6.”
Observing that Home Insurance was named as a defendant long after
commencement of the action, the court also suggested that currently the action
“amounts to an entirely new action against a new party.”
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We do not agree with the appellate court’s reasoning. As Montrose
Chemical and amicus curiae have pointed out, a particular insurance carrier does
not necessarily provide only one type of coverage, and an insured may have both a
primary and an excess insurance policy issued by the same insurance carrier. Such
an insurer will have little motivation to “foist liability” upon itself. In the
underlying action, for example, Travelers Insurance Co. apparently provided
Montrose Chemical with both primary and excess insurance coverage.
Moreover, even when an insured has primary and excess insurance
coverage with separate insurance carriers, the interests of such insurers are not
inherently substantially adverse. Both types of insurers may take the position, as
they did in the present case, that the policies in question afforded no coverage.
The excess insurer may assert against the insured, as Home Insurance did in the
present case, that it is not liable because the coverage afforded by the primary
insurer has not been exhausted  a position that is not equivalent to the position
that the primary insurer is solely liable and the excess insurer is not at all liable.
The question whether a primary insurer and an excess insurer are on the same side
for purposes of section 170.6 is a factual one, as is the situation with regard to
other types of parties to litigation.
Nor does the circumstance that the plaintiff belatedly names a party as a
defendant establish that that party’s interests are substantially adverse to earlier
named defendants. (School Dist. of Okaloosa County v. Superior Court, supra, 58
Cal.App.4th 1126, 1134-1135 [one side previously having peremptorily
challenged the judge, a late-appearing party on the same side did not have a right
to a separate peremptory challenge]; cf. Industrial Indemnity Co. v. Superior Court
(1989) 214 Cal.App.3d 259, 264 [upholding Judicial Council rule limiting to 20
days the right of “add-on” parties in coordinated cases to exercise a section 170.6
challenge, and observing that such a challenge is particularly subject to abuse in
“add-on” cases because, due to the trial judge’s lengthy participation in a
coordinated case, the nature and extent of his or her rulings is well known —
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presenting an “unusual opportunity” to challenge for reasons unrelated to bias or
prejudice].)
Although the Court of Appeal suggested that, in addition, the third
amended complaint “amount[ed] to an entirely new action,” the trial court did not
make such a determination. Rather, the trial court implicitly determined, in
granting leave to amend the complaint, that Montrose Chemical had alleged claims
that were substantially related to the subject matter of the existing action. (See
Pasadena Hospital Assn., Ltd. v. Superior Court (1988) 204 Cal.App.3d 1031,
1036-1037; accord, Congleton v. Nat’l Union Fire Ins. Co. (1987) 189 Cal.App.3d
51, 62 [ruling of trial court granting or denying leave to amend pleading is entitled
to deference].)
Finally, we do not agree that requiring an excess insurer to make a showing
establishing substantially adverse interests would impose an undue burden upon
trial courts in determining whether the interests of primary and excess insurers are
substantially adverse. As the majority explained in Pappa, supra, 54 Cal.2d 350, 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 pp. 354-355.)
In the present case, Home Insurance attempted to demonstrate to the trial
court that its interests as an excess insurer were significantly opposed to those of
the primary insurers. The trial court appeared to have little difficulty in
determining that the interests of coparties were not substantially adverse, and on
that basis denying a second peremptory challenge. The mere likelihood of, or
potential for, a conflict between the primary and excess insurers 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.
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III
The judgment of the Court of Appeal is reversed.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.
TURNER, J.*
* Honorable Paul Turner, Presiding Justice, Court of Appeal, Second Appellate
District, Division 5, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
14

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Home Insurance Company v. Los Angeles Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 101 Cal.App.4th 515
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S110328
Date Filed: January 13, 2005
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Joseph R. Kalin*

__________________________________________________________________________________

Attorneys for Appellant:

Charlston, Revich, Chamberlin & Williams, Charlston, Revich & Chamberlin, Stephen P. Soskin and
Timothy F. Rivers for Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Latham & Watkins, David L. Mulliken, Charles S. Treat, Diana Strauss Casey and Marc D. Halpern for
Real Party in Interest.

Heller, Ehrman, White & McAuliffe, David B. Goodwin; Munger, Tolles & Olson, Cary B. Lerman, Paul J.
Watford and Anne M. Voigts for Kelly-Moore Paint Company, Inc. and Bayer CropScience Inc., as Amici
Curiae on behalf of Real Party in Interest.

*Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
15

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen P. Soskin
Charlston, Revich & Chamberlin
1925 Century Park East, Suite 1250
Los Angeles, CA 90067-2746
(310) 551-7000

David L. Mulliken
Latham & Watkins
701 “B” Street, Suite 2100
San Diego, CA 92101
(619) 236-1234

16

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Opinion Information

Date:	Docket Number:
Thu, 01/13/2005	S110328

Disposition
Jan 13 2005	Opinion: Reversed

Dockets
Oct 2 2002	Petition for review filed   by counsel for Real Party In Interest (Montrose Chemical Corp. of Calif) (40k)
Oct 2 2002	Record requested
Oct 3 2002	Received Court of Appeal record   1 doghouse
Nov 13 2002	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Nov 14 2002	Received Court of Appeal record   1 doghouse
Nov 27 2002	Certification of interested entities or persons filed   petitioner Home Insurance Company
Dec 2 2002	Certification of interested entities or persons filed   by counsel for RPI
Dec 13 2002	Opening brief on the merits filed   by counsel for RPI (Montrose Chem. Corp. of California)
Jan 6 2003	Request for extension of time filed   to file Answer Brief/Merits petitioner The Home Ins. Co. [to Feb 14, 2003]
Jan 14 2003	Extension of time granted   to 2-14-03 for petnr to file the answer brief on the merits.
Feb 14 2003	Answer brief on the merits filed   petitioner The Home Insurance Company
Feb 24 2003	Change of Address filed for:   counsel for petitioner Home Insurance Company [attys Soskin & Rivers]
Mar 6 2003	Reply brief filed (case fully briefed)   by RPI
Apr 3 2003	Received application to file amicus curiae brief; with brief   Bayer CropScience, Inc. and Kelly-Moore Paint Company, Inc.
Apr 15 2003	Stay application filed (separate petition pending - civil)   Motion to stay proceedings; rec'd declaration; rec'd appendix of non-calif authorities
Apr 16 2003	Permission to file amicus curiae brief granted   by Bayer CropScience and Kelly-Moore Paint Co. in support of RPI. Any answer due w/in 20 days.
Apr 16 2003	Amicus Curiae Brief filed by:   Bayer CropScience and Kelly-Moore Paint Co. in support of RPI.
Apr 18 2003	Filed:   Letter from real party in interest expressing intention to file opposition to stay request.
Apr 22 2003	Opposition filed   by real party in interest to Home Insurance's Motion to Stay Proceedings
May 7 2003	Response to amicus curiae brief filed   by petitioner Home Insurance Company to ac brief of Bayer Cropscience, Inc. etal
Jun 23 2003	Received:   notice of liquidation of Home Insurance Company
Jan 8 2004	Letter sent to:   counsel for petitioners requesting an update as to the present status of the Home Insurance Company and an explanation how that status should affect proceedings before the court. Letter due Jan 20, 2004; a reply may be filed by RPI within 5 days after Petitioner's letter.
Jan 14 2004	Received letter from:   counsel for RPI (Montrose Chem. Corp.) confirming intention to file a reply within specified (5) day time limit by the Court.
Jan 20 2004	Received letter from:   counsel for (Home Insurance Co.) re: status
Jan 27 2004	Received letter from:   Latham & Watkins, counsel for RPI (Montrose), in reply to the Court's 1-8-2004 letter request for an update.
Feb 3 2004	Change of Address filed for:   Latham & Watkins (counsel for RPI)
Oct 4 2004	Case ordered on calendar   11/3/04 @ 1:30pm, Sacramento
Oct 7 2004	Filed:   letter from resp
Oct 22 2004	Received:   RPI's "supplemental brief"
Nov 3 2004	Cause argued and submitted
Jan 13 2005	Opinion filed: Judgment reversed   Majority opinion by George, C.J. ---------------joined by Kennard, Baxter, Werdegar, Brown, Moreno, Turner*, JJ. *Hon. Paul Turner, P.J. C/A 2-5, assigned.
Feb 17 2005	Remittitur issued (civil case)

Briefs
Dec 13 2002	Opening brief on the merits filed
Feb 14 2003	Answer brief on the merits filed
Mar 6 2003	Reply brief filed (case fully briefed)
Apr 16 2003	Amicus Curiae Brief filed by:
May 7 2003	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website