Blanchard, Krasner & French’s Kipp Williams and John Whittemore Defeat Writ Petition in Published Opinion Issued by the California Court of Appeal

Blanchard, Krasner & French attorneys Kipp Williams and John F. Whittemore defeated a writ petition in a published opinion issued by the California Court of Appeal, Fourth Appellate District, Division One, on February 7, 2019, while representing clients Overland Direct, Inc. and CTPC, LLC (“Overland”).

Mr. Williams and Mr. Whittemore represent Overland in several cases pending in California Superior Court alleging that various defendants fraudulently induced Overland to assign security interests in multiple properties to certain defendants. After successfully moving to transfer and consolidate two cases pending in Los Angeles and San Bernardino, respectively, with an earlier-filed action pending in San Diego, three defendants in the San Bernardino action filed a peremptory challenge pursuant to Code of Civil Procedure section 170.6 against the San Diego trial judge who granted Overland’s transfer motion. The challenge was denied, and the defendants filed a writ petition in the Court of Appeal. The Court of Appeal subsequently issued an order to show cause, meaning it would address the writ petition on its merits.

On January 16, 2019, Mr. Whittemore presented oral argument at the Court of Appeal in downtown San Diego before Acting Presiding Justice Richard Huffman and Associate Justices Gilbert Nares and Judith Haller. On February 7, 21019, the Court of Appeal unanimously ruled in Overland’s favour when it denied the defendants’ writ petition. Writing for the Court, Justice Haller summarized the Court’s decision as follows:

“Based on our evaluation of the parties’ arguments, the record, and the applicable law, we conclude the court properly found the Sunrise defendants’ section 170.6 challenge was untimely because defendants filed the challenge more than 15 days after they made an appearance in the action by filing an opposition to the section 403 transfer/consolidation motion in Judge Wohlfeil’s department. In reaching this conclusion, we are aware that section 170.6’s time deadlines were not written with section 403 transfer motions in mind, and there are several plausible ways to interpret section 170.6 in this context. But we are satisfied with our conclusion best effectuates the legislative intent when viewing the specific words of the statute and the statutory purpose and objectives.”

Notably, the Court of Appeal’s Opinion was “Certified for Publication”—a distinction that approximately only 8 per cent of all opinions issued by the California Courts of Appeal receive each year. Published opinions of the appellate courts are opinions ordered published in the Official Reports and may be cited or relied on by other courts and parties.

Blanchard, Krasner & French is proud to celebrate the continued success of our team and excited their expertise will now be referenced for years to come when fellow attorneys encounter a similar procedural situation. Congratulations, Mr. Williams and Mr. Whittemore! We are honoured by your impressive due diligence and thrilled we can give our clients such exemplary counsel.

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Contributing Advisors