Vargha v. Regents of the >University>
of Cal>.























Filed 6/29/12
Vargha v. Regents of the University of Cal. CA1/4

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION FOUR




>

PIRUZ VARGHA, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

A131779 (San Francisco County Super. Ct. No. CGC0941720)

Pro per appellant Piruz Vargha sued
respondents the Regents of the University of California
(the Regents) and four individuals after he was terminated during a
probationary period at the University of California, href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Francisco (UCSF). He alleged that
respondents retaliated against him for reporting safety concerns. The trial court granted respondents’ motion
for summary judgment. Appellant argues
that the trial court erred when it granted the motion, as well as when it
denied his peremptory challenge of the trial judge pursuant to Code of Civil
Procedure section 170.6. We affirm.

I.

Factual and Procedural

Background

“We accept as true the following
facts and reasonable inferences supported by the parties’ undisputed evidence
on the motion for summary judgment. [Citation.]”
(Arteaga v. Brink’s, Inc.
(2008) 163 Cal.App.4th 327, 335.)

Appellant began working as a safety
specialist for UCSF in November 2005.
He was required to work for a six-month probationary period, during
which he could be terminated at any time at the discretion of the university,
pursuant to UCSF policy. Appellant’s job
duties included monitoring the use of radioactive materials and radiation
producing equipment, auditing laboratories and nuclear medicine and radiation
oncology departments, and conducting radiation safety training. His position required him to help medical staff
administer unsealed radioactive materials, which involved meeting with patients
and family members to discuss exposure levels.
Respondent William Lew was appellant’s supervisor.

Concerns about appellant’s
performance began to surface within weeks of his starting to work at UCSF. He wore protective gear in inappropriate
places (which concerned Lew and other coworkers), he became defensive when
asked to stop wearing the gear outside controlled areas, and he refused to
participate in staff meetings and to attend other work-related events. Although Lew tried to address these issues
with appellant, appellant’s “eccentric behavior” persisted, such as when Lew
asked appellant to watch a training regarding breathing equipment to be worn in
emergencies, and appellant refused.

In his declaration submitted in
opposition to respondents’ summary judgment motion, appellant explained some of
the behavior that respondents considered “peculiar,” claiming that he wore
sterile gloves outside of protected areas because he used them “as bandages” to
prevent infection after suffering cuts while working with animals. He acknowledged that when Lew confronted him
about wearing the gloves, he asked who had complained, and told Lew to tell the
employee to ask appellant directly about it.
He denied refusing to participate in staff meetings and work-related
events, but acknowledged that he did not attend two required meetings, because
the meeting rooms were “overflowing,” and it was “not possible to get in.” He also acknowledged at his deposition that
he left a staff meeting on February 7, 2006, after standing outside the
room for 10 minutes, because the meeting was about zebra fish, and he “had more
pressing work to do than listen to somebody who did interesting research on
fish.” Appellant also provided an explanation
for why he refused to have Lew train him in the use of breathing
equipment. Appellant claimed that in
late February 2006, he was in Lew’s office when “a woman with a clipboard”
interrupted them to ask that people who were “on a list” of those who had been
trained in the equipment to perform “some kind of a test.” Appellant was not on the list, but Lew
offered to train him on how to use the equipment. Appellant did not feel it was appropriate to
conduct training at that time, left the room while Lew was using the equipment
at issue, and explained to Lew later that he “had not understood what he [Lew]
was doing and why he was doing it.” He
also told Lew that “it was not as if I urgently needed or wanted to wear” the
breathing equipment anyway.

According to Lew, he “never
perceived anything [appellant] discussed with me as complaining about anything
unlawful or outside the scope of [his] employment.” In appellant’s declaration, appellant
recounted in detail all the unsafe things he witnessed Lew do, as well as
unsafe tasks Lew asked appellant to perform.
Appellant declared that he considered the safety violations he witnessed
to be “amazing” and “strange[],” and that some of the things he witnessed
“confirmed [his] worst fears” about employees’ exposure to various
hazards. He stated that he asked Lew
questions about various practices that appellant felt were being done
“incorrect[ly]” or in an “illogical” manner, but that Lew became defensive and
dismissive.

Appellant met twice with respondent Robert
Eaton, the director of UCSF’s department of environmental health and safety, on
December 21 and 22, 2005. Appellant
raised concerns related to radiation safety, lack of training for technicians,
and Lew’s management style. According to
appellant, he repeatedly told Eaton that he did not want to risk losing his job
for sharing information about safety concerns, and Eaton told him that UCSF had
a whistleblower protection policy, and that appellant could not be fired for
raising safety issues. After their
meetings, Eaton sent appellant an e-mail summarizing their discussions. Appellant responded to the e-mail, provided
some clarifications, and thanked Eaton for his interest in appellant’s opinion. In his declaration, appellant claimed that
Eaton’s e-mail following their meetings was part of a “cover up” that “had been
set in motion.” Appellant testified at
his deposition that he did not discuss or share the e-mail exchange with
anyone, that he did not recall telling anyone at UCSF about his two meetings
with Eaton, and that he did not know one way or the other whether Eaton told
anyone about their meetings. He also
testified that although Eaton seemed “very worried” about the issues they
discussed, he did not appear angry or upset with appellant for raising safety
concerns.

A human resources analyst informed
supervisor Lew on February 3, 2006, that Lew needed to conduct a mid-point
evaluation of appellant, as part of appellant’s probationary period
assessment. Lew asked for feedback from
respondent Keith Cudaback, a safety specialist who shared office space with
appellant, and who had no authority to terminate or discipline appellant. Cudaback told Lew that appellant seemed to
have an argumentative attitude, and had “openly expressed his fundamental
opposition to the type of work” that UCSF performed. Appellant had told Cudaback that UCSF doctors
were “ ‘putting money and research prestige ahead of patient and staff
safety.’ ” Appellant also had
referred to a pediatric oncology patient as a “ ‘cry baby,’ ” a
remark that appellant confirmed that he had made during his deposition. Cudaback felt that this was an inappropriate
comment that demonstrated a lack of compassion.
Other medical staff raised concerns that appellant “seemed ‘defensive,’
‘weird,’ and had ‘poor people skills.’ ”
This feedback was consistent with Lew’s impression of appellant.

Lew met with the chief
administrative officer of UCSF’s office of research on February 22, 2006,
to review appellant’s mid-point evaluation.
The two agreed that appellant did not seem well suited for the
position. They never discussed any
safety concerns that appellant had raised during his employment.

Two days later, on February 24,
2006, appellant forwarded the e-mail exchange that he and Eaton had had
regarding their meetings the previous December back to Eaton. According to appellant, Eaton had requested a
copy of the exchange, stating that he had lost it. Appellant further declared that Eaton had
explained that an irradiator appellant had identified as having problems had
been repaired, and technicians had been trained (a contention that appellant
disputed), so Eaton “wanted to close out the issue.” Less than 10 minutes after appellant
forwarded the original exchange, Eaton replied to appellant, stating, “Thanks
for forwarding this back to me and thank you for originally bringing these
issues to my attention. Please let me
[know] if there are currently specific safety concerns that you have with our
Radiation Safety Program.”

Lew notified appellant on
March 3, 2006, that Lew was releasing him from his employment. According to both Lew and Eaton, Eaton played
no role in the decision to initiate appellant’s mid-point evaluation, did not
participate in the evaluation, did not initiate his termination, and did not
provide any “meaningful input” into the decision to terminate him, other than
approving Lew’s decision to do so.

Respondent Aramaies Tahmassian, who
served as associate vice chancellor of research at UCSF during appellant’s
brief employment at the university, played no role whatsoever in appellant’s
mid-point evaluation, and was not aware that Lew was going to fire appellant
until after Lew already had made the decision to do so. Appellant testified during his deposition
that he met Tahmassian on two occasions, but they did not have any substantive
discussions.

In March 2007, appellant addressed
an internal whistleblower retaliation
complaint to a UCSF associate vice chancellor.
Following a fact-finding investigation, UCSF rejected the complaint,
after concluding that appellant was not terminated based on retaliation.

Appellant, proceeding without an
attorney, sued respondents Regents, Lew, Eaton, Tahmassian, and Cudaback for
wrongful termination. An amended
complaint alleged causes of action for wrongful termination in violation of
(1) Health and Safety Code section 1278.5 (whistleblower
protections), (2) Labor Code section 1102.5, subdivision (b)
(employer retaliation), and (3) Government Code section 8547 et
sequitur (California Whistleblower Protection Act).href="#_ftn1" name="_ftnref1" title="">[1]


Respondents filed a motion for
summary judgment, or in the alternative, summary adjudication, which appellant
opposed. Following a hearing, the trial
court granted respondents’ motion. It
concluded that (1) there was no triable issue of fact regarding whether
appellant was engaged in a protected activity, (2) there was no triable
issue of fact regarding whether appellant’s termination “resulted from
retaliatory animus,” because the evidence was clear that “his termination was
based solely on legitimate performance issues and that there is no evidence
that these reasons were pretextual,” (3) the claims against respondents
Cudaback, Tahmassian, and Eaton failed because there was no evidence that any
of them was involved in the decision to terminate appellant, and
(4) respondent Regents was immune from liability pursuant to >Palmer v. Regents of University of
California (2003) 107 Cal.App.4th 899, 909.

Appellant, still proceeding without
an attorney, appealed from the order granting summary judgment. An appeal can be taken following an order
granting summary judgment only after the court enters a judgment, which had not
happened before appellant filed his notice of appeal on April 8,
2011. (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1,
6.) On its own motion, this court takes
judicial notice of a judgment filed in the trial court on May 13, 2011,
which is available on the trial court’s website. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).) We construe the
trial court’s order granting summary judgment as an announcement of its
intended ruling, and treat appellant’s notice of appeal as being filed
immediately after entry of judgment.
(Cal. Rules of Court, rule 8.104(d).)

II.

Discussion

>A.
Summary Judgment.

1.
Standard of review

“ ‘ “This court reviews de
novo the trial court’s decision to grant summary judgment and we are not bound
by the trial court’s stated reasons or rationales. [Citation.]”
[Citation.]’ ” (>Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 67 (Morgan) [affirming grant of summary judgment in retaliation
lawsuit].)

2.
No triable issue of material
fact

Appellant argues that the trial
court erred in granting summary judgment on his claims that he was terminated
in retaliation for reporting safety violations.
“ ‘ “To establish a prima facie case of retaliation, a
plaintiff must show that she engaged in protected activity, that she was
thereafter subjected to adverse employment action by her employer, and there
was a causal link between the two.” ’
[Citation.]” (>Morgan, supra, 88 Cal.App.4th at p. 69.) “If the employee establishes a prima facie
case, the employer is required to offer a legitimate, nondiscriminatory reason
for the adverse employment action.
[Citation.] The employer’s burden
at this stage is to go forward with additional evidence; it does not take on a
burden of persuasion. [Citations.] If the employer produces substantial evidence
of a legitimate, nondiscriminatory reason for the adverse employment action,
the presumption of discrimination created by the prima facie case
‘ “simply drops out of the picture” ’ [citation] and the burden
shifts back to the employee to prove intentional discrimination. [Citations.]
‘[T]he plaintiff may establish pretext “either directly by persuading
the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” ’ [Citations.] Circumstantial evidence of ‘ “pretense”
must be “specific” and “substantial” in order to create a triable issue with
respect to whether the employer intended to discriminate’ on an improper basis. [Citations.]
With direct evidence of pretext, ‘ “a triable issue as to the
actual motivation of the employer is created even if the evidence is not
substantial.” [Citation.] The plaintiff is required to produce “very
little” direct evidence of the employer’s discriminatory intent to move past
summary judgment.’ [Citation.]” (Id.
at pp. 68-69.)

There is no dispute that appellant
suffered an adverse employment action when he was terminated from UCSF. Respondents argued below that appellant did
not engage in protected activity, because he was making disclosures as part of
his regular job duties, and the trial court agreed. On appeal, appellant recites at length the
various complaints he made regarding practices at UCSF that he believed were
violating state and federal safety laws and regulations, and focuses in
particular on the potential dire consequences if UCSF does not remedy the
alleged violations of which he complained.
Respondents now apparently concede, at least for purposes of appellant’s
Labor Code claim, that recent caselaw establishes that information provided to
a supervisor in the normal course of an employee’s duties may amount to an
actionable protected disclosure, and do not further address this issue. (Mize-Kurzman
v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 856-858.) We thus assume, for purposes of this appeal,
that appellant was engaged in protected activity when he complained about
safety issues to respondent Eaton.

The trial court additionally
concluded that there was no triable issue of material fact as to whether appellant’s
termination “resulted from retaliatory animus,” that is, whether there was a
causal link between his protected activity and his termination. (Morgan,
supra, 88 Cal.App.4th at p. 69,
fn. omitted.) Such a causal link between
a plaintiff’s protected activity and an adverse employment action is required
by each of the three statutes under which appellant sued. (Patten
v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384
[Lab. Code, § 1102.5, subd. (b) cause of action]; >Jadwin v. County of Kern (E.D.Cal. 2009)
610 F.Supp.2d 1129, 1144 [Health & Saf. Code, § 1278.5 cause of
action]; Gov. Code, § 8547.10, subd. (d) [California Whistleblower
Protection Act not intended to prevent manager from taking personnel action
against University of California employee if manager reasonably believes that
action was justified based on evidence separate and apart from protected
disclosure].)

Respondents provided substantial
evidence in support of its summary judgment motion that appellant was terminated
for reasons unrelated to his complaints about safety concerns. (Morgan,
supra, 88 Cal.App.4th at
p. 68.) Appellant’s coworkers and
his supervisor reported concerns that he wore protective gear in inappropriate
locations, that he was insensitive about a cancer patient with whom he had
interacted, and that they considered him to be eccentric and defensive, having
poor people skills. Even assuming
arguendo that appellant established a prima facie case of retaliation, or that
there was a rebuttable presumption that discriminatory action was taken against
appellant given the timing of his termination (Health & Saf. Code,
§ 1278.5, subd. (d)(1)),href="#_ftn2"
name="_ftnref2" title="">[2]
the presumption of discrimination “ ‘ “simply drop[ped] out of the
picture” ’ ” when respondents provided this substantial evidence of
legitimate, nondiscriminatory reasons for his termination. (Morgan
at p. 68.) Appellant thereafter
provided no direct evidence that the reasons given for his termination were
pretextual. (Id. at pp. 68-69.) He
likewise provided insufficient circumstantial evidence of pretext; that is,
evidence that was sufficiently “ ‘ “specific” ’ ” and
“ ‘ “substantial” ’ ” to show that respondents were more
likely motivated by a discriminatory reason.
(Id. at p. 69.)

Appellant devotes much of his
appellate briefing to explaining why all the reasons given for terminating him
were illogical, weak, or lacked merit, and why he was in fact a good
employee. To avoid summary judgment
where an employer has provided a legitimate, nondiscriminatory reason for an
employment decision, an employee “can not ‘simply show the employer’s decision
was wrong, mistaken, or unwise. Rather,
the employee “ ‘must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could
rationally find them “unworthy of credence,” [citation], and hence infer “that
the employer did not act for the [. . . asserted]
non-discriminatory reasons.” [Citations.]’ [Citations.]”
[Citation.]’ [Citation.]” (Morgan,
supra, 88 Cal.App.4th at p. 75,
original italics.)

Even if we accept appellant’s
argument that his employer was unwise in terminating his employment, he has
demonstrated no weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the reasons for firing him that justified going to trial
on his retaliation claim. (>Morgan, supra, 88 Cal.App.4th at p. 75.) In fact, many of his arguments, such as the
one that respondent Cudaback “misrepresented” facts when he provided feedback
about appellant’s performance, are unsupported by any citation to the record,
and we may therefore treat them as waived.
(Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246.)

We
also reject appellant’s argument that there were triable issues of fact because
respondents somehow failed to comply with portions of the University of
California’s personnel policies, of which this court took judicial notice,
along with the university’s whistleblower protection policy. Even though this court has taken judicial notice of the relevant
policies, we need not give effect to such evidence, because appellant did not
present them below to support an argument he belatedly asserts in his reply
brief—namely, that the absence of a written performance
evaluation created a triable issue of material fact. (Doers v. Golden Gate
Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) “As a general rule, documents not before the
trial court cannot be included as a part of the record on appeal. [Citation.]
Although a reviewing court may take judicial notice of matters not
before the trial court . . . , the reviewing court need not
give effect to such evidence.” (Ibid.) In any event, an employer who has asserted a
facially valid and specific basis for an employment termination has no
additional burden to demonstrate the “objective fairness” of the employment
termination procedures used. (Loggins
v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1111 [affirming
grant of summary judgment].)

Finally,
appellant also claims that respondents Lew and
Tahmassian somehow committed perjury when they stated, in declarations
supporting Tahmassian’s motion to quash service of summons for lack of personal
jurisdiction, that associate chancellor Tahmassian was not involved in the
decision to terminate appellant, and it is not normal protocol to involve the
associate vice chancellor of research in releasing a probationary radiation
safety specialist. Appellant directs us
to no evidence in the record to contradict those statements. Appellant stated in his declaration that
during his second meeting with Eaton, Eaton told appellant that he had spoken
with Tahmassian, who said he “ ‘thought the world’ ” of Lew. However, this is insufficient to show that
Eaton shared appellant’s specific safety concerns with Tahmassian, or that
Tahmassian had anything to do with the subsequent decision to fire appellant.href="#_ftn3" name="_ftnref3" title="">[3] It is true that respondents’ counsel stated
at the hearing on the summary judgment motion that “the way things are set up
at UCSF, you cannot separate somebody during their probationary period without
getting the approval [up] the chain of command.
That is required for that to happen.”
Counsel did not state that Tahmassian (as opposed to Eaton, who
acknowledged that he agreed to appellant’s termination after the decision to
fire him had been made) approved the decision.
In any event, counsel’s statements were not evidence.

Because respondents produced
substantial evidence that appellant was fired for a legitimate,
nondiscriminatory reason, and appellant provided insufficient evidence that his
termination was in fact the result of retaliation, appellant failed to raise a
triable issue of fact.

3.
Reliance on Palmer v.
Regents of University of California

Appellant
also argues that the judgment must be reversed because the trial court
improperly relied on Palmer v. Regents of University of California, supra,
107 Cal.App.4th 899 in its order granting summary judgment. Palmer
held that a common law cause of action for discharge in violation of public
policy under Tameny v. Atlantic Richfield
Co. (1980) 27 Cal.3d 167 was not properly asserted against the
Regents. (Palmer at pp. 902, 909.)
In their moving papers, respondents argued that, “[t]o the extent that”
appellant was asserting a Tameny
claim, the Regents was immune from such claims, as explained in >Palmer.
Appellant argued in his opposition that his claims were statutory, and
respondents’ counsel acknowledged at the hearing on the motion that >Palmer thus did not apply, but that
appellant’s statutory claims failed in any event.

The trial court’s order granting
summary judgment, which was prepared by respondents’ counsel, stated that
respondent Regents was immune from liability pursuant to Palmer. Because the trial
court’s ruling on appellant’s statutory claims was legally correct, we will not
reverse the judgment merely because the trial court erred in its reliance on an
inapposite case. (>People v. Smithey (1999) 20 Cal.4th 936, 972
[legally correct ruling will not be reversed merely because trial court erred
in its reasoning]; Morgan, >supra, 88 Cal.App.4th at p. 67
[appellate court not bound by trial court’s reasons or
rationales].)

4.
Statement of reasons

Appellant also claims that the trial
court failed to comply with Code of Civil Procedure section 437c,
subdivision (g), which provides that upon the grant of a motion for
summary judgment on the ground that there is no triable issue of material fact,
the trial court “shall, by written or oral order, specify the reasons for its
determination. The order shall
specifically refer to the evidence proffered in support of, and if applicable
in opposition to, the motion which indicates that no triable issue
exists.” In concluding that there was no
triable issue of fact that appellant’s termination was the result of
retaliation, the trial court stated that “the evidence is clear that his
termination was based solely on legitimate performance issues and that there is
no evidence that these reasons were pretextual.” The trial court certainly could have pointed
to more specific evidence to support its ruling, such as the feedback Lew
received from appellant’s coworkers, and Lew’s personal observations that
appellant wore protective gear in inappropriate settings and refused to attend
various staff meetings.

Even assuming arguendo that the
trial court’s order did not sufficiently identify evidence in support of
granting summary judgment, the failure to comply with Code of Civil Procedure
section 437c, subdivision (g) is not automatically grounds for
reversal. (Unisys Corp. v. California Life & Health Ins. Guarantee Assn.
(1998) 63 Cal.App.4th 634, 640.) Any
failure to state reasons for granting summary judgment is harmless where, as
here, an appellate court’s independent review reveals that the moving party was
entitled to summary judgment because there was no evidence sufficient to raise
a triable issue of fact. (>Byars v. SCME Mortgage Bankers, Inc.
(2003) 109 Cal.App.4th 1134, 1146-1147.)

5.
Oral evidentiary objections

We also reject appellant’s argument
that the judgment should be reversed because the trial court did not permit him
to object to evidence at the hearing on respondents’ motion for summary
judgment. Appellant stated at the hearing: “About the contention that about [>sic] Keith Cudaback, he—if you look at
his declaration and the evidence that was presented and the evidence that comes
with the—that I submitted with the complaint, the original evidence that came
through the complaint, you see that he states that, first of all—well,
actually, I should have—I wanted to object to some of their evidence. [¶] I can still do that?” The trial court responded, “No. That time is up for that. You should have done that sooner. Go ahead.”
Appellant thereafter briefly objected that respondent Cudaback’s
declaration contained hearsay, then proceeded to argue why Cudaback was liable
even though he did not have the authority to fire appellant.

Appellant contends that the trial
court erred in preventing him from making oral objections at the hearing. (Cf. Code Civ. Proc., § 437c,
subd. (d) [objections made at hearing].)
In his opening brief, he does not identify any specific evidentiary objection that he was prevented from making,
let alone why the trial court should have ruled in his favor on such an
objection. (Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956 [“ ‘The absence of cogent href="http://www.mcmillanlaw.com/">legal argument or citation to authority allows
this court to treat [a] contention as waived’ ”].)

For the first time in his reply
brief, appellant identifies specific evidentiary objections to respondents’
evidence. “Points raised in the reply
brief for the first time will not be considered, unless good reason is shown
for failure to present them before.” (>Campos v. Anderson (1997) 57 Cal.App.4th
784, 794, fn. 3.) Having failed to
raise most of the specific objections with the trial court or in his opening
brief, appellant has “doubly waived” the objections. (Heiner v.
Kmart Corp. (2000) 84 Cal.App.4th 335, 351.)

In sum, the trial court did not err
in granting summary judgment for respondents.

>B.
Motion to Disqualify.

Appellant also challenges the trial
court’s denial of his motion to disqualify the trial judge. At the start of the hearing on respondents’
motion for summary judgment, appellant stated that he was making an oral motion
for recusal of the trial judge, pursuant to Code of Civil Procedure section 170.6. Appellant stated that he had concluded, after
reading the trial court’s tentative ruling, that the judge was biased against
him. The trial court denied the request
as untimely, a ruling that appellant challenges on appeal.

The determination of the
disqualification of a judge may be reviewed only by a writ of mandate, which is
the exclusive method of obtaining review of a denial of a disqualification
motion. (Code Civ. Proc., § 170.3,
subd. (d); People v. Hull (1991)
1 Cal.4th 266, 269, 276.) Because
appellant did not seek review by way of a writ petition, he forfeited his claim
of error.

III.

Disposition

The judgment is affirmed. Respondents shall recover their costs on
appeal.















_________________________

Sepulveda,
J.*





We concur:





_________________________

Ruvolo, P.J.





_________________________

Reardon, J.























* Retired Associate Justice of the Court of
Appeal, First Appellate District, Division 4, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.