Paterno v. Superior Court

Opinion

In 1985, the Legislature amended Code of Civil Procedure section 170.6, subdivision (a)(2)^[1] (hereafter section 170.6(a)(2)),^[2] to permit a party to make a peremptory challenge when the same trial judge is assigned to conduct a “new trial” after a reversal on appeal. (Stats. 1985, ch. 715, § 1, p. 2350; see Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572 , 575 [ 284 Cal.Rptr. 495 ] (Stegs).) The amendment goes on to provide that the right may be exercised regardless of whether the party has previously used a peremptory challenge, as long as the challenge is made within 60 days after notification of the judge’s reassignment.

In this writ proceeding, we are called upon to construe the term “new trial” as it appears in section 170.6(a)(2). We will conclude that because the hearing to be conducted by the trial judge after our remand does not require a reexamination of either law or fact, it is not a new trial within the meaning of the statute. We shall therefore deny the writ.

First, the challenge was not timely under California Rules of Court, rule 1515,^[3] which requires any peremptory challenge to a judge assigned to hear a coordination proceeding to be made within 20 days of the assignment. According to Judge Golden, section 170.6(a)(2) cannot trump the 20-day deadline specified in rule 1515 because the Judicial Council, under the authority granted it by the Legislature to make rules applicable to coordination proceedings (§ 404.7), has provided that its coordination rules apply notwithstanding any conflict with other provisions of law applicable to civil actions (rule 1504(a)).

A second reason why the judge felt section 170.6(a)(2) did not apply was because it was limited to situations where the prior judge was assigned to conduct a “new trial.” Here, there had been no assignment to conduct a new trial, and “the conduct of a new trial on the matter is not what the coordination trial judge in this case will be doing.”

On April 9, 2004, we granted an alternative writ to review the propriety of Judge Golden’s order.

DISCUSSION

Judge Golden’s principal reason for striking the peremptory challenge was that the provisions of section 170.6(a)(2) were preempted by and must yield to the rules for coordination proceedings promulgated by the Judicial Council, and more specifically rule 1515. We disagree.

Pursuant to section 404.7, the Legislature has authorized the Judicial Council to provide by rule the procedures for coordination of civil actions. In 1974, pursuant to this authorization, the Judicial Council adopted Rules for Coordination of Civil Actions (rule 1501 et seq.; see Industrial Indemnity Co. v. Superior Court (1989) 214 Cal.App.3d 259 , 262 [ 262 Cal.Rptr. 544 ] (Industrial Indemnity).)

Rule 1515 of the coordination rules provides that “[a]ny motion or affidavit of prejudice regarding an assigned judge shall be submitted in writing to the assigned judge within 20 days after service of the order assigning that judge to the coordination proceeding. All plaintiffs or similar parties in the included or coordinated actions shall constitute a side and all defendants or similar parties in such actions shall constitute a side for purposes of applying Code of Civil Procedure section 170.6.” (Italics added.)

Appellate courts have held that where there is a conflict between rule 1515’s peremptory challenge provisions and other aspects of section 170.6, rule 1515 prevails. Thus, in Philip Morris Inc. v. Superior Court (1999) 71 Cal.App.4th 116 , 123-125 [ 83 Cal.Rptr.2d 671 ], a party’s peremptory challenge to a newly assigned coordination judge, which was timely under rule 1515, was permitted even though that party had already exercised one such challenge in related precoordination proceedings. Farmers Ins. Exchange v. Superior Court (1992) 10 Cal.App.4th 1509 , 1511-1512 [ 13 Cal.Rptr.2d 449 ] and Stone v. Superior Court (1994) 25 Cal.App.4th 1144 , 1146-1147 [ 31 Cal.Rptr.2d 56 ] arrive at similar results under slightly different facts.

In Industrial Indemnity, supra, 214 Cal.App.3d at pages 262-264, the court held that add-on plaintiffs who came into a coordination proceeding long after the coordination judge was assigned could not exercise a section 170.6 peremptory challenge. The court declared that the effect of rule 1515 is to “exclude add-on parties from the right to peremptorily challenge the coordination trial judge.” (214 Cal.App.3d at p. 263.)

As petitioners point out, rule 1515 was promulgated in 1974, but section 170.6(a)(2) did not come along until 1985.^[4] Since the latter section was not even on the Legislature’s radar screen when the Judicial Council promulgated its rules for coordination challenges, we must decide whether rule 1515 impliedly conflicts with the parties’ right to challenge a reassigned judge after reversal on appeal, as provided for in section 170.6(a)(2).

With its 1985 amendment to the statute, the Legislature permitted a peremptory challenge to a trial judge following a reversal on appeal “if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” (§ 170.6(a)(2), italics added.)^[5] The 1985 amendment was enacted at a time when it was common to reassign the trial judge to the remanded case, in order “to address the ‘concern . . . that a judge who had been reversed might prove to be biased against the party who successfully appealed the judge’s erroneous ruling at the original trial.’ [Citation.] Accordingly, ... a party may disqualify the former judge reassigned to the case if the case involves an actual retrial of one or more issues.” (Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762 , 765 [ 97 Cal.Rptr.2d 121 ] (Stubblefield), quoting Stegs, supra, 233 Cal.App.3d at pp. 575-576.)

A. Civil Cases Interpreting Section 170.6(a)(2)

Although section 170.6(a)(2) does not define the term “new trial,” intermediate appellate courts have interpreted it broadly. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2003) f 3:253, p. 3-65.) Thus, in Stegs, the trial court in a partnership dissolution action found a breach of the partnership agreement and gave judgment for one of the partners. The Court of Appeal reversed in part due to erroneous evidentiary rulings and remanded “ ‘to afford defendants [petitioners] an opportunity to present evidence as to the circumstances under which the parties entered into the written partnership agreement.’ ” (Stegs, supra, 233 Cal.App.3d at p. 574.) When the case was reassigned to the same judge, counsel filed a motion to disqualify him under section 170.6(a)(2), which was disallowed. Deeming that the situation fell within the purpose of the statute, Stegs held that the challenge should have been honored, even though the retrial was limited to one issue. (233 Cal.App.3d at p. 576.)

In Hendershot v. Superior Court (1993) 20 Cal.App.4th 860 [ 24 Cal.Rptr.2d 645 ] (Hendershot), the judge in a bench trial gave judgment against a corporation and Hendershot individually. The Court of Appeal affirmed as to the corporation but reversed the judgment against Hendershot.

Stubblefield features perhaps the most liberal interpretation of section 170.6(a)(2) to date, because in that case there was no contested trial, but instead a summary judgment granted in the defendants’ favor. The appellate court reversed in part and remanded for further proceedings. When the case was assigned to the same judge, Stubblefield filed a peremptory challenge. (Stubblefield, supra, 81 Cal.App.4th at p. 764.) The Court of Appeal had to confront the fact that its reversal necessitated not a “new trial” but a “first trial” at best. (Id. at p. 765.) The court leapt this hurdle in the following language: “Although there was no full trial of the matter in this case, a final judgment was entered. Our partial reversal requires that the case be reopened, with an actual trial if necessary; furthermore, our partial reversal reflected our view that the trial judge erred in a crucial decision of law. Assuming, as the Legislature did, that a judge may react with a certain pique to the negative treatment of his or her decisions by an appellate court, this situation is obviously one in which the potential for bias exists. Given the policy reasons for the 1985 amendments to Code of Civil Procedure section 170.6, it is plain that Stubblefield had the right to disqualify Judge Warner.” (Id. at p. 766, fn. omitted.)

The last civil case of note is Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761 [ 132 Cal.Rptr.2d 400 ] (Pfeiffer), wherein a party who unsuccessfully sought attorney fees in connection with a SLAPP^[6] motion obtained a reversal and remand for reconsideration of the fee issue. (Pfeiffer, at pp. 763-764.) In allowing a postappeal challenge to the reassigned judge, the same court that decided Stegs gave the following elaboration on the

Regardless of subject matter however, section 656 leaves no doubt that a new trial must consist of a “reexamination.” In order to conduct a reexamination, a court must revisit some factual or legal issue that was in controversy in the prior proceeding. All of the civil appellate decisions we have reviewed here are consistent with this principle. (Stegs, supra, 233 Cal.App.3d at p. 576 [“trial court was called upon to retry the case, albeit on a single issue”]; Hendershot, supra, 20 Cal.App.4th at p. 865 [on remand, alter ego issue “will be reexamined”]; Stubblefield, supra, 81 Cal.App.4th at p. 766 [“Our partial reversal requires that the case be reopened, with an actual trial if necessary” (italics added)]; Pfeiffer, supra, 107 Cal.App.4th at pp. 764, 768 [reversal and remand required trial judge to reconsider the merits of a SLAPP motion in order to determine the propriety of a fee award].)

In the present case, our remand requires no reopening or reconsideration of issues litigated in prior proceedings conducted by Judge Golden. All liability issues have been fully and finally settled by our decision in Paterno II. The only task the judge must complete is to conduct a trial to determine the amount of damages petitioners have suffered as a result of the flood, and to enter judgment accordingly. Judge Golden’s function at this point is not to go back and revisit any factual or legal terrain that has thus far been traversed, but to go forward with a trial on the issue of damages. While the analogy is not perfect, the judge’s assignment after remand here bears considerable resemblance to the postverdict sentencing hearing conducted by the trial judge in Peracchi, supra, 30 Cal.4th 1245 .

Petitioners’ construction of the statute would jettison the reexamination requirement, thereby rendering a central element of the term “new trial” meaningless. This is a result we are “constrained to avoid.” (Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155 , 169 [ 2 Cal.Rptr.2d 536 , 820 P.2d 1046 ].) Had the Legislature intended that a new peremptory challenge be permitted every time there was a contested hearing following reversal on appeal, it could easily have so provided. Indeed, as Peracchi points out, a prior version of the 1985 bill did contain such language, but was rejected in favor of the “new trial” proviso.^[9]

Our decision today is compatible with the Legislature’s intent in enacting section 170.6(a)(2). Like the California Supreme Court, we find no basis for supposing the Legislature intended “that a section 170.6 challenge will lie whenever the potential exists that a judge who is called upon to exercise discretion might react adversely to a reversal.” (Peracchi, supra, 30 Cal.4th at p. 1262.) Assuming that the lawmakers were concerned about a situation where a trial judge might react negatively to having his or her rulings reversed on appeal, it is also reasonable to conclude that the potential for bias is substantially diminished where the proceeding to be conducted on remand steers clear of any issues upon which the appellate court has ruled. By inserting the term “new trial” in section 170.6(a)(2), the Legislature made it plain that a new peremptory challenge following a reversal on appeal will only be permitted where the court is required to reexamine issues litigated in the prior proceeding.