Matthews v. Superior Court

Opinion

Gwendolyn Matthews (Matthews) petitions for a writ of mandate after the court denied her peremptory challenge to a judge under Code of Civil Procedure^[1] section 170.6. Matthews had previously exercised one challenge pursuant to section 170.6 and attempted to exercise another challenge after the second trial judge granted a summary judgment motion and was partially reversed on appeal. The issue presented is whether a party is entitled to more than one peremptory challenge if the case is reversed on appeal and reassigned to the same trial judge after remand. We

Background

Matthews is an employee of San Diego Gas & Electric Company, Inc. (SDG&E) which hired NARCORP to conduct an undercover investigation of the reported sale and use of illegal drugs by employees. At the conclusion of the investigation, SDG&E suspended Matthews as well as other employees and issued two written statements which suggested suspended employees had engaged in the use or sale of drugs. Matthews was later reinstated with backpay.

Matthews sued SDG&E and NARCORP for defamation, false imprisonment, and intentional and negligent infliction of emotional distress. Matthews exercised a peremptory challenge to Judge Robert O’Neill pursuant to section 170.6. The case was assigned to Judge Judith McConnell who granted the defendants’ motion for summary judgment and dismissed the complaint. On appeal this court reversed as to the defamation cause of action against both SDG&E and NARCORP and as to the intentional infliction of emotional distress cause of action against NARCORP.^[2]

Upon remand the case was reassigned to Judge McConnell. Matthews filed a peremptory challenge to disqualify Judge McConnell relying on a provision in section 170.6, subdivision (2) that allows a challenge following reversal on appeal if the same trial judge is assigned to conduct a new trial. Judge McConnell denied the motion based on a prohibition contained in section 170.6, subdivision (3) that a party under “no circumstances” shall be permitted to make more than one such challenge in the same action.

Upon Matthews’s petition for writ of mandate, this court issued an order to show cause, stayed the matter and heard oral argument.^[3]

Discussion

Section 170.6, originally enacted in 1957, provides that a judge, commissioner or referee shall not try or hear any matter in any action or

The section further provides that: “. . . Under no circumstances shall a party or attorney be permitted to make more than one such motion in any one action or special proceeding pursuant to this section . . . .” (§ 170.6, subd. (3).) In 1985 the Legislature amended the section to provide: “A motion under this paragraph may be made following reversal on appeal of a trial court’s decision if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” (§ 170.6, subd. (2); Stats. 1985, ch. 715, § 1, p. 2351.) We must determine how these two provisions interact if a party has disqualified one trial judge under the section and later attempts to disqualify a second trial judge after the second judge has been reversed on appeal.

The parties have not cited nor have we located any California law which permits two peremptory challenges in one action.^[4] Moreover, a peremptory challenge may not be interposed when a subsequent proceeding is a continuation of an earlier action. “A subsequent proceeding is a continuation of an earlier action rather than a separate and independent action if it involves ‘substantially the same issues’ and ‘ “matters necessarily relevant and material to the issues involved in the [original] action.” ’ [Citations.]” (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580 , 589 [ 256 Cal.Rptr. 274 ]; see also McClenny v. Superior Court (1964) 60 Cal.2d 677 , 684 [ 36 Cal.Rptr. 459 , 388 P.2d 691 ].)

Here, following reversal and remand to the trial court for further proceedings on the defamation and intentional infliction of emotional distress causes of action, not only “substantially the same issues” were to be heard in the trial court but rather exactly the same issues as relating to the surviving two causes of action were to be considered. Under the section 170.6, subdivision

Matthews argues the amendment should be liberally construed to carry out its purpose of preventing potential bias. We agree section 170.6 should be liberally construed “to effect its objects and to promote justice.” (Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150 , 154 [ 7 Cal.Rptr.2d 801 ].) However, the peremptory challenge under section 170.6 provides an “extraordinary right” to disqualify a judge and is limited by the terms of the statute. (Ibid.) “[C]ourts . . . have been vigilant to enforce the statutory restrictions on the number and timing of motions permitted. ...” (Solberg v. Superior Court (1977) 19 Cal.3d 182 , 197-198 [ 137 Cal.Rptr. 460 , 561 P.2d 1148 ], and cases cited therein; City of Hanford v. Superior Court, supra, 208 Cal.App.3d at p. 590, and cases cited therein.) The Legislature failed to provide an exception to the prohibition against multiple challenges under the section and we decline to do so by interpretation.^[5]

Matthews additionally argues that the court’s denial of the peremptory challenge denied her equal protection of law guaranteed by the 14th Amendment to the United States Constitution and that the court’s action led to an absurd result. That is, one class of litigants (those who have filed an earlier peremptory challenge) are subjected to potential bias while another class of litigants (those who have not filed an earlier peremptory challenge) are not so subjected. Matthews’s argument rests on her contention that parties who have previously exercised their peremptory challenge are similarly situated to those who have not.

Section 170.6 provides only a limited right and is not a vehicle for disqualifying judges in all situations in which there is the potential for bias.