But your joy turns to dismay as the presiding judge orders your case assigned to the very same judge whose decision the Court of Appeal just reversed. You pull out the automatic judicial-disqualification statute, Code of Civil Procedure section 170.6(2). You see that the Legislature has permitted you to file a peremptory challenge after a reversal of a trial court's "decision" or "final judgment." But, you discover, you may file that challenge only if the trial judge in the prior proceeding has been assigned to conduct a "new trial on the matter." Uh oh, you think. I'm being assigned for a "first trial," not a "new trial," so I may be toast, right?
Wrong. A few months ago, the 5th District Court of Appeal held in People v. Superior Court (Maloy), 91 Cal. App. 4th 391 (2001), that the peremptory judicial-disqualification statute applies when the reversal will result in a first, rather than a new, trial. To understand why this is a logical interpretation of the statute, it is necessary to outline the history of the statute as it applies to a remand after a successful appeal.
Section 170.6 guarantees a litigant a limited right to disqualify a judge without showing actual prejudice. The purpose of the statute is to safeguard the right to fairness in the proceedings, ensure confidence in the judiciary and avoid the suspicion that might arise when a litigant believes, but cannot prove, that a judge is biased. Truck Ins. Exch. v. Superior Ct., 67 Cal. App. 4th 142 (1998); Solberg v. Superior Ct., 19 Cal. 3d 182 (1977).
Courts construe the peremptory-challenge statute liberally; the trend is to allow the challenge unless the litigant plainly cannot meet the deadlines and other requirements in the statute. People v. Superior Ct. (Williams), 8 Cal. App. 4th 688 (1998). Thus, the right to disqualification is "automatic" in the sense that the litigant's asserted good-faith belief in prejudice is sufficient. McCartney v. Commission on Judicial Qualifications, 12 Cal. 3d 512 (1974).
The peremptory-challenge right is not absolute, however. To limit the potential for abuse, the Legislature restricted each party to only one such challenge per case and required that the party file the challenge before trial. § 170.6(2)-(3).
These limitations left successful appellants who were returning to the trial court in a potentially uncomfortable situation. Normally, a case reversed and remanded for retrial was assigned to the judge who presided over the first trial, apparently on the theory that the judge was familiar with the case and in the best position to resolve remaining issues. Stegs Investments v. Superior Ct., 233 Cal. App. 3d 572 (1991). But the reassignment raised the concern that a judge who had been reversed might harbor a bias against a party who obtained a reversal of that judge's erroneous ruling on appeal. Stegs.
To address that concern, the Legislature twice amended section 170.6. First, in 1985, the Legislature created an exception to the "before trial" deadline for such challenges and permitted a successful appellant to file a peremptory challenge on remand when the same trial judge is assigned to a case upon reversal and remand for a "new trial."
But because that amendment did not resolve the predicament of a litigant who had already used a section 170.6 challenge and later obtained a reversal on appeal, the Legislature again amended the statute in 1998. Under that amendment, if a judge reversed on appeal is reassigned to the matter after remand, then the party who successfully pursued the appeal may peremptorily challenge that judge within 60 days of notice of that judge's assignment, even if the party already has used its one peremptory challenge. § 170.6(2).
Although the new amendment's plain language resolved many parties' concerns, cases remanded after reversal of judgment based on a pretrial order or decision presented a statutory-construction conundrum. Section 170.6(2) permits a challenge following reversal if the judge in the prior proceeding is assigned to conduct a "new trial."
But judges often terminate cases by pretrial rulings that occur before trial — for example, a dismissal following a successful demurrer, a judgment on the pleadings or a summary judgment. Hence, the remand would not result in a new trial, but in a first trial.
Until last year, it was unclear whether a successful appellant could file a peremptory challenge after remand under those circumstances. That was the situation that confronted the 4th District, Division Two, in Stubblefield Construction Co. v. Superior Ct., 81 Cal. App. 4th 762 (2000).
In Stubblefield, after the plaintiff exercised its peremptory challenge under section 170.6, the new judge granted summary judgment for the defendant. The Court of Appeal reversed in part and remanded. After the parties learned that the case had been assigned to the same judge who had granted summary judgment, the plaintiff filed a second peremptory challenge. But the defendant argued that because the original judgment was a summary judgment, the remand would not result in a "new trial," so section 170.6(2) would not apply. The trial court agreed.
The Court of Appeal reversed. It explained that the courts have given a broad interpretation to the phrase "new trial" — defined in Code of Civil Procedure section 656 as a "reexamination of an issue of fact in the same court after a trial and decision by a jury, court, or referee." For example, they have permitted a party to move for a new trial after summary judgment, which does not involve a trial.
Thus, Stubblefield held, a similarly broad interpretation of "new trial" under section 170.6(2) was justified. The court explained that result was consistent with the statute's purpose and allowed for the "human" possibility that "a judge may react with a certain pique to the negative treatment of his or her decisions by an appellate court," whether the judge rendered that decision during a trial or in a summary judgment proceeding.
Although Stubblefield should have laid to rest further quibbling about whether a challenge is permissible on remand after a pretrial ruling, the issue arose a year later in Maloy. There, the trial court dismissed a criminal complaint on statute-of-limitations grounds. The Court of Appeal reversed, finding the action timely. The prosecution then refiled the complaint, and Jesse Maloy again moved to dismiss, this time on the ground that the statute under which the prosecution was brought was unconstitutional. The trial court granted the motion.
The Court of Appeal reversed a second time and remanded the matter to the same judge who had granted the dismissals. The prosecution then filed a peremptory challenge against the judge, who denied it. The judge reasoned that because the previous judgments were based on pretrial dismissals, the remand was not for a "new trial," but for a "first" trial, and the challenge was, therefore, unavailable. The judge distinguished Stubblefield on the ground that the summary judgment there was a decision on the merits; he stated that he had not considered the merits in his decisions so that "a new trial would not occur" on remand.
The 5th District rejected this reasoning and disagreed that Stubblefield was distinguishable. The court explained that the potential for bias by a judge who has been reversed on appeal exists to the same extent after reversal of a dismissal based on the statute of limitations or unconstitutionality as it exists after a summary judgment or trial.
Noting, as Stubblefield did, that a "new trial" is available after a summary judgment or dismissal after a demurrer or a motion to dismiss, the Maloy court believed that that broad construction supported an extension of section 170.6 to pretrial, non-merits-based decisions like the dismissals at issue there. Moreover, Maloy noted, the cases support a broad construction of section 170.6 to effectuate its purpose.
The court pointed to Stegs (party may timely disqualify trial judge even if new trial limited to single issue); Pandazos v. Superior Ct., 60 Cal. App. 4th 324 (1997) (party may exercise peremptory challenge after appeal when first trial was by jury rather than by judge, even though statute applied only to trial court "decisions"); and Overton v. Superior Ct., 22 Cal.App.4th 112 (1994).
Finally, Maloy explained, because the trial court's ruling defeated the clear policy behind the 1985 amendment to section 170.6(2), the trial court abused its discretion in denying the prosecution's peremptory challenge.
Taken together, Stubblefield and Maloy finally should put to rest any doubt about the reach of the appellate-remand exception to the "one shot" peremptory challenge in section 170.6. Parties no longer have to worry that they must appear before a judge who may be predisposed against them because the judge's ruling has been reversed. Now, parties can make a peremptory challenge — so long as it is filed within 60 days after remand — when the same judge is assigned to a case after remand, whether or not the remand will result in a "new trial."