Akopyan v. Superior Court of L. A. Cnty.

Citation53 Cal.App.5th 1094,268 Cal.Rptr.3d 265
Decision Date24 August 2020
Docket NumberB304957
CourtCalifornia Court of Appeals
Parties Asmik AKOPYAN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Zulma Unzueta, Real Party in Interest.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, San Marino; Packer, O'Leary & Corson, Robert B. Packer and Paul M. Corson, Pasadena, for Petitioner.

No appearance for Respondent.

McMurray Henriks and Yana G. Henriks, Los Angeles, for Real Party in Interest.


Petitioner Asmik Akopyan, M.D., seeks a writ of mandate compelling the trial court to vacate its order granting real party in interest Zulma Unzueta's peremptory challenge to Judge Anthony J. Mohr under Code of Civil Procedure section 170.61 filed after this court conditionally reversed the judgment entered after a jury trial in favor of Dr. Akopyan on Unzueta's claim for medical malpractice. Unzueta argued on appeal the trial court erred in denying the Batson / Wheeler2 motion the court made sua sponte after Dr. Akopyan's attorney exercised peremptory challenges to six Hispanic prospective jurors out of his seven total challenges. We agreed and conditionally reversed for the limited purpose of conducting the second and third steps of the Batson / Wheeler inquiry as to all six challenged Hispanic jurors. ( Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 202, 254 Cal.Rptr.3d 850 ( Akopyan I ).)

Dr. Akopyan contends in his petition that section 170.6, subdivision (a)(2), which authorizes a peremptory challenge following reversal on appeal where the trial court is assigned to conduct a new trial, does not authorize a challenge following a conditional reversal where the remand is for the purpose of requiring the trial court to reconsider a pretrial Batson / Wheeler motion. We agree the trial court has not yet been "assigned to conduct a new trial" on remand under section 170.6, subdivision (a)(2). Therefore, the trial court should have waited to rule on the peremptory challenge until it conducted the Batson / Wheeler inquiry, then granted the disqualification motion only if it ordered a new trial. We now grant the petition.

A. Unzueta's Prior Lawsuit and Appeal

Unzueta filed this action in 2012, alleging Dr. Akopyan committed medical malpractice in the delivery of Unzueta's first child. Unzueta alleged Dr. Akopyan's negligent administration of an epidural injection

resulted in paralysis of her right leg.

On the second day of jury selection, defense counsel exercised four peremptory challenges to excuse prospective jurors R. Medina, J. Quintero, G. Henriquez, and R. Villarreal. That day the jury panel was sworn. The next day, when voir dire continued for the selection of alternate jurors, defense counsel exercised three peremptory challenges to excuse prospective jurors D. Winfrey, D. Zaldana, and A. Marquez, two of whom were Hispanic. Outside the presence of the jury, the trial court made a sua sponte Batson / Wheeler motion, which Unzueta joined. The court then asked defense counsel to justify his peremptory challenges as to Zaldana and Marquez, but not the four Hispanic jurors who had been excused the prior day. The court denied Unzueta's request the court inquire about the prior four jurors, stating "that water is under the bridge." The court denied the Batson / Wheeler motion, finding defense counsel had justified his use of peremptory challenges as to the alternate jurors.

After a trial, the jury returned a special verdict for Dr. Akopyan, finding she was negligent in the care and treatment of Unzueta, but the negligence was not a substantial factor in causing harm to Unzueta.

On appeal, we concluded the trial court erred by failing to require defense counsel to provide his justifications for excusing all six Hispanic prospective jurors, explaining, "Once the trial court found a prima facie showing of group bias, the court was required to elicit from [defense counsel] justifications for each of the six challenges forming the basis for the prima facie showing." ( Akopyan I, supra , 42 Cal.App.5th at p. 217, 254 Cal.Rptr.3d 850.) We remanded for the trial court to require defense counsel to state his reasons for challenging prospective jurors Medina, Quintero, Henriquez, and Villarreal, and then decide in light of the record as to all six jurors whether Unzueta had proved purposeful racial discrimination. ( Id . at p. 223, 254 Cal.Rptr.3d 850.) We instructed the trial court that if it "finds, because of the passage of time or other reason, it is unable to conduct the evaluation, or if any of the challenges to the six Hispanic prospective jurors were based on racial bias, the court should set the case for a new trial. If the court finds defense counsel's race-neutral explanations are credible and he exercised the six peremptory challenges in a permissible fashion, the court should reinstate the judgment." ( Id . at pp. 223-224, 254 Cal.Rptr.3d 850.) In all other respects, we affirmed.

B. Proceedings on Remand

On remand, in a January 29, 2020 minute order, the trial court (Judge Mohr) set a hearing "re: Remand/Remittitur" for February 21, 2020. On February 26 Unzueta filed a motion under section 170.6, subdivision (a)(2), to disqualify Judge Mohr, who had presided over the trial.3 On March 2 the trial court granted Unzueta's disqualification motion, finding the challenge was timely filed and proper because the court on remand was required "to make a factual determination after evidentiary hearing" and potentially a new trial on the merits. The court ordered the matter transferred to Judge John J. Kralik.

On March 16, 2020 Dr. Akopyan filed a petition for writ of mandate directing the trial court to vacate its order accepting Unzueta's peremptory challenge. Following supplemental briefing, on April 15, 2020 we issued an order to show cause why relief should not be granted. Unzueta filed a return, and Dr. Akopyan filed a reply.

A. Standard of Review

"We review questions of statutory construction de novo. Our primary task ‘in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose.’ " ( California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041, 232 Cal.Rptr.3d 64, 416 P.3d 53 ; accord, A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687, 251 Cal.Rptr.3d 423.) To determine whether a conditional reversal and remand for the limited purpose of conducting the second and third steps of the Batson / Wheeler inquiry is a "new trial" within the meaning of section 170.6, subdivision (a)(2), we look first to the language of the statute, which is "the best indication of legislative intent." ( Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253, 135 Cal.Rptr.2d 639, 70 P.3d 1054 ( Peracchi ); see California Building , at p. 1041, 232 Cal.Rptr.3d 64, 416 P.3d 53.) " [W]e do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is a part so that the whole may be harmonized and retain effectiveness." " ( Peracchi , at p. 1253, 135 Cal.Rptr.2d 639, 70 P.3d 1054 ; accord, California Building , at p. 1041, 232 Cal.Rptr.3d 64, 416 P.3d 53.) " "If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." " ( City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616-617, 214 Cal.Rptr.3d 274, 389 P.3d 848 ; accord, Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567, 67 Cal.Rptr.3d 468, 169 P.3d 889 [" ‘When a statute is capable of more than one construction, " [w]e must ... give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.’ " "].)4

B. A Limited Remand To Conduct a Batson/Wheeler Inquiry After Trial Does Not Constitute a "New Trial" Under Section 170.6, Subdivision (a)(2)

" Section 170.6 allows a defendant to bring a motion—supported by an affidavit or declaration—alleging that the assigned judge ‘is prejudiced against a party or attorney’ such that the party or attorney ‘cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge.’ ( [Id. ], subd. (a)(1), (2).) So long as the requirements for filing such a motion are followed, section 170.6 requires a different judge to be assigned in lieu of the originally assigned one. (Id. , subd. (a)(4).)" ( People v. Perez (2018) 4 Cal.5th 421, 439, 229 Cal.Rptr.3d 303, 411 P.3d 490 ; accord, Peracchi, supra , 30 Cal.4th at p. 1248, 135 Cal.Rptr.2d 639, 70 P.3d 1054 [" Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party."].)

Section 170.6, subdivision (a)(2), provides in relevant part, "A motion under this paragraph may be made following reversal on appeal of a trial court's decision, or following reversal on appeal of a trial court's final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. Notwithstanding paragraph (4), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party's attorney has been notified of the assignment."

In Peracchi , a criminal defendant petitioned for a writ of mandate after the trial court denied his disqualification motion under an earlier version of section 170.6, subdivision (a)(2),5 after the...

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