Hendershot v. Superior Court

Decision Date29 November 1993
Docket NumberNo. B076367,B076367
Citation24 Cal.Rptr.2d 645,20 Cal.App.4th 860
CourtCalifornia Court of Appeals Court of Appeals
PartiesJohn HENDERSHOT, Jr., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, PACIFIC SOUTHWEST INVESTMENTS, INC., Real Party in Interest.

Page 645

24 Cal.Rptr.2d 645
20 Cal.App.4th 860
John HENDERSHOT, Jr., Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent,
PACIFIC SOUTHWEST INVESTMENTS, INC., Real Party in Interest.
No. B076367.
Court of Appeal, Second District, Division 4, California.
Nov. 29, 1993.
Review Denied Feb. 24, 1994.

Page 646

[20 Cal.App.4th 861] Meserve, Mumper & Hughes, L. Allan Songstad, Jr. and William D. Coffee, Irvine, for petitioner.

No appearance for respondent.

Kendall & Buckner, Matthew Scott Duncan and William D. Buckner, Santa Ana, for real party in interest.

EPSTEIN, Associate Justice.

This writ proceeding was brought after the respondent court refused to honor a motion to disqualify a trial judge, filed under Code of [20 Cal.App.4th 862] Civil Procedure section 170.6. 1 The motion was made after we reversed an earlier judgment and remanded the case for an evidentiary hearing and determination of a factual issue. We issued an alternative writ and, following full briefing and oral argument, we now grant the relief requested.

FACTUAL AND PROCEDURAL SUMMARY

The underlying trial arose out of a suit for breach of contract by Pacific Southwestern Investments, Inc. (PSI). Three defendants were named in the action: Shadowood Development Co., a partnership; Shadowood Corporation; and John E. Hendershot, Jr. A bench trial was held before Commissioner Anita Rae Shapiro, sitting as a judge pro tempore by stipulation of the

Page 647

parties. (Cal. Const., art. VI, § 21.) The court awarded judgment against the corporation for $35,012 based on breach of contract. Judgment was rendered against Hendershot for that amount, based on intentional misrepresentation, and for $35,000 punitive damages. The corporation and Hendershot appealed.

While the appeal was pending, PSI undertook collection procedures that resulted in Hendershot paying the entire amount of the judgment against him, including interest and costs.

We ultimately reversed the judgment as to Hendershot, and affirmed it with respect to the award against the corporation (No. B055935). Hendershot then applied for an order of restitution pursuant to section 908, alleging that he had paid the judgment against him during the pendency of the appeal and was entitled to an order that PSI make restitution. We noted that "[t]here are questions of fact to be resolved by the trial court, including whether amounts paid by Hendershot were on his own behalf or on behalf of Shadowood Corporation." Exercising our authority under section 908, we declined to make that determination at our level, and instead remanded the case to the trial court for resolution of the factual issues.

On May 4, 1993, Hendershot's counsel filed a motion for a restitution order in the trial court. Upon inquiry with that court, he learned that the case would be reassigned to Commissioner Shapiro. He filed a peremptory challenge under section 170.6 on May 19, 1993. PSI contested the challenge, arguing that it was untimely. A hearing on that issue was held on June 16, 1993, at which time the challenge was rejected as untimely. The case was set for trial on the remanded issues.

Hendershot then sought writ relief and a stay of proceedings. In his application, he pointed out that a claim of error in denial of a peremptory [20 Cal.App.4th 863] challenge can only be reviewed by writ. (§ 170.3, subd. (d); People v. Hull (1991) 1 Cal.4th 266, 276, 2 Cal.Rptr.2d 526, 820 P.2d 1036.) We issued an alternative writ and stayed proceedings pending our further order.

DISCUSSION

Prior to 1986, a case reversed and remanded for a full or partial new trial was normally assigned to the judge who heard the original trial, apparently on the theory that that judge was familiar with the case and in a better position to resolve the remaining issues. (See Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575, 284 Cal.Rptr. 495; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562, 258 Cal.Rptr. 75.) The peremptory challenge statute was amended in 1985 to deal with this practice. This amendment, operative January 1, 1986, added a new provision to subdivision (2) of section 170.6: "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. The motion shall be made within 60 days after the party...

To continue reading

Request your trial
27 cases
  • Peracchi v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • December 6, 2001
    ...was called upon to retry the case, albeit on a single issue." (Id. at p. 576, 284 Cal. Rptr. 495.) In Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 863, 24 Cal.Rptr.2d 645, the Second District Court of Appeal followed Stegs and held that a remand order for resolution of factual is......
  • State Farm v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • August 9, 2004
    ...170.6." (Stegs, supra, 233 Cal.App.3d at p. 576, 284 Cal.Rptr. 495, italics added; accord, Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 863-864, 24 Cal.Rptr.2d 645 (Hendershot); Overton v. Superior Court (1994) 22 Cal.App.4th 112, 114-115, 27 Cal.Rptr.2d 274 (Overton); Stubblefie......
  • Davcon, Inc. v. Roberts & Morgan
    • United States
    • California Court of Appeals Court of Appeals
    • July 30, 2003
    ...897; Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762, 97 Cal.Rptr.2d 121; Hendershot v. Superior Court (1993) 20 Cal. App.4th 860, 24 Cal.Rptr.2d 645; Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 284 Cal.Rptr. 495.) In each of these cases, the ori......
  • Paredes v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • December 22, 1999
    ...(Nissan Motor Corp. v. Superior Court, supra, 6 Cal.App.4th at pp. 154-155, 7 Cal.Rptr.2d 801; accord, Hendershot v. Superior Court (1993) 20 Cal. App.4th 860, 865, 24 Cal.Rptr.2d 645.) D. The present case does not fit squarely within the four corners of any of the cases discussed above. As......
  • Request a trial to view additional results
4 books & journal articles
  • Disqualification of judges and judicial conduct
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...was partially reversed on appeal and remanded for a factual hearing on entitlement to restitution. Hendershot v. Superior Court (1993) 20 Cal. App. 4th 860, 865, 24 Cal. Rptr. 2d 645. When the proceeding in the trial court did not address the merits or terminate the action, there was no tri......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...§22:150 Hemingway v. Superior Court (2004) 122 Cal. App. 4th 1148, 19 Cal. Rptr. 3d 363, §19:110 Hendershot v. Superior Court (1993) 20 Cal. App. 4th 860, 24 Cal. Rptr. 2d 645, §19:110 - HE -  CaliforniaObjections B-26 Henderson v. Harnischfeger Corp. (1974) 12 Cal. 3d 663, 117 Cal. Rptr. ......
  • Other pretrial motions
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • March 30, 2022
    ...who handled the first trial, so long as it is made within 60 days of the notice of assignment ( Hendershot v. Superior Court (1993) 20 Cal.App.4th 860). The party who filed the notice of appeal is entitled to the after-reversal-on-appeal challenge even if that party had previously filed ano......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • March 30, 2022
    ...7 Cal.App.4th 52, §§11:164, 11:220 Hemingway v. Superior Court (2004) 122 Cal.App.4th 1148, §8:12.9 Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, §8:12.8 Henricksen v. ConocoPhillips Co. , 605 F.Supp.2d 1142, 1167-1168 (E.D.Wash. 2009), §9:30.3 Henry v. County of Shasta 132 F3d 51......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT