Matthews v. Superior Court

• Decision Date: 06 July 1995
• Docket Number: No. D023190,D023190
• Citation: 42 Cal.Rptr.2d 521,36 Cal.App.4th 592
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Daily Journal D.A.R. 8984 Gwendolyn MATTHEWS, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; NARCORP, et al., Real Parties in Interest.

Page 521

42 Cal.Rptr.2d 521

36 Cal.App.4th 592, 95 Daily Journal D.A.R. 8984

Gwendolyn MATTHEWS, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent NARCORP, et al., Real Parties in Interest.

No. D023190.

Court of Appeal, Fourth District, Division 1, California.

July 6, 1995.

Atkins and Evans, Nelson Atkins, Los Angeles and Daniel Weber, Rancho Cucamonga, for petitioner.

No appearance for respondent.

Paul, Hastings, Janofsky & Walker, Michael A. Hood, Brent R. Bohn, Costa Mesa, C. Larry Davis and Beth Eagleson, San Diego, for real parties in interest.

BENKE, Acting Presiding Justice.

Gwendolyn Matthews (Matthews) petitions for a writ of mandate after the court denied her peremptory challenge to a judge under CODE OF CIVIL PROCEDURE SECTION 170.6¹. 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 conclude the party is limited to one challenge and accordingly deny the petition.

BACKGROUND

Matthews is an employee of San Diego Gas & Electric Company, Inc. (SDG & E) which hired NARCORP to conduct an undercover investigation of 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 special proceeding when a party or an attorney appearing in the action makes a motion supported by an affidavit stating a belief that the judicial officer is prejudiced against the party or attorney. (§ 170.6, subds. (1) & (2); Stats.1957, ch. 1055, § 1, pp. 2288-2289.) If a judge is assigned for all purposes, the section requires a party to file the motion to disqualify within 10 days of the assignment. (§ 170.6, subd. (2).) The section further prohibits a challenge after commencement of the trial or hearing or after a judicial officer has ruled on a pretrial contested issue of fact relating to the merits of the case. (§ 170.6, subd. (2).)

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 3) prohibition against more than one peremptory challenge in any one action, the challenge to Judge McConnell was not allowed.

Matthews argues, however, that the 1985 amendment was not concerned with how many challenges could be made within "any one action or special proceeding" but rather was concerned with the potential bias of a trial judge in a "prior proceeding" who is reassigned to conduct a new trial after reversal. According to Matthews, it was the Legislature's intention to permit disqualification of any judge following reversal and reassignment as long as the challenge was filed within 60 days of notification of the assignment as provided in section 170.6, subdivision (2). In essence, Matthews argues the 1985 amendment was intended to eradicate the "one time only" provision of section 170.6 if there is a reversal on appeal and reassignment to the same trial judge following remand. We disagree.

The 1985 amendment arose out of concern by the proponents of the bill that a judge who had been reversed on appeal might prove to be biased against the party who successfully appealed the judge's erroneous ruling. (See Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576, 284 Cal.Rptr. 495; see also Sen.Com. on Judiciary, Analysis of Assem.Bill No. 1213 (1985-1986 Reg.Sess.) as amended May 24, 1985, pp. 2, 3; Assem.Com. on Judiciary, Analysis of Assem.Bill No. 1213 (1985-1986 Reg.Sess.) as amended May 15, 1985, p. 1.) Judiciary Committee Reports from the 1985 amendment explain that under the then existing time limitations specified for filing a peremptory challenge, a successful party on an appeal would be prevented from filing a challenge following reversal and reassignment to the same judge. (Sen.Com. on Judiciary, Analysis of Assem.Bill No. 1213, supra, at pp. 1-2, 3; Assem.Com. on Judiciary, Analysis of Assem.Bill No. 1213, supra, at p. 1.) The amendment permitted the filing of the peremptory challenge following such reversal and reassignment. (Ibid.) Nowhere in the amendment or in legislative reports prepared in connection with the amendment is there any mention of superseding the long- The Legislature was aware of the absolute prohibition against a party in an action exercising more than one peremptory challenge. The prohibition existed in the very statute the Legislature was amending. The existing wording of the provision that "[u]nder no circumstances" was a party permitted to make more than one challenge in "any one action or special proceeding" could hardly have been stronger. Had the Legislature intended to make an exception to the prohibition against multiple peremptory challenges in an action to allow more than one challenge upon reversal and reappointment of the same trial judge, it could have done so.

standing prohibition against filing more than one peremptory challenge in any one action or special proceeding. To the contrary, the only report addressing the number of challenges states "[t]his removal of a judge for prejudice would be limited to one uncontested challenge...." (Assem.Com. on Judiciary, Republican Analysis of Assem.Bill No. 1213 (1985-1986 Reg.Sess.) as amended May 24, 1985.)

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...