People v. Superior Court (Maloy)

• Citation: 91 Cal.App.4th 391,109 Cal.Rptr.2d 897
• Decision Date: 07 August 2001
• Docket Number: No. F037893.,F037893.
• Court: California Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Tulare County, Respondent; Leroy Jesse MALOY, Real Party in Interest.

109 Cal.Rptr.2d 897

91 Cal.App.4th 391

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Tulare County, Respondent;

Leroy Jesse MALOY, Real Party in Interest.

No. F037893.

Court of Appeal, Fifth District.

August 7, 2001.

Review Denied November 14, 2001.

Phillip J. Cline, Tulare County District Attorney, Carol B. Turner and Don H. Gallian, Assistant District Attorneys, and Barbara J. Greaver, Deputy District Attorney; Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Law Office of Gary L. Paden and Gary L. Paden, Visalia, for Real Party in Interest.

CORNELL, J.

The issue presented by this appeal is whether a litigant can peremptorily challenge a judge pursuant to Code of Civil Procedure section 170.6, subdivision (2)¹ after the judge's dismissal of the action based on the allegations in the complaint is reversed on appeal. In this action, the trial court granted defendant's motion to dismiss the complaint concluding the action was barred by the statute of limitations. After this court reversed the order, the People challenged the judge who had erroneously dismissed the action. The trial court reasoned the People were not entitled to a peremptory challenge because the ruling which was reversed occurred prior to trial and, therefore, there would not be a new trial after remand as required by section 170.6, subdivision (2). We disagree and will issue the requested writ of mandate.

FACTUAL AND PROCEDURAL SUMMARY

The People filed an amended complaint on April 15, 1994, charging Leroy Jesse Maloy (Maloy) with 10 counts of various sexual offenses against several minors. The prohibited acts allegedly occurred between January 1967 and April 1979. The action was brought after the enactment of Penal Code section 803, subdivision (g) in 1994, which established a new statute of limitations for sexual offenses committed against minors.

The Honorable Ronn M. Couillard dismissed the complaint on July 22, 1994, finding the trial court had no jurisdiction because the action was barred by the statute of limitations. The People's motion to reinstate the complaint was denied on August 18,1994.

The People appealed and this court reversed holding that Penal Code section 803, subdivision (g) did not violate the ex post facto clauses of the federal or state Constitutions. The Supreme Court granted Maloy's request for review. Review was subsequently dismissed and the case was remanded to this court in light of amendments to Penal Code section 803, subdivision (g). This court issued its remittitur on May 8,1997.

The People refiled the complaint on March 20, 1998. Maloy moved to dismiss the complaint arguing the trial court did not have jurisdiction to hear the matter. Judge Couillard granted the motion and denied the prosecution's motion to reinstate the complaint.

The People appealed and this court reversed holding that Penal Code section 803, subdivision (g) did not violate the state or federal Constitutions. The Supreme Court granted Maloy's petition for review, but dismissed review pursuant to California Rules of Court, rule 29.4(c) on December 6, 2000. This court issued its remittitur the same day.

On January 17, 2001, the People moved to disqualify Judge Couillard pursuant to section 170.6, subdivision (2). Judge Couillard denied the motion. The People filed a petition for writ of mandate in this court seeking an order requiring Judge Couillard to grant the section 170.6 motion and requesting a stay of the action. This court issued an order to show cause why the relief prayed for in the petition should not be granted.

DISCUSSION

I. Statutory Background

Section 170.6 guarantees ".... to litigants an extraordinary right to disqualify a judge. The right is `automatic' in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.]" (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531, 116 Cal.Rptr. 260, 526 P.2d 268, overruled on other grounds in Spruance v. Commission on Jud. Qualifications (1975) 13 Cal.3d 778, 800, fn. 18, 119 Cal.Rptr. 841, 532 P.2d 1209; and Doan v. Commission on Jud. Performance (1995) 11 Cal.4th 294, 325, 11 Cal.App.4th 474A, 45 Cal.Rptr.2d 254, 902 P.2d 272.) The object of this section is to provide the party and attorney with a substitution of judge to safeguard the right to a fair trial or hearing. (Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 144, 78 Cal.Rptr.2d 721.) This section is intended to ensure confidence in the judiciary and avoid the suspicion which might arise from the belief of a litigant that the judge is biased where such belief is difficult, if not impossible, to prove. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 192-193, 137 Cal.Rptr. 460, 561 P.2d 1148.) The section is liberally construed and the trend is to grant relief unless absolutely forbidden by statute. (People v. Superior Court (1992) 8 Cal.App.4th 688, 697-698, 10 Cal. Rptr.2d 873; Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 154, 7 Cal.Rptr.2d 801.)

The peremptory challenge right is not absolute and unlimited. (People v. Superior Court, supra, 8 Cal.App.4th at p. 698, 10 Cal.Rptr.2d 873.) "Inherent in its exercise is the requirement of conformance to certain reasonable procedures invoked for the benefit of .... all .... litigants." (People v. Jackson (1960) 186 Cal.App.2d 307, 317, 8 Cal.Rptr. 849.) "[T]he courts of this state have been vigilant to enforce the statutory restrictions on the number and timing of motions permitted." (Solberg v. Superior Court, supra, 19 Cal.3d at p. 197, 137 Cal.Rptr. 460, 561 P.2d 1148.)

II. Standard of Review

This court reviews an order granting or denying a peremptory challenge pursuant to section 170.6 for an abuse of discretion. A trial court abuses its discretion when it erroneously denies a motion to disqualify a judge. (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315, 104 Cal.Rptr.2d 173.)

III. Analysis

The pertinent portion of section 170.6, subdivision (2) provides:

"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 (3) of this section, 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."

This provision was added to section 170.6 by amendment in 1985 (the 1985 amendment) (Stats.1985, ch. 715, § 1). The 1985 amendment arose out of concern that a judge who had been reversed might prove to be biased against the party who successfully appealed the judge's erroneous ruling. (Matthews v. Superior Court (1995) 36 Cal.App.4th 592, 597, 42 Cal. Rptr.2d 521.) The Legislature amended this section in 1998 to allow a successful appellant to challenge the trial judge even though the appellant had previously utilized a peremptory challenge in the action. This is the only exception to the limitation of only one peremptory challenge per side. (§ 170.6, subd. (3).)

In denying the peremptory disqualification motion, Judge Couillard focused on the portion of the statute which allowed a peremptory challenge after a successful appeal where the matter is assigned to the same trial judge to conduct a "new trial." Judge Couillard reasoned that since the judgment was the result of a dismissal by the court before a trial occurred, there could not be a "new trial" in the action and, therefore, the People were not entitled to a peremptory challenge under section 170.6.

There are no published opinions which address the specific issue presented by this writ. Judge Couillard identified Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762, 97 Cal.Rptr.2d 121 (Stubblefield) as the most analogous opinion. In Stubblefield, defendant's motion for summary judgment was granted and judgment entered thereon. The appellate court reversed the judgment and remanded the case to the superior court for trial. Plaintiff made a motion to disqualify the trial judge pursuant to section 170.6, subdivision (2). Defendant argued that because the original judgment was entered after a motion for summary judgment, there had not been a trial and, thus, there could not be a "new trial." The trial court denied the motion.

The appellate court rejected defendant's argument and ordered the trial court to grant plaintiff's motion. "[T]he proceedings contemplated by our remand will be a new trial within the meaning of Code of Civil Procedure section 170.6, subdivision (2). Although there was no full trial of the matter in this case, a final judgment was entered. Our partial reversal requires that the case be reopened, with an actual trial if necessary; furthermore, our partial reversal reflected our view that the trial judge erred in a crucial decision of law. Assuming, as the Legislature did, that a judge may react with a certain pique to the negative treatment of his or her decisions by an appellate court, this situation is obviously one in which the potential for bias exists. Given the policy reasons for the 1985 amendments to Code of Civil Procedure section 170.6, it is plain that Stubblefield had the right to disqualify [the trial judge]." (Stubblefield, supra, 81 Cal. App.4th at pp. 765-766, 97 Cal.Rptr.2d 121, fn. omitted.)

Judge Couillard distinguished Stubblefield on the grounds that a summary judgment constituted a decision on the merits. Jud...