Pfeiffer Venice v. Superior Court

• Decision Date: 02 April 2003
• Docket Number: No. B162707.,B162707.
• Citation: 132 Cal.Rptr.2d 400,107 Cal.App.4th 761
• Court: California Court of Appeals Court of Appeals
• Parties: PFEIFFER VENICE PROPERTIES, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Sheila Bernard, et al., Real Parties in Interest.

132 Cal.Rptr.2d 400

107 Cal.App.4th 761

PFEIFFER VENICE PROPERTIES, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Sheila Bernard, et al., Real Parties in Interest.

No. B162707.

Court of Appeal, Second District, Division 5.

April 2, 2003.

Irell & Manella, Gregory R. Smith, Allan J. Abshez and Andrew K. Fogg, Los Angeles, for Petitioner.

No appearance on behalf of Respondent.

ACLU Foundation of Southern California, Daniel P. Tokaji and Mark Rosenbaum, Los Angeles; and Edward I. Sands for Real Parties in Interest.

ARMSTRONG, J.

Petitioner, the unsuccessful respondent in an earlier appeal in this action, seeks an order directing the assigned trial judge to honor its post-appeal peremptory challenge, filed pursuant to Code of Civil Procedure¹ section 170.6, subdivision (2). Contrary to the trial court's reading of that provision, we find that post-appeal peremptory challenges are not the exclusive right of parties who were appellants on appeal, but are also available to parties who were respondents, provided they have not yet exercised a peremptory challenge in the litigation. Accordingly, we grant the petition.

FACTS AND PROCEDURAL HISTORY

Petitioner was the plaintiff in a case claiming that real parties in interest operating through a tenant's association, attempted to interfere with petitioner's efforts to enhance the value of its rental property. Specifically, real parties allegedly encouraged petitioner's tenants not to relinquish their parking spaces during petitioner's renovation of the garage area of its building.² Neither party filed a peremptory challenge to the judge assigned to hear their case. Early in the litigation, real parties brought a SLAPP ("Strategic Lawsuit Against Public Participation") motion to strike the complaint, but the trial court instead disposed of the case using its inherent power to strike improper pleadings. Nevertheless, in announcing its ruling, the trial court opined that petitioner brought the action for purposes of "political intimidation" of real parties, and invited a motion to recover attorney fees. Petitioner appealed that decision, but later abandoned the appeal.

In the meantime, real parties in interest filed a motion seeking attorney fees. Their motion was denied because the trial court did not believe real parties had prevailed on any issue central to the merits of the litigation. Real parties successfully appealed that ruling. This court remanded the matter with directions to the trial court to consider the merits of the SLAPP motion for purposes of determining real parties' entitlement to attorney fees. (Pfeiffer Venice Properties, supra, 101 Cal. App.4th at pp. 218-219, 123 Cal.Rptr.2d 647.) Within days of remittitur issuing and the matter being returned to the same trial judge, petitioner filed a peremptory challenge. However, the judge struck the challenge on the ground that the provisions of section 170.6, subdivision (2), allowing post-appeal peremptory challenges, were exclusively for use by the party who filed the appeal resulting in reversal of a judge's decision. This petition followed.

DISCUSSION

A A post-appeal peremptory challenge is available to unsuccessful respondents.

Petitioner asserts that the trial court's reading of section 170.6, subdivision (2), was erroneous, and that respondents on appeal should have the same opportunity as appellants to "start with a clean slate" after remand should the case be reassigned to the judge who conducted the original trial. We agree. Section 170.6, subdivision (2), provides in pertinent 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 (3) of this section [limiting parties to one peremptory challenge per litigation], 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."

The language of that section plainly authorizes post-appeal peremptory challenges without any distinction between the parties based on their respective positions on appeal. Such a distinction is made only in allocating the number of peremptory challenges that may be filed in a single litigation. Specifically, the party or side that successfully appealed is allowed a post-appeal peremptory challenge despite having made a peremptory challenge earlier in the litigation. Meanwhile, the party or side that responded to the appeal remains limited by subdivision (3) of section 170.6 to one peremptory challenge for the entire litigation. Otherwise, the statute contains no restrictions on the responding party's ability to exercise a post-appeal peremptory challenge. We must follow the clear language of the statute. (Code Civ. Proc., § 1858; Ventura County Deputy Sheriffs' Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 492-493, 66 Cal. Rptr.2d 304, 940 P.2d 891; Faria v. San Jacinto Unified School Dist. (1996) 50 Cal. App.4th 1939, 1945 & fn. 2, 59 Cal.Rptr.2d 72.)

Even if the language of the statute were deemed ambiguous so as to permit reference to the legislative history in interpreting it, our reading of section 170.6, subdivision (2), would be confirmed. (Pandazos v. Superior Court (1997) 60 Cal. App.4th 324, 326, 70 Cal.Rptr.2d 669.) Prior to 1985, section 170.6, subdivision (2), did not provide for post-appeal challenges. However, in 1985, the Legislature amended that 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. The motion shall be made within 60 days after the party ... has been notified of the assignment." (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575, fn. 2, 284 Cal.Rptr. 495.)

As we noted in Stegs Investments, that amendment was added out of concern that a judge who had been reversed might be biased against the party who successfully appealed that judge's decision. (Id. at pp. 575-576, 284 Cal.Rptr. 495; see also Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1213 (Reg.Sess.1985-1986), as amended May 15, 1985, p. 1; Sen. Com. on Judiciary, Analysis of Assem. Bill 1213 (Reg.Sess.1985-1986), as amended May 24, 1985, p. 2.) Significantly, however, the 1985 legislative history reveals that the amendment was further intended to "provide[ ] an efficient mechanism to remove a judge whose conduct during the original trial evidenced prejudice toward a party." (Assem. Com. on Judiciary, analysis of Assem. Bill No. 1213 (Reg.Sess.1985-1986), as amended May 15, 1985, p. 1; see also Sen. Com. on Judiciary, analysis of Assem. Bill 1213 (Reg.Sess.1985-1986), as amended May 24, 1985, p. 2.) Such prejudice may be observed by any party to a litigation, regardless of that party's eventual position on appeal. Thus, there is no reason to conclude the 1985 amendment was meant for use only by the party that appealed the judge's decision. Indeed, the language of the 1985 amendment itself, which is neutral as to which party or side might challenge a judge under its terms, confirms that reading of the legislative history.

Urging an interpretation of the statute that would limit post-appeal challenges to successful appellants, real parties in interest point to a later amendment of section 170.6, subdivision (2) that does distinguish between the parties according to their positions on appeal. However, that amendment added in 1998, addressed only the number of peremptory challenges that could be filed in one litigation, again in accord with the language actually used in the statute. In fact, the 1998 amendment was enacted to accomplish the specific task of overruling a 1995 appellate court decision regarding the number of permissible peremptory challenges, nothing more. (See Ass. Com. on Judiciary, Analysis of Assem. Bill No. 1199 (1997-1998 Reg. Sess.), as amended January 5, 1998, p. 2.) In Matthews v. Superior Court (1995) 36 Cal.App.4th 592, 597, 42 Cal.Rptr.2d 521, the Court of Appeal held that a successful appellant who had already filed a peremptory challenge under section 170.6, subdivision (2), as then constituted, was precluded from filing a second, post-appeal peremptory challenge because subdivision (3) of section 170.6 permits only one such challenge per litigation. Believing that limitation to be inappropriate, the Legislature then amended section 170.6, subdivision (2), to its present form, inserting the sentence, "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."

It is true, as real parties in interest point out, the Legislature referred to the 1998 amendment as "simply clarif[ying]" its 1985 legislation, and described the intent behind the 1985 amendment as being the protection of successful appellants from judges who might be piqued by reversal of their decisions. (See Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1199 (1997-1998 Reg. Sess.), as amended January 5, 1998, pp. 1-2; Sen. Jud. Com., analysis of Assem. Bill 1199 (1997-1998 Reg. Sess.), as amended June 1, 1998, pp. 1, 3.) However, that incomplete summary of the Legislature's earlier intent does not vitiate the express statement written in conjunction with the 1985 amendment that "[t]he purpose of this bill is to allow a party to remove a judge whose conduct during the original trial evidenced prejudice toward a party." (Sen. Com. on Judiciary, Analysis of...