Stegs Investments v. Superior Court

• Citation: 233 Cal.App.3d 572,284 Cal.Rptr. 495
• Decision Date: 20 August 1991
• Docket Number: No. B051733,B051733
• Court: California Court of Appeals
• Parties: STEGS INVESTMENTS, et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. Renee SPRECHER, Real Party in Interest.

Page 495

284 Cal.Rptr. 495

233 Cal.App.3d 572

STEGS INVESTMENTS, et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent Renee SPRECHER, Real Party in Interest.

No. B051733.

Court of Appeal, Second District, Division 5, California.

Aug. 20, 1991.

[233 Cal.App.3d 573] Edward R. Brown, Encino, for petitioners.

No appearance for respondent.

Bergman & Wedner, Gregory M. Bergman and Kristi Sjoholm-Sierchio, Los Angeles, for real party in interest.

ASHBY, Associate Justice.

In this proceeding, we hold that petitioners, who obtained partial reversal on appeal of a superior court judgment, may disqualify the original trial judge from presiding over the partial retrial of the case.

FACTS

This lawsuit involves the dissolution of Stegs Investments, a partnership consisting of petitioners Harley Stegman, Benjamin Stegman (now deceased) and Golda Stegman, and real party Renee Sprecher. Prior to trial, the parties stipulated that the partnership be dissolved; the only issue to be tried was whether there had been a breach of the partnership agreement. The respondent court found that petitioners had breached the agreement in a number of respects, and entered a judgment in favor of real party. Petitioners appealed, and Division Four of this court affirmed the judgment in part, and reversed in part due to erroneous evidentiary rulings by the respondent court. The matter was remanded "to afford defendants [petitioners] an opportunity to present evidence as to the circumstances under which the parties entered into the written partnership agreement." The remittitur issued on March 26, 1990.

On April 24, 1990, real party's counsel sent a letter to Judge Wisot's clerk requesting that the partial retrial of the case be heard by Judge Wisot. On April 27, 1990, petitioners' counsel wrote to Judge Wisot requesting that he consider disqualifying himself should the matter be reassigned to him. Judge Wisot did not reply to this letter, but real party's counsel responded a few days later with another letter to Judge Wisot, once again requesting that the remanded matters be heard by him.

As a precautionary measure, petitioners' counsel took steps to preserve petitioners' right to disqualify Judge Wisot. On April 30, 1990, counsel telephoned a clerk in the Master Calendar department to ascertain the court's policy in assigning remitted cases. Counsel was informed that "such cases would go back to the Master Calendar if not 'fast track' matters." Counsel confirmed this advice in writing in a follow-up letter to the master calendar court.

Petitioners also filed a motion to compel discovery and set the hearing on the motion in a law and discovery department of the superior court. Real party's counsel once against requested that the matter be heard by Judge Wisot. On June 29, 1990, petitioner's counsel called Department 31 (Judge Wisot's court) to find out if the July 2 discovery hearing had been transferred to that department. Counsel was advised by the clerk that there was no hearing on calendar for July 2. ¹

At some time prior to June 27, 1990, the case was reassigned to Judge Wisot. It appears that neither party received notice of the assignment because the parties failed to appear at a June 27 status conference. Judge Wisot issued an order to show cause re sanctions for non-appearance, and continued the status conference to July 12. The court's minute order was mailed to plaintiff's counsel, who was directed to give notice.

On June 29, 1990, petitioners' counsel learned from the master calendar clerk that the court's policy had changed and remitted matters were being assigned to the original trial judge. Counsel prepared a motion and affidavit pursuant to Code of Civil Procedure section 170.6, subd. (2), ² and filed it in Department 31. Petitioners' counsel also learned of the July 12 hearing at that time (although he received notice of the hearing from plaintiff's counsel shortly thereafter.)

. On July 12, the parties appeared before Judge Wisot. The court vacated the order to show cause, then addressed the issue of section 170.6 as follows: "Now, there is a limited direction from the Court of Appeal reversing in that following respect only. In all other respects the judgment was affirmed. I'm unclear as to whether that constitutes a new trial for purposes of the 170.6 statute." The court allowed petitioner's counsel to research the issue, but counsel was unable to find any pertinent cases, as this was an issue of first impression. The court then concluded that it had jurisdiction to rule on petitioners' discovery motion, since "the cause is before the court for further hearing on a single issue only, and not for a new trial." The court then denied petitioners' renewed discovery motion and imposed sanctions on petitioners in the sum of $1,920.

DISCUSSION

Section 170.6 was amended in 1985 to permit a peremptory challenge to be made when the same trial judge is assigned for a new trial after reversal on appeal. Prior to the enactment of the 1985 amendment, a matter remanded by an appellate court for full or partial retrial was normally assigned to the same trial judge who heard the case at the trial level. This policy was based on the premise that the trial judge who presided over the first...