Stubblefield Const. v. Superior Court
| Decision Date | 16 June 2000 |
| Citation | 81 Cal.App.4th 762,97 Cal.Rptr.2d 121 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 4 Dist. 2000) STUBBLEFIELD CONSTRUCTION CO. et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CITY OF SAN BERNARDINO et al., Real Parties in Interest. E026308 -- STATE OF CALIFORNIA, FOURTH DISTRICT, DIVISION TWO Filed |
ORIGINAL PROCEEDINGS in mandate. Martin A. Hildreth, Judge. ) Petition granted.
Hill, Farrer & Burrill and Dean E. Dennis for Petitioners.
No appearance for Respondent.
Lewis, D'Amato, Brisbois & Bisgaard, Christopher D. Lockwood; James F. Penman, City Attorney, and Henry Empeno, Deputy City Attorney, for Real Parties in Interest.
CERTIFIED FOR PUBLICATION
/s/Gaut, Acting P. J.
In this matter we are, as happens far too often, called upon to reconcile and attempt to harmonize two statutes which strenuously resist any effort to make sense of them. Of the two possible results argued by the parties, neither is either compelled or compelling. Nevertheless, in our view the conclusion we reach comports best with the intent of the Legislature as we understand it and does the least violence to the English language. We find that petitioners' attempt to disqualify the trial judge was timely and that the trial court erred in finding otherwise.
The facts of the underlying case are not significant. Earlier proceedings resulted in a summary judgment in favor of real parties in interest the City of San Bernardino and related defendants (hereinafter "City"). However, on appeal by petitioners Stubblefield Construction Co. et al. (hereinafter "Stubblefield"), we reversed the summary judgment in part and remanded for further proceedings. Our opinion was filed on June 28, 1999, and the remittitur was received by the trial court on August 31 of that year.
On September 17, the clerk of the court notified the parties that the case had been assigned to the Honorable Christopher J. Warner for all purposes. Judge Warner had, in fact, made the ruling which led to the latest appeal and partial reversal. On October 29, Stubblefield filed a peremptory challenge to Judge Warner pursuant to Code of Civil Procedure section 170.6, and the City filed an objection based on untimeliness. The court sustained the City's objection and refused to disqualify itself. This petition followed and we stayed further proceedings pending our resolution of the matter.
Stubblefield relies upon Code of Civil Procedure section 170.6, subdivision (2). In pertinent part this statute provides that
To this, the City raises two arguments: 1) that Stubblefield, having previously filed a challenge under Code of Civil Procedure section 170.6, is not entitled to file another, and 2) that the case is governed by separate, and shorter, time limits established in the Government Code. We address these arguments separately.
First, the City argues that Stubblefield may not exercise its right to challenge Judge Warner because it previously exercised such a challenge.1 Although as a rule a party is limited to a single peremptory challenge in a case, as set forth above, the statute clearly permits an additional challenge following reversal of a judgment if the same judge is assigned to hear the case on remand. However, the City argues that because the proceedings were terminated by summary judgment, rather than by judgment after trial, the remand will not result in a new trial but in a first trial. Hence, the argument runs, the exception to the "one challenge" rule does not apply.
The contention is meritless. It is quite true, as the City argues, that the exception does not apply to all proceedings after remand by the Court of Appeal. In Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 576 (hereinafter "Stegs Investments"), the court expressed the view that the disqualification right would not apply if the remand was for a "ministerial" purpose, such as calculating interest. However, the court pointed out that the purpose of the provision, enacted in 1985 at a time when it was common to reassign the trial judge to the remanded case, was to address the "concern . . . that a judge who had been reversed might prove to be biased against the party who successfully appealed the judge's erroneous ruling at the original trial." (Id. at pp. 575-576.) Accordingly, as the court explained, a party may disqualify the former judge reassigned to the case if the case involves an actual retrial of one or more issues.
Stegs Investments, supra, 233 Cal.App.3d 572, was followed in Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, which, in defining "new trial," relied on the "very broad" application of the phrase in Code of Civil Procedure section 656. (See also Carney v. Simmonds (1957) 49 Cal.2d 84, 90-91.) It is also well recognized that a motion for "new trial" may properly be addressed to a summary judgment rendered under Code of Civil Procedure section 437c. (Scott v. Farrar (1983) 139 Cal.App.3d 462, 467; see also Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.)
Thus, the 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.2 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 Judge Warner.
We turn now to the more difficult question-whether Stubblefield exercised that right in a timely fashion.
The City's response to Stubblefield's reliance on the time provisions of Code of Civil Procedure section 170.6 is to point to facially contrary provisions in Government Code section 68616, subdivision (i). That statute is part of the "Trial Court Delay Reduction Act" and applies to all cases falling under that act (commonly known as "fast track" cases), as this one does. The language on which the City relies provides that (Italics added.) This case involves a direct calendar assignment.
The drastic effect of an unadorned reading of this provision is immediately apparent. If the direct calendar assignment is made more than 15 days after a party's first appearance in the case, that party would never have the right to exercise a peremptory challenge. It would also necessarily mean that a peremptory challenge could never be exercised after an appeal and remand, because all parties would have long since made a "first appearance."
Nevertheless, this was the construction argued by the real party in interest in Fight for the Rams v. Superior Court (1996) 41 Cal.App.4th 953 (hereinafter "Fight for the Rams"). In that case, the plaintiff filed suit (thus "appearing") on February 15, but an all purpose assignment (or direct calendar assignment) was not made until May 4. Plaintiff then filed a peremptory challenge on May 12. The trial court denied it as untimely, and when plaintiff sought review by extraordinary writ, the defendant argued that due to the timing neither side had any right to a peremptory challenge.
The appellate court had no difficulty in rejecting this contention in reversing the trial court. Instead, the court held that "Government Code section 68616, subdivision (i) unambiguously requires a party to exercise a peremptory challenge 'within 15 days of the party's first appearance' in a direct calendar court." (Fight for the Rams, supra, 41 Cal.App.4th at p. 958, italics added.) In the court's implicit view, a trial court does not become a "direct calendar court" until a direct calendar assignment is made, and it is only at that time that a party makes its "first appearance" in that court and the time in which a peremptory challenge must be made begins to run.3 A similar result was reached in Cybermedia, supra, 72 Cal.App.4th 910, which involved a case in which the assigned all purpose judge was replaced by another judge. Without referring to Fight for the Rams, supra, 41 Cal.App.4th 953, and expressing the intent to "harmonize" Code of Civil Procedure section 170.6 with Government Code section 68616, subdivision (i), the court simply stated that "where, as here, a party has already appeared in the action, it must file its challenge within 15 days of receiving notice of a change in the individual calendar judge assigned to the matter."4 (Cybermedia, supra, 72 Cal.App.4th at p. 913.)
The City here does not argue that Stubblefield had no right to exercise a...
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