Tuesday, August 10, 2004
Court of Appeal Rules:
Challenge to Judge Untimely After Pretrial Ruling Is Overturned
By David Watson, Staff Writer
A peremptory challenge to a judge made after an appellate court overturns a pretrial ruling is untimely, this district’s Court of Appeal ruled yesterday.
Writing for Div. One, Justice Robert Mallano said it was too late for State Farm Mutual Automobile Insurance Company to disqualify Los Angeles Superior Court Judge Charles W. McCoy Jr. after the appellate court granted the insurer’s writ petition challenging McCoy’s determination that California law governed an action against it by policyholders over the amount of dividends.
State Farm relied on language added to Code of Civil Procedure Sec. 170.6(a)(2) in 1985 permitting peremptory challenges “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.” But McCoy ruled the statute did not provide authority for the disqualification.
Mallano conceded that in Overton v. Superior Court (1994) 22 Cal.App.4th 112 the Fourth District Court of Appeal found, despite the use of the word “appeal” in the statutory language, that a challenge was proper after a writ petition was granted.
“We assume, without deciding, that the statute so applies,” Mallano explained. But he said McCoy would not be conducting a “new trial” within the meaning of the provision.
“[W]e conclude that a peremptory challenge is permitted under section 170.6(a)(2) where (1) a trial court’s decision or final judgment is made in conjunction with a ‘trial’ and (2) a subsequent reversal of that decision results in a ‘new trial.’ Applying this test here, we further conclude that State Farm’s peremptory challenge was not permitted,” the justice wrote.
Mallano observed that appellate courts have permitted disqualification on remand after dismissals resulting from summary judgment motions or anti-SLAPP motions were overturned by appellate courts. But McCoy, he pointed out, had only ruled on a pretrial motion to determine the law which would apply when the matter was tried.
“That determination—regarding what law governs—had to be made before any of plaintiffs’ causes of action could be adjudicated,” the justice declared. “And the granting of the prior writ petition, which corrected the trial court’s ruling, will not result in a ‘new trial.’ The trial court has yet to ‘try’ any of plaintiffs’ causes of action; it merely decided (albeit incorrectly) which state’s law will apply when the case is tried or otherwise adjudicated.”
Though the appellate court’s earlier decision found McCoy had erred in determining that California law should govern, it upheld his refusal to dismiss the case, Mallano noted.
McCoy had rejected application of the “internal affairs” doctrine, a conflict of laws principle recognizing that certain matters of corporate governance should be decided under the law of the company’s state of incorporation. The Court of Appeal, in State Farm Mutual Automobile Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, found that the doctrine was applicable, but that—while it required the use of Illinois law—it permitted trial of the matter in California.
The motion McCoy heard was “the equivalent of an in limine motion,” Mallano said, adding:
“Just as an in limine motion is not itself a ‘trial,’ neither was State Farm’s Motion to Determine Applicable Law. And, here, the trial court’s denial of State Farm’s Motion to Dismiss—a ruling with which we agreed—can hardly be considered a ‘trial.’”
The justice noted that although section 170.6(a)(2) does not provide a definition of “new trial,” Code of Civil Procedure Sec. 656 defines “new trial” as the “re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”
He also pointed out that the 1985 amendment to the law at first referred to situations in which the trial judge in the prior proceedings was assigned “to rehear the matter.” In the final version of the amending legislation, that language was replaced by the “new trial” terminology.
State Farm was represented on appeal by Paul Alexander of Heller Ehrman White & McAuliffe in Menlo Park and Raoul D. Kennedy of Skadden, Arps, Slate, Meagher & Flom in San Francisco. J. Michael Hennigan of Hennigan, Bennett & Dorman in Los Angeles, Timothy J. Morris of Gianelli & Morris in Los Angeles, and Raymond E. Mattison of Ernst and Mattison in San Luis Obispo represented the policyholders.
The case is State Farm Mutual Automobile Insurance Company v. Superior Court (Hill), B174063.
Copyright 2004, Metropolitan News Company