Metropolitan News-Enterprise


Thursday, October 6, 2005


Page 1


Court of Appeal Rules:

Reversal on Class Certification No Basis for Challenge to Judge


By a MetNews Staff Writer


A appellate reversal of an order denying class certification does not give a litigant an opportunity to peremptorily challenge the judge who issued the order, this district’s Court of Appeal has ruled.

Writing for Div. Seven, Justice Fred Woods said provisions of Code of Civil Procedure Sec. 170.6(a)(2) permitting a litigant to remove a judge whose ruling has been reversed on appeal do not apply where the judge ruled only on the issue of class certification.

The decision, filed Sept. 13, was certified for publication yesterday.

Woods noted that Sec. 170.6(a)(2), added to the disqualification statute in 1985, permits a litigant to remove a judge from a case “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.”

He observed:

“It is the meaning of the term ‘new trial’ — a term not defined within section 170.6 itself — that is critical to the resolution of the case before us.”

Los Angeles Superior Court Judge Ralph W. Dau rejected the challenge to him filed by Jeremy Burdusis, ruling that Sec. 170.6(a)(2) did not apply. Burdusis filed the challenge after successfully appealing Dau’s ruling that individual factual issues predominated in his action for Labor Code violations and wage claims against Rent-A-Center, Inc.

Dau denied class certification.

The appellate court, in an unpublished opinion in February, ordered Dau to reconsider that ruling in light of the subsequent decisions by the state Supreme Court in Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319 and the Court of Appeal in Bell v. Farmers Insurance Exchange (2004) 115 Cal.App.4th 715.

In Peracchi v. Superior Court (2003) 30 Cal.4th 1245, Woods pointed out, the state high court held that a remand for resentencing after a partial reversal did not implicate the provisions of Sec. 170.6(a)(2).

‘Presumed Ire’

Quoting Peracchi, Woods commented:

“The Peracchi court found that the legislative history of the amendment to section 170.6 did not support the assertion that ‘the Legislature intended to protect, in all circumstances, parties who have prevailed on appeal from the presumed ire or potential bias of trial judges whose rulings have been reversed.’”

In the civil context, Woods said, the section has been held to apply to a reversal of a summary judgment motion on the merits, a remand for an evidentiary hearing and factual determination after a bench trial, and a dismissal at the pleading stage where the appellate court remanded for a factual determination on the merits of an anti-SLAPP motion.

“In each of these situations, the remand was from review of a decision that either

addressed the merits or otherwise terminated the case,” Woods wrote. “The significance of this fact lies in the definition of new trial....Ordinarily, a motion for a new trial is preceded by a trial, which is, in most instances, an examination of law and fact resulting in a judgment.”

‘Merits of Controversy’

In State Farm Mutual Automobile Ins. Co. v. Superior Court (Hill) (2004) 121 Cal.App.4th 490, Woods said, the appeals court “concluded that a pretrial motion that neither reached the merits of the controversy, nor terminated the action, was not a trial that would trigger section 170.6, subdivision (a)(2).”

He added:

“This determination was in full accord with earlier and subsequent authority.”

In ruling on a request for class certification, Woods observed, the trial judge is not permitted to evaluate the merits of the plaintiff’s claim.

He declared:

“Where, as here, the proceeding in the trial court did not address the merits, nor did it terminate the action, there has been no trial....Thus, there was no basis for the filing of the peremptory challenge, and the court properly denied it.”

The opinion authored by Woods was joined by Justice Laurie Zelon and Presiding Justice Dennis M. Perluss.

Among the attorneys on appeal were Joel E. Krischer of Latham & Watkins in Los Angeles, who represented Rent-A-Center, and Yuval M. Rogson of Paul Hastings Janofsky & Walker in Los Angeles, who represented Avon Products, Inc.

The case is Burdusis v. Superior Court (Rent-A-Center, Inc.), B183034.


Copyright 2005, Metropolitan News Company