Tuesday, October 4, 2016
C.A. Scuttles Trial Court’s Acceptance of CCP §170.6 Challenge
By a MetNews Staff Writer
The Court of Appeal for this district has taken the rare action of nullifying a judge’s acceptance of a peremptory challenge, holding that a cross-defendant’s motion under Code of Civil Procedure §170.6, filed following affirmance of an order denying her anti-SLAPP motion, was unauthorized.
A statutory provision permitting a peremptory challenge upon a remand to the original trial judge following a reversal on appeal has no applicability, Presiding Justice Norman Epstein of Div. Four declared.
The unpublished opinion, issued Friday, requires that a case—involving an actress’s refusal to perform simulated sex, while nude, for the erstwhile late-night Cinemax television show Femme Fatales—be returned to Los Angeles Superior Court Judge Barbara M. Scheper.
In response to the cross-complainant’s petition for a writ of mandate, Epstein said that Scheper’s order granting the disqualification “was issued in error” and the petition must be granted.
It was Scheper who, in 2014, denied actress Anne Greene’s anti-SLAPP motion, filed on the heels of a cross-complaint against her by defendant True Crime, LLC, a production company.
Greene is suing True Crime for intentional infliction of emotional distress and other alleged wrongs in connection with the shooting of her in sex scenes on a non-closed set. On the second day of shooting, she refused to be photographed in such scenes, necessitating the hiring of a double.
True Crime cross complained for breach of contract, prompting Greene’s anti-SLAPP motion.
Scheper held that the motion did not meet the first prong of the anti-SLAPP motion—that the action stem from the defendant’s protected activity—because True Crime was not suing in retaliation for Greene exercising her right to petition, in the form of bringing her lawsuit, but because it suffered financial harm based on her alleged breach of contract.
The judge went on to declare that the second prong of the statute—likelihood of the defense prevailing—was also not satisfied, saying that True Crime had “provided ample evidence that it will prevail.”
Scheper’s ruling was affirmed March 13 in an unpublished opinion by Epstein. The presiding justice said that Scheper was correct in her assessment that the first prong was not met, and opted not to discuss whether there was a likelihood that Greene would prevail on the cross-action against her.
Following a remand, Scheper on May 26 stepped aside, in response to Greene’s peremptory challenge. The case is now in the courtroom of Los Angeles Superior Court Judge Elizabeth Feffer.
In challenging Scheper, Greene relied upon a 1985 amendment to §170.6 providing, in subdivision (a)(2), that a party may peremptorily challenge the judge “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.”
Epstein indicated that if Scheper had granted Greene’s motion, and the Court of Appeal had reversed, True Crime would have been able to invoke §170.6—but said that the affirmance of the judge’s denial of the anti-SLAPP motion does not afford Greene like access to a peremptory challenge.
If the motion had been granted, and the action had consequently been dismissed, he explained, a “trial” would have taken place because there would necessarily have been a determination “that the party opposing the motion is not likely to prevail on the merits of its claims at trial.” The jurist continued:
“It does not follow, however, that a peremptory challenge under section 170.6, subdivision (a)(2) is justified where, as here, an order denying an anti-SLAPP motion is affirmed on appeal.
“…Greene does not meet the separate requirement of section 170.6, subdivision (a)(2) that there must be ‘a reversal on appeal of a trial court’s final judgment.’ Most of the authorities on which she relies are inapposite because they involve the complete or partial reversal of such a judgment on appeal….Unlike those cases, this case will not be ‘reopened’ or ‘retried’ because it never reached a final judgment in the trial court.”
“That the trial court gratuitously expressed its view on the merits of True Crime’s case under the second prong of the anti-SLAPP statute makes no difference to the analysis under the provision of section 170.6, subdivision (a)(2), on which Greene relies. A ruling on the merits was unnecessary to the court’s decision to deny the motion under the first prong of the anti-SLAPP statute, and on appeal we expressed no opinion on the court’s reasoning regarding the merits. While Judge Scheper’s preliminary view of the merits of True Crime’s cross-complaint appears to have been unfavorable to Greene, that in itself does not justify a peremptory challenge against her at this stage of the proceeding. Nor is there reason to believe the judge would be ‘piqued’ by our affirmance of her order denying the anti-SLAPP motion in the prior appeal, or harbor bias in future proceedings on issues we did not reach.”
The case is True Crime, LLC v. Superior Court, Greene, RPI, B275596.
Harrison J. Dossick, Christine M. Neuharth, Kasey J. Curtis, and Paul D. Fogel of Reed Smith represented True Crimes. Keith A. Fink, Olaf J. Muller, and London A. Venturelli of Keith A. Fink & Associates acted for Greene.
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