Thursday, April 12, 2018
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C.A. Disallows §170.6 Challenge Following Refiling of Charges
Says Second Case Is a ‘Continuation’ of First Case and ‘Gamesmanship’ Cannot Be Counteranced in Attempt to Skirt Adverse Rulings
By a MetNews Staff Writer
The First District Court of Appeal yesterday thwarted a ploy by the County District Attorney’s Office, holding that the prosecution may not dismiss a case after pretrials ruling are made, then refile it and, upon it being assigned to the same judge as before, file a preemptory challenge.
In an opinion by Justice Martin J. Jenkins of Div, Three, it announced it was summarily granting a writ of mandate ordering the San Mateo Superior Court to vacate its order granting a motion pursuant to Code of Civil Procedure §170.6, and to enter a new order denying it.
“Because the record before us discloses a clear effort by the District Attorney to avoid the effect of the trial judge’s orders in the dismissed case,” Jenkins wrote, “we conclude the second action was a mere continuation of the first, and thus, the peremptory challenge was untimely.”
Rulings in a case in which Willard Birts Jr. was charged with various felony counts relating to domestic violence were made by Judge Gerald J. Buchwald. When the prosdecutor announced he would dismiss for lack of evidence, then refile the case the next day, the defense lawyer protested, calling for a statement of specific reasons.
Prosecutorial Prerogative
Buchwald responded:
“I’m not sure that they’re required to do that. I think they have the right—we have not empaneled a jury yet….And I think they have the right to dismiss and refile it tomorrow if that’s what they want to do, and their reasons are their work product.”
A refiling took place the following day and Birts was arraigned that day. The following month, a new information was filed that was nearly identical to the first two.
Birts made a nonstatutory motion to dismiss, arguing that the prosecution was attempting to manipulate the system and was engaging is misconduct by seeking to mislead the court as to its motivations. San Mateo County Judge Donald J. Ayoob denied the motion, finding that there was no misconduct in dismissing and refiling “after receiving unfavorable pre-trial rulings which the prosecutor believed to be fatal to the case.”
The court’s presiding judge, Susan I. Etezadi, reassigned the case to Buchwald for jury trial; the prosecution filed its §170.6 peremptory challenge; Etezadi granted it; Birts sought a writ.
Precedents Cited
The Office of District Attorney, in arguing against writ relief, cited the Court of Appeal’s 1999 decision in Paredes v. Superior Court, decided by this district’s Div. One. There a case was dismissed, refiled, and reassigned to the judge it was previously before, Los Angeles Superior Court Judge L. Jeffrey Wiatt (since deceased).
Wiatt found the new case to be a “contuation” of the first and found that a §170.6 challenge did not lie.
“We conclude otherwise,” then-Justice Miriam A. Vogel (now back in law practice) said.
In the 2003 Court of Appeal decision in Ziesmer v. Superior Court, Presiding Justice Arthur Gilbert recited that a dismissal “terminates the action,” declaring:
“Therefore, if the action is refiled and assigned to the same judge to whom the case was originally assigned, a party may disqualify the judge pursuant to Code of Civil Procedure section 170.6.”
Cases Don’t Apply
Jenkins wrote:
“We find that Paredes and Ziesmer do not control in situations where, as here, the second case is virtually identical to the dismissed case and the sole rationale articulated for the dismissal and refiling is to evade the impact of rulings made in the first case. In the instant matter, the District Attorney has not denied—and indeed has stated rather openly—that the refiled case involves the same charges as before, and that the decision to dismiss the first case was motivated solely by Judge Buchwald’s pretrial rulings. In its opposition to the petition for writ of mandate, the District Attorney provided no alternative explanation as to why the state of the evidence was insufficient on one day, but sufficient the next. Rather, the District Attorney acknowledged that the first case was dismissed ‘because evidentiary rulings hampered the prosecutor’s case,’ a concession the District Attorney did not make to Judge Buchwald when moving to dismiss. Thus, the dismissal and refiling simply erased the effect of Judge Buchwald’s evidentiary rulings. Under section 170.6 and the cases interpreting it, we cannot allow such gamesmanship.”
The jurist pointed to two Court of Appeal cases emanating frtom this district, not cited by the parties: NutraGenetics, LLC v. Superior Court, decided in 2009 by Div. Eight, in an opinion by Los Angeles Superior Court Judge Anthony Mohr, sitting on assignment, and Pickett v. Superior Court, a 2012 decision by Div. Five, with Justice Richard Mosk (since deceased) writing the opinion. Each opinion indicates that there are circumstances where a refiled case is a continuation of an earlier case, he noted.
Jenkins said in a footnote:
“[W]here, as here, the record discloses a clear and singular intent to avoid the impact of an adverse order in the prior proceeding, we have no trouble finding that the continuation rule should apply.”
The case is Birts v. Superior Court, 2018 S.O.S. 1662.
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