Metropolitan News-Enterprise


Wednesday, August 26, 2020


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C.A. Limits CCP §170.6 Challenge Following Reversal, Remand

Justice Feuer Says Right to Disqualify, Peremptorily, Judge Who Presided Over Preceding Trial Doesn’t Apply Where Reversal Is Conditional; Motion Lies Only If Judge Orders New Trial


By a MetNews Staff Writer


A party’s entitlement to exercise a peremptory challenge, on remand, to the judge who presided at the previous trial and was reversed does not apply where a reversal is conditional, the Court of Appeal for this district has held.

If a new trial will take place, or not, depending on further determinations by the trial court, the opinion, filed Monday, says, the judge at whom the challenge is directed must hold off on acting on the challenge “unless and until” a new trial is ordered.

Justice Gail Feuer of Div. Seven wrote the opinion. It grants a preemptory writ of mandate directing the Los Angeles Superior Court to vacate an order honoring a preemptory challenge to Judge Anthony J. Mohr.

2017 Trial

Mohr had presided in 2017 over a medical malpractice action brought by Zulma Unzueta against Asmik Akopyan, a Glendale anesthesiologist. Four prospective jurors who are Hispanic were excused peremptorily by Akopyan’s lawyer, Robert B. Packer, before a jury was empaneled that day.

The following day, two Hispanic prospective alternate jurors were then excused, and Mohr, suspecting racial bias, made a sua sponte Batson/Wheeler motion, requiring Packer to justify the use of peremptory challenges as to the potential alternates.

Unzueta’s lawyer, Yana G. Henriks, who had not sought a justification of the four challenges the previous day, asked Mohr to require, also, an articulation by Packer as to why he made those rejections. Mohr declined, explaining:

“Well, that water is under the bridge. I’m not going to ask counsel to justify yesterday’s peremptory. That is past.”

He was satisfied with the reasons the defendant’s lawyer gave as to dumping the potential alternates and denied the motion.

The trial resulted in a jury verdict for the doctor.

2019 Reversal

The Court of Appeal on Nov. 19, 2019, reversed the ensuing judgment for Akopyan. Feuer also wrote that opinion.

“We credit the trial court for raising a Batson/Wheeler challenge on its own motion,” she wrote, but said that once Mohr saw the possibility that preemptory challenges were being made for a discriminatory purpose, he should have required explanations as to the first four peremptory challenges to Hispanics.

On remand, she said, the court, having completed the first stage of a Batson/Wheeler inquiry—determining that a prima facie case of racial bias appears—must proceed with the second stage, hearing the defense lawyer’s explanation of the challenges to the four venirepersons and, if the reasons are race neutral, going on to the third stage: deciding if purposeful discrimination has, despite the explanation, been shown.

She wrote:

“If the court finds it cannot adequately perform the second and third stages of the Batson/Wheeler analysis on remand because of the passage of time or other reason, or if it determines Dr. Akopyan’s attorney exercised the peremptory challenges based on racial bias, it should set the case for a new trial. If the court finds Dr. Akopyaris attorney exercised his peremptory challenges in a permissible fashion, it should reinstate the judgment.”

Mohr Accepts Challenge

On remand, Mohr on March 2 of this year accepted Unzueta’s Feb. 26 peremptory challenge to him. That challenge, Feuer said in Monday’s opinion, was statutorily unauthorized.


Code of Civil Procedure §170.6(a)(2) provides that a peremptory challenge to a judge “may be made 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.”

The problem, Feuer said, is that Mohr was not assigned to conduct a new trial, but was directed by her opinion to conduct a Batson/Wheeler hearing, with the prospect of a new trial. (The motion is based on procedures set forth by the U.S. Supreme Court in its 1986 decision in Batson v. Kentucky and the 1978 California Supreme Court case of People v. Wheeler, with those procedures having been judicially extended to civil cases.)

Feuer wrote:

“A Batson/Wheeler hearing…is not a trial because it does not terminate the case or resolve its merits….A Batson/Wheeler motion is a pretrial motion to evaluate whether a party’s exercise of peremptory challenges against potential jurors was impermissibly motivated by purposeful discrimination.”

She said that “unless and until the trial court decides to grant the Batson / Wheeler motion (or decide it is unable to decide the motion), and orders a new trial, Dr. Akopyan’s section 170.6 challenge is premature and should not be granted.”

The opinion directs:

“A peremptory writ of mandate shall issue directing respondent superior court to vacate its March 2, 2020 order granting Unzueta’s motion to disqualify Judge Mohr and to enter a new order deferring a ruling on the motion until after resolution of the Batson/Wheeler inquiry.”

The case is Akopyan v. Superior Court (Unzueta), 2020 S.O.S. 4135.

Representing Akopyan on appeal were Kenneth R. Pedroza and Matthew S. Levinson of the San Marino appellate law firm of Cole Pedroza, as well as Packer and Paul M. Corson of the Glendale firm of Packer, O’Leary & Corson. Henriks of the downtown Los Angeles firm of McMurray Henriks acted for Unzueta.


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