California Procedure,  Judges,  Juveniles

Peremptory Challenge to Judge After Remand Has Its Limits

Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case.  Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once.

Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides

A motion under this paragraph 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.  Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.  The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the first instance, the ability to “paper the judge” after a reversal on appeal is a critically important consideration.  It may be the one thing that convinces an aggrieved party to appeal, when that party might otherwise have been resigned to accept an adverse judgment because the prospect of having to retry the case before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as the real parties in interest learned in C.C. v. Superior Court, case no. G040580 (4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after succeeding on appeal by obtaining a reversal of a reunification order, real parties successfully “papered the judge.”  Petitioner filed a petition for writ of mandate “for relief from the order accepting a peremptory challenge,” and the court of appeal granted the petition.

The language allowing a peremptory challenge on remand was added in 1985 to avoid perceived bias against an appellant of a trial judge whose judgment or order had been reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576.)  But the statute applies only where the remand requires “a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.”  (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)  It does not apply to the performance of a ministerial act.  (Stegs Investments v. Superior Courtsupra, 233 Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to perform only ministerial acts.  Those were: (1) to enter a new order denying reunification services and (2) setting a permanent plan selection hearing.  The court rejected the real parties’ argument that the subsequent hearing would require a reexamination of the same issues considered in the reunification hearing.

The real parties in interest claim, “the juvenile court in the present case will undoubtedly revisit the core determinations upon which this Court based its reversal,” meaning it will have to consider the strength of the bond between the children and the mother at the permanent plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the permanent plan selection hearing is not for purposes of reunification; rather, it is to determine whether to avoid the termination of parental rights and select a different permanent plan.  (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a different legal context from the disposition hearing and will involve facts as they then exist.  On remand, however, the juvenile court was merely directed to enter an order denying reunification services and to set a permanent plan selection hearing.  The implementation of these directions will not constitute a reexamination of an issue of fact or a retrial of the dispositional issues.

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to [the challenged judge].”

The same considerations should not apply in the typical civil trial, where past facts are what are at issue.  But any time that future consideration of an issue will depend on facts as they then exist, “papering the judge” is apparently not an option after remand.