Guerrero v. Super.
Filed 9/12/13 Guerrero v. Super. Ct. CA1/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
ADELINA
TAPIA GUERRERO,
Petitioner,
v.
THE SUPERIOR
COURT OF SONOMA
COUNTY,
Respondent;
JO WEBER et
al.,
Real Parties in Interest.
A139545
(Sonoma
County Superior Court
No. SCV-248680)
BY THE COURT:
Petitioner
filed a petition for writ of mandate arguing that the trial court improperly
denied her peremptory challenge under Code of Civil Procedure section 170.6.
and gave notice that
we may issue a peremptory writ in the first instance. (See Code Civ. Proc., § 1088;
informal opposition and reply, we now grant petitioner’s request for a
peremptory writ of mandate.
Petitioner
is the plaintiff in a wage and hour case.
We previously granted a writ following the sustaining of real parties in
interest’s demurrer without leave to amend.
(See Guerrero v. Superior Court (2013)
213 Cal.App.4th 912.) Once back at
the trial court, petitioner filed a peremptory challenge against Judge Daum, the
judge who had ruled on the demurrer.
After Judge Daum denied the challenge, petitioner filed the instant
petition. Although there is not yet a
transcript from the in camera hearing where the judge explained the basis for
his denial of the peremptory challenge, counsel for petitioner explains that
“Judge Daum stated that peremptory challenges under CCP 170.6 subd. (a)(2)
were unavailable following appellate-level reversal obtained through writ
proceedings, rather than direct appeal.
Judge Daum further stated that he had researched the matter and was
relying upon two appellate decisions for his conclusion, to wit: Peracchi
v. Superior Court of Fresno County [(]2003) 30 Cal. 4th 1245 and
Superior Court of Los Angeles County [(2004)] 121 Cal.App.4th 490, at
503.†In their informal response, real
parties do not dispute this representation and declined to argue in favor of
the trial court ruling.
Section
170.6, subdivision (a)(2), allows for a peremptory challenge to “be made
following reversal on appeal of a trial court’s decision . . .
if the trial judge in the prior proceeding is assigned to conduct a new trial
on the matter.†This appellate reversal
rule has been held to apply to writ review in the Court of Appeal resulting in
a “new trial.†(Overton v. Superior Court (1994) 22 Cal.App.4th 112.) In that case, the court recognized that “the
concern that a trial judge might be biased against a party who succeeds in
obtaining a new trial is obviously just as substantial in a writ proceeding as
it is in an appeal.†(
demand a new judge if a new trial is granted as part of writ relief.†(Ibid.)
the trial judge, does not hold differently.
There, the court found the prevailing party in a writ was not entitled
to challenge the judge upon remand because “of the limited nature of the prior
writ proceeding.†(121 Cal.App.4th
490, 493.) In the prior writ in
the trial court on a choice of law issue and the prevailing party tried to
challenge the judge on remand. When the
challenge was denied, a petition for writ of mandate was filed, which the Court
of Appeal denied. The court “assume[d],
without deciding, that [the appellate reversal rule in section 170.6] appliesâ€
to writs (id. at p. 499) but
found petitioner was not entitled to a peremptory
challenge because the statute contemplates two “trials†and there had not
been a “trial†prior to the first writ.
(Id. at pp. 499–500.) The court in State Farm “acknowledge[d] that, for the purposes of section 170.6(a)(2),
certain types of motions constitute a ‘trial.’
A motion for summary judgment falls into this
category. . . . [¶] Similarly,
the granting of an anti-SLAPP motion constitutes a ‘trial.’ [Citations.]â€
(Id. at p. 501.) The choice of law motion, however, did not
constitute a trial because it “did not ‘terminate[] the action’ [citation],â€
like a summary judgment motion. (
Thus, the
question here is whether the sustaining of a demurrer without leave to amend
constitutes a “trial†for the purposes of section 170.6. Certainly, if a summary judgment motion
qualifies as a trial for section 170.6 purposes, sustaining a demurrer without
leave to amend does as well; indeed, it would have terminated those causes of
action. Moreover, the demurrer certainly
was not an ancillary or “preliminary issue†like determining applicable
law. Therefore, petitioner was allowed
to challenging Judge Daum under the appellate reversal rule in section 170.6.
Let a peremptory writ of mandate issue commanding
respondent to withdraw its order denying petitioner’s challenge of Judge Daum
under the appellate reversal rule in section 170.6 and to enter a new and different order
consistent with this opinion.
Before Kline, P.J., Haerle, J., and Brick, J.*
*Judge of the Alameda County
Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
Further statutory references are to the Code of Civil Procedure.
