Your Appellate Get Out of Jail Free Card

Stuck with an all-purpose judge who hates your client’s guts? Used up your peremptory challenge and then got assigned to a judge who always rules against you? Don’t forget about your appellate “get out of jail free” card.

Attorneys know that they get one peremptory challenge under Code of Civil Procedure section 170.6. What they may not realize is that the second paragraph section 170.6(a)(2) provides that either party can exercise an additional peremptory challenge against the trial judge:

“[F]ollowing 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.” Code Civ. Proc., § 170.6(a)(2); Pfeiffer Venice Properties v. Superior Court, 107 Cal. App. 4th 761, 764 (2003) (statute authorizes post-appeal peremptory challenges by either an appellant or a respondent).

In fact, notwithstanding the normal one peremptory challenge restriction (Code Civ. Proc. § 170.6(a)(4)), a prevailing appellant who has already used their peremptory challenge can nonetheless exercise a second peremptory challenge:

“[T]he 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.” Code Civ. Proc. § 170.6(a)(2).

Although the statute’s text refers solely to reversal on appeal, the appellate peremptory challenge provision has been construed by some courts as applicable to successful writ petitions as well. Overton v. Superior Court, 22 Cal. App. 4th 112, 114-15 (1994); see also State Farm Mutual Automobile Insurance v. Superior Court, 121 Cal. App. 4th 490, 499 (2004) (assuming, without deciding, that provision applies to writ petitions). Writ petitions can be used to challenge a variety of trial court rulings, such as decisions on venue, quashing service, disqualification of counsel, denial of trial preference, expunging a lis pendens, contempt, and sanctions (including discovery sanctions) of $5,000 or less. While writ petitions are infrequently granted, due to section 170.6(a)(2), a writ petition may be worth pursuing when your client is saddled with an unfavorable judge.

The case law applying section 170.6(a)(2) can be murky and not entirely consistent. Earlier cases tend to interpret the statute more expansively. More recent cases tend to limit the applicable circumstances. Compare People v. Superior Court (Maloy), 91 Cal. App. 4th 391, 397 (2001) (“cases consistently apply a broad construction to section 170.6”) with McNair v. Superior Court, 6 Cal. App. 5th 1227, 1234 (2016) (“allowing a second peremptory challenge … is to be strictly construed”).

Availability of a section 170.6(a)(2) challenge usually turns on whether (1) the remand requires a “new trial” and (2) whether the appeal was from a “final judgment.”

As to the first, there is no doubt that section 170.6(a)(2) applies when an appellate court reverses and remands for a new trial on all issues. State Farm, at 492. There also is consensus that the statute does not apply when a remand is solely for performance of a ministerial act by the trial court, like calculation of interest—no new “trial” is required there. Id. at 496-97. Between these two ends of the spectrum, appellate courts are in conflict. One line of decisions holds that if a remand requires the court to do anything in more than a ministerial manner, a post-remand peremptory challenge is available. Pfeiffer, at 768.

However, another line of decisions holds that what is important is “not … whether the judge is performing discretionary or ministerial tasks, but whether the post-appeal hearing requires reexamination of contested issues of fact or law.” Paterno v. Superior Court, 123 Cal. App. 4th 548, 561, n.8 (2004); State Farm, at 503 (“application of section 170.6(a)(2) does not rest solely on whether the trial judge is to perform a ministerial task after reversal. The statute requires—as variously phrased by the courts—an ‘actual retrial,’ a ‘new trial,’ or that a case be ‘retried’ or ‘reopened.’”).

As to the second requirement under section 170(a)(2), besides appeals from traditional final judgments, courts have held that appeals of some motions are sufficiently analogous to final judgments to trigger the statute, and that even a partial reversal and remand on a “limited issue” can merit availability of a peremptory challenge so long as that limited issue must be “retried.” State Farm, at 501; Stegs Investments v. Superior Court, 233 Cal. App. 3d 572, 576 (1991).

Motions that have been treated as justifying application of section 170.6(a)(2) include summary judgment, anti-SLAPP motions, denial of attorney fee claims, demurrers, motions to dismiss, judgment on the pleadings, judgment for failure to state a cause of action, a directed judgment after a plaintiff’s opening statement or at the close of a plaintiff’s evidence, a directed verdict, and judgment on an agreed statement of ultimate facts. State Farm, at 498, 501-502 (summarizing prior cases treating reversed motions as triggering section 170.6(a)(2)); People v. Superior Court (Maloy), at 397 (section 170.6(a)(2) case cataloguing rulings constituting a “new trial”).

Most cases analyzing whether section 170.6 applies look to other statutory definitions of “new trial”—principally, but not exclusively, the definition found in Code of Civil Procedure section 656, which provides: “A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” State Farm, at 497, 500. This has led some courts to conclude that section 170.6 applies only where the remand requires a reexamination of the same factual or legal issue that was in controversy in the prior proceeding, and that a remand which only requires the trial court to complete a judicial task not completed in the prior proceeding does not result in peremptory challenge rights. Geddes v. Superior Court, 126 Cal. App. 4th 417, 423-24 (2005).

For these reasons, the application of section 170.6(a)(2) to an individual case is often an idiosyncratic analysis. But, while a section 170.6 analysis is sometimes complex, in an appropriate case it can provide litigants with a welcome rescue from a hostile courtroom.

Robert Roth is a partner with the Complex Appellate Litigation Group, an appellate boutique with offices in San Francisco, Los Angeles, San Diego, and Newport Beach. He has more than 30 years of experience as an appellate practitioner and is widely considered one of the leading family law appellate specialists in California. Find out more about Roth and the Complex Appellate Litigation Group at www.calg.com.

This article originally appeared in the The Recorder on November 21, 2023.

This article is copyright © in the year of publication above.