Imperial Irrigation Dist. v. Superior Court CA4/1 ( 2020 )

Filed 11/24/20 Imperial Irrigation Dist. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
IMPERIAL IRRIGATION D078122
DISTRICT,
(Imperial County Super. Ct.
Petitioner, No. ECU07980)
v.
THE SUPERIOR COURT OF
IMPERIAL COUNTY,
Respondent;
MICHAEL ABATTI,
Real Party in Interest.
ORIGINAL PORCEEDING in mandate. L. Brooks Anderholt, Judge.
Petition granted.
Nossaman LLP and Frederic A. Fudacz, Jennifer L. Meeker, and Gina
R. Nicholls for petitioner.
No appearance for respondent.
Musick, Peeler & Garrett LLP, Theodore A. Chester, Jr., and Cheryl A.
Orr; Caldarelli Hejmanowski Page & Leer LLP, Lee E. Hejmanowski and
Marisa Janine-Page for real party in interest.
Imperial Irrigation District (the District) petitions for a writ
commanding the superior court to grant a postappeal motion to disqualify the
judge assigned to a civil action. We grant the petition.
BACKGROUND
Michael Abatti filed a petition for writ of mandate in the superior court
to invalidate a water distribution plan adopted by the District. The court
granted the petition. The court also issued a postjudgment order awarding
Abatti costs and attorney fees. The parties separately appealed the judgment
and postjudgment order. This court affirmed the judgment in part, reversed
it in part, and remanded the matter with directions to enter the proper
judgment. The Supreme Court of California denied Abatti’s petition for
review, and this court issued its remittitur. In the meantime, this court
reversed the order awarding Abatti costs and attorney fees and “remanded
for consideration of new fee and costs requests in light of the new judgment.”
Abatti did not petition the Supreme Court for review, and this court issued
its remittitur.
Fifteen days after issuance of the remittitur in the appeal from the
order awarding costs and attorney fees, the District filed a “motion for and
declaration in support of peremptory challenge” by which it sought to
disqualify the judge who had entered the judgment and postjudgment order
that were reversed on appeal, on the ground the judge was prejudiced against
the District and the District would not receive a fair and impartial trial or
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hearing before him. (Code Civ. Proc., § 170.6, subd. (a)(2), (6).)1 In an order
denying the motion, the judge ruled the District had “previously exercised a
peremptory challenge in this case. Based on the plain language of [Code of
Civil Procedure section 170.6, subdivision (a)(2)], a second peremptory
challenge is available to a party in the case of reversal on ‘a final judgment of
a trial court.’ As the order currently remitted to the court from the appellate
court is not a final judgment, but is instead ‘an order made after a judgment
made appealable’ as described in Code of Civil Procedure [section] 904.1(a)(2)
and distinguished from ‘a judgment’ under [section] 904.1(a)(1), [the District]
is not entitled to a second peremptory challenge.”
The District petitioned this court for a writ directing the superior court
to vacate the order denying the peremptory challenge and to enter a new
order granting it and to reassign the underlying action to another judge.
(Code Civ. Proc., § 170.3, subd. (d).)2 We notified the parties we were
1 “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 (4), 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.”
(Code Civ. Proc., § 170.6, subd. (a)(2).) Paragraph (4) provides in pertinent
part: “Except as provided in this section, no party or attorney shall be
permitted to make more than one such motion in any one action or special
proceeding pursuant to this section.” (Id., § 170.6, subd. (a)(4).)
2 The District alternatively sought a writ directing the superior court to
reassign the case “in the interests of justice” (Code Civ. Proc., § 170.1, subd.
(c)), on the ground the judge who entered the judgment and postjudgment
order that were reversed on appeal had “connections” to Abatti and his family
that created an appearance of bias. The District asked us to take judicial
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considering issuing a peremptory writ in the first instance and invited Abatti
to file a response to the petition. (Palma v. U.S. Industrial Fasteners, Inc.
(1984) 36 Cal. 3d 171, 178-180.) In his response, Abatti agreed with the
superior court that the District is not entitled to a second peremptory
challenge because the order awarding costs and attorney fees that was
reversed on appeal was not a “final judgment,” and alternatively argued the
challenge was not ripe because his time to petition the Supreme Court of the
United States for a writ of certiorari to review this court’s decision on the
appeal from the judgment in the underlying action has not expired.
DISCUSSION
The superior court erred by denying the District’s postappeal
peremptory challenge. When a judgment has been reversed on appeal, the
matter has been remanded for a “new trial,” and the judge who entered the
judgment has been reassigned the matter, a party may challenge the judge
within 60 days of notification of the assignment even though the party had
previously made a peremptory challenge in the matter. (Code Civ. Proc.,
§ 170.6, subd. (a)(2).) In this context, a “new trial” is required if the “court
must revisit some factual or legal issue that was in controversy in the prior
proceeding.” (Paterno v. Superior Court (2004) 123 Cal. App. 4th 548, 560.) In
the parties’ appeals in the underlying action, we reversed the judgment and
the subsequent order awarding costs and attorney fees and remanded the
matter for entry of a new judgment and reconsideration of costs and fees in
light of the new judgment. The hearing that will be required to determine
costs and fees constitutes a “new trial” within the meaning of Code of Civil
notice of a published article that described those connections. We need not
address this alternative ground to dispose of the petition and therefore deny
the motion for judicial notice. (C.C. v. Superior Court (2008) 166 Cal. App. 4th
1019, 1021, fn. 1.)
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Procedure section 170.6, subdivision (a)(2). (First Federal Bank of California
v. Superior Court (2006) 143 Cal. App. 4th 310, 315; Pfeiffer Venice Properties
v. Superior Court (2003) 107 Cal. App. 4th 761, 767-768.) The District
therefore had 60 days from notice of reassignment of the trial judge to file a
motion to disqualify him, and it did so.
We are not persuaded by Abatti’s arguments the District was not
entitled to a second peremptory challenge and the challenge was not ripe.
The order awarding Abatti costs and attorney fees that was reversed on
appeal may be considered a “final judgment” for purposes of the statutory
provisions allowing a party who previously filed a peremptory challenge to
file a second one after a reversal on appeal. (Code Civ. Proc., § 170.6, subd.
(a)(2), (4).) The order finally resolved “a collateral matter, ancillary to the
main cause,” and “is substantially the same as a final judgment in an
independent proceeding.” (Henneberque v. City of Culver City (1985) 172
Cal. App. 3d 837, 841-842; accord, Apex LLC v. Korusfood.com (2013) 222
Cal. App. 4th 1010, 1015-1016; Los Angeles Times v. Alameda Corridor
Transportation Authority (2001) 88 Cal. App. 4th 1381, 1388-1389.) Treating
the order as a “final judgment” (Code Civ. Proc., § 170.6, subd. (a)(2)) also
furthers the purpose of the statutory provisions allowing a party to make a
second peremptory challenge after a reversal on appeal, which is “to avoid
potential bias on the part of a judge who has been reversed on appeal”
(Geddes v. Superior Court (2005) 126 Cal. App. 4th 417, 423). To avoid any
potential bias in the new determination of costs and attorney fees this court
ordered the superior court to make on remand, the District had a right to,
and did, file a peremptory challenge within 60 days of the notice of
reassignment of the case to the same trial judge. (Code Civ. Proc., § 170.6,
subd. (a)(2).) Therefore, even though the time to petition the Supreme Court
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of the United States for a writ of certiorari to review this court’s decision on
the appeal from the judgment has not yet expired, the current need for a
hearing on costs and attorney fees in the superior court “is sufficient to
present a ‘definite and concrete [controversy] touching the legal relations of
parties having adverse legal interests.’ [Citation.] The ripeness requirement
is satisfied.” (Coral Construction, Inc. v. City and County of San Francisco
(2004) 116 Cal. App. 4th 6, 26.)
Where, as here, “a party timely files, in proper form, a motion to
disqualify a judge based upon [Code of Civil Procedure section 170.6], the
trial court is bound to accept the disqualification without further inquiry.”
(The Home Ins. Co. v. Superior Court (2005) 34 Cal. 4th 1025, 1032.) To
correct the superior court’s error in refusing to do so, a peremptory writ in the
first instance is appropriate. There are no material facts in dispute, the
applicable law is settled, the District is clearly entitled to relief,
disqualification issues require prompt resolution, and no useful purpose
would be served by plenary consideration of the issue. (Code Civ. Proc.,
§ 1088; Lewis v. Superior Court (1999) 19 Cal. 4th 1232, 1240-1241; Frisk v.
Superior Court (2011) 200 Cal. App. 4th 402, 416.)
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DISPOSITION
Let a writ issue commanding respondent, immediately upon receipt of
the writ, to vacate its October 8, 2020 order denying the District’s motion to
disqualify the trial judge (peremptory challenge) and to enter a new order
granting the motion. The parties shall bear their own costs. (Cal. Rules of
Court, rule 8.493(a)(1)(B).)
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
GUERRERO, J.
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