Larry W Lawson et al v Shadow Hills Single Family Lots Owners’ Association et al

Case Number

19CV00454

Case Type

Hearing Date / Time

Wed, 06/12/2024 - 10:00

Nature of Proceedings

Disqualification

Tentative Ruling

Plaintiffs: James Sabovich

Defendants George & Mary Guffey: Craig Granet, Claire Mitchell

Defendants/Cross Complainants Shadow Hills of SB Master Assoc & Shadow Hills Single Family Lots Owner’s Assoc: Arthur Petrie

Cross Defendants Nancy Duong & Larry Lawson: Barry Ross

Claimant Barry Ross: Pro Per

Issue

Disqualification

RULING

The 170.6 disqualification is proper. The case has apparently been assigned to Judge Sterne and set for 8/12/24.

The Court’s Conclusions

The 170.6 disqualification is procedurally proper. As to timeliness, while the matter is on appeal and until the issuance of the remittitur, this Court is without jurisdiction.

“Until the remittitur issues, the trial Court cannot act upon the reviewing Court’s decision. [Citation.] The remittitur is not issued until the appellate opinion is final for all purposes. [Citation.] The issuance of remittitur is the act by which the reviewing Court transfers jurisdiction to the Court reviewed. [Citation.] When the remittitur issues, the jurisdiction of the reviewing Court terminates, and the jurisdiction of the trial Court reattaches.” (In re Anna S. (2010) 180 Cal.App.4th 1489, 1500.)

The 170.6 disqualification is technically a motion. (Code Civ. Proc., § 170.6, subd. (a)(2) [“A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion ….”].) The Court thus has no jurisdiction, and the filing of the disqualification would be improper, until the issuance of the remittitur. The 170.6 disqualification was timely filed relative to the issuance of the remittitur.

With respect to the issue of whether there is a “new trial” to invoke section 170.6 upon reversal: “Section 170.6 applies only where the matter is to be retried, not where it is remanded with instructions that require the trial Court to complete a judicial task not performed in the prior proceeding. In the context of this statute, a retrial is 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, 423–424, fn. omitted.)

“Although section 170.6(a)(2) does not contain a definition of the term ‘new trial,’ that term is expressly defined in section 656. We presume that the Legislature, in enacting the 1985 amendment, did not choose the term ‘new trial’ by accident [citation], but intended to refer to the statutory definition found in the same code it was amending [citation].”

“Section 656 says: ‘A new trial is a reexamination of an issue of fact in the same Court after a trial and decision by a jury, Court or referee.’ The statute on its face appears limited to reexamination of factual issues. However, it is reasonable to suggest that the Legislature intended the term to cover legal issues as well. This inference flows from the fact that the preceding subdivision of section 170.6 provides that peremptory challenges may be exercised in any proceeding involving a contested issue of law or fact. [Fn.]

“Regardless of subject matter however, section 656 leaves no doubt that a new trial must consist of a ‘reexamination.’ To conduct a reexamination, a Court must revisit some factual or legal issue that was in controversy in the prior proceeding. All the civil appellate decisions we have reviewed here are consistent with this principle.” (Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 559–560.)

The disposition of the appeal is a reversal as to the first six causes of action. The Court of Appeal stated: “Remanding for a jury trial on the first six causes of action is therefore proper. [Citation.] We leave it to the Court below to decide in the first instance whether its decision on the seventh, eighth, and ninth causes of action obviates the need for a jury trial on any of the remaining causes of action.” (Slip op., at p. 7.) The Court of Appeal stated in the next paragraph: “Because we reverse the judgment on the first six causes of action, we vacate the attorney fee awards. The Court below may reconsider the attorney fee awards after any trial that occurs on remand.” (Ibid.)

The Court is required by the Court of Appeal to reexamine its determination of the first six causes of action, including the legal determination of whether there is any preclusive effect of the determinations made on other causes of action that have been affirmed on appeal. This would fall within the meaning of a “new trial” as expressed in these cases. Put differently, if this Court were to follow the defense argument and then were to decide that a jury trial was required on some issue, the Plaintiff would be completely denied the opportunity to use the 170.6 disqualification upon reversal because by then it would be too late. This is plainly not the intent of the statute.