First Federal Bank of California v. Superior Court

Opinion ZELON, J. Petitioner, First Federal Bank of California, seeks a writ of mandamus, asserting that the denial of its peremptory challenge after remand from this court violated Code of Civil Procedure section 170.6. Because our remand required the trial court to conduct additional proceedings on the issue of attorney’s fees, we find the peremptory challenge should have been allowed, grant the writ, and remand. FACTUAL AND PROCEDURAL BACKGROUND This matter began as an action by real party in interest, Prestige of Beverly Hills, Inc. (Prestige) against Petitioner First Federal Bank of California (First Federal) for breach of contract, breach of California Uniform Commercial Code section 4401, negligence and conversion.1 Following First Federal’s successful motion for summary judgment and award of attorney’s fees, this court reversed and remanded the matter to the trial court. After jury trial, the court entered judgment for First Federal, but denied its motion for attorney’s fees as a matter of law. Both parties appealed to this court, which affirmed the judgment, but reversed the determination that First Federal was not entitled to attorney’s fees and remanded for further proceedings on that motion. After remand, the matter was returned to the trial judge who had presided over the jury trial and motion for attorney’s fees. Citing Code of Civil Procedure section 170.6,2 First Federal filed a peremptory challenge. On May 18, 2006, the court denied the motion, finding that the remand was not for a new trial because the sole issue to be decided was the amount of attorney’s [313] fees to be awarded. First Federal filed this petition for writ of mandate on May 26, 2006. The parties fully briefed the matter after this court issued an order to show cause. DISCUSSION First Federal asserts that its motion for disqualification should have been granted pursuant to section 170.6, subdivision (a)(2),3 which allows a successful party on appeal to file a peremptory challenge after reversal when the same trial judge is assigned to conduct a new trial on remand. Section 170.6 allows such a challenge to avoid potential bias by a judge reversed on appeal. (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 423 [23 Cal.Rptr.3d 857] (Geddes).) The scope of the right turns on the definition of the term “retrial.” This is not an issue that has proved capable of mechanical application. Where the task to be performed on remand is merely ministerial in nature, there is no retrial within the meaning of the statute. (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575 [284 Cal.Rptr. 495].) However, “the applicability of [section 170.6] does not turn on . . . whether the issue(s) to be resolved on remand are limited, but what the court must do to resolve them.” (Id. at p. 576.) First Federal contends that the statute must be broadly construed to avoid any potential bias, and that, in any event, determination of the amount of attorney’s fees to be awarded is not ministerial in nature. Prestige contends that the task before the trial court is ministerial in nature, in light of the fact that the legal determination of entitlement has been made by this court and cannot be revisited. Moreover, Prestige asserts that no reexamination of the facts will take place, as the trial court never considered the facts in making its initial determination. While the statute is silent as to the meaning of the term “new trial,” we do not write on a clean slate. The Supreme Court has rejected the notion, asserted by petitioner, that the statute is to be given a liberal construction, citing the danger of judge shopping posed by its provisions. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1263 [135 Cal.Rptr.2d 639, 70 P.3d [314] 1054] (Peracchi).) This court has examined the matter as well, and has examined the views of other courts that have addressed the issue. The analysis requires a determination of whether there has been a trial, and whether there will be a retrial. We have previously concluded that the dividing line in determining whether there had been a trial was whether the trial court’s initial decision had “either addressed the merits or otherwise terminated the case.” (Burdusis v. Superior Court (2005) 133 Cal.App.4th 88, 93 [34 Cal.Rptr.3d 575] (Burdusis)) We have also addressed the issue of retrial, concluding that a retrial is a “ ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding. [Citations]” (Geddes, supra, 126 Cal.App.4th at p. 424.) Prestige urges this court to follow Paterno v. Superior Court (2004) 123 Cal.App.4th 548 [20 Cal.Rptr.3d 282], Paterno, however, does not assist in the decision of the case before us. That case involved a complex series of trials, in which two groups of plaintiffs participated in inverse condemnation proceedings; liability had been formally severed from damages. The group of plaintiffs who sought to disqualify the trial court after remand had not participated in the liability trial, but were nonetheless bound by the factual and legal determinations, excepting damages. (Id. at p. 552.) Thus they came before the trial court on an issue that had not been before that court in any form. The Paterno Court concluded, based on the Supreme Court’s decision in Peracchi, (Peracchi, supra, 30 Cal.4th 1245) that the statute could not properly be broadly construed. (Paterno v. Superior Court, supra, 123 Cal.App.4th at p. 558.) Examining the meaning of new trial, the court concluded that 170.6 applies only where the trial court is called upon “to reexamine issues litigated in the prior proceeding” (Paterno, at p. 561), a conclusion shared by this court in Geddes. (Geddes, supra, 126 Cal.App.4th at p. 424.) Given the procedural posture of Paterno, however, no reexamination was required as neither the plaintiffs, nor any of the factual or legal issues relating to damages, had been before the trial court. The same is not true here where, on remand, the trial court must return to the very motion it denied, and on which it was reversed. As with the summary judgment considered in Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762, 765-766 [97 Cal.Rptr.2d 121], the trial court in this case made a legal determination that did not require it to review the facts; the court having erred in the “crucial decision [315] of law” (id. at p. 766), the proceedings on remand are properly considered a new trial within the meaning of the statute. The determination required is unlike the action required to state the reasoning for a summary judgment (Geddes, supra, 126 Cal.App.4th 417) or to consider new authority concerning class certification (Burdusis, supra, 133 Cal.App.4th 88). Here, it is clear that there was a trial, even limiting the examination to the attorney’s fees motion. The trial court made a determination on the merits that First Federal was not entitled to recover its attorney’s fees. Reversing that order, we remanded for a hearing on the amount to be awarded, a hearing that will require the presentation of evidence and factual and legal determinations as to the nature and amount of the fees sought. Such a reexamination of an issue previously in controversy is a retrial. The trial court erred in rejecting the motion. DISPOSITION The writ is granted and the matter remanded for reassignment to make the determinations required by our prior opinion in this matter. Petitioner is to recover its costs on appeal. Johnson, J., concurred. Footnotes [1] The summary of facts is drawn from our prior opinion in Prestige of Beverly Hills, Inc. v. First Federal Bank of California (Feb. 6, 2006, B175403) (nonpub. opn). [2] All further statutory references are to the Code of Civil Procedure. [3] Section. 170.6, subdivision (a)(2) 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.”