53 Cal.App.5th 1094
Cal. Ct. App.2020Background
- Plaintiff Unzueta sued Dr. Akopyan for medical malpractice; jury trial resulted in defense judgment.
- During voir dire defense counsel used seven peremptory strikes, removing six Hispanic prospective jurors; the trial court made a sua sponte Batson/Wheeler inquiry but only questioned two alternate jurors and denied relief.
- On appeal this court conditionally reversed the judgment for the limited purpose of conducting the second and third steps of the Batson/Wheeler inquiry as to all six challenged Hispanic jurors (Unzueta v. Akopyan).
- On remand Unzueta filed a peremptory disqualification motion under Code Civ. Proc. § 170.6(a)(2) to disqualify the trial judge (Judge Mohr); the trial court granted the motion.
- Akopyan sought a writ compelling vacatur of that disqualification order, arguing § 170.6(a)(2) applies only when the judge is assigned to conduct a new trial, not a limited remand to reconsider a pretrial Batson/Wheeler ruling.
- The Court of Appeal granted the writ: a conditional reversal remanded solely to rehear a pretrial Batson/Wheeler matter is not a "new trial" under § 170.6(a)(2); the trial court must defer ruling on disqualification until after it determines whether a new trial will be ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conditional reversal remanded only to conduct Batson/Wheeler steps is a "new trial" under § 170.6(a)(2) | Remand follows a trial and judgment entry, so § 170.6(a)(2) permits a peremptory disqualification | Remand is limited to a pretrial juror-bias inquiry and does not reexamine merits; not a "new trial" | Not a "new trial"; § 170.6(a)(2) does not apply to limited Batson/Wheeler remand |
| Whether the trial court properly granted the § 170.6 motion on remand before conducting the Batson/Wheeler inquiry | Motion was timely after remand and should be granted | Ruling was premature; court should defer until after Batson/Wheeler and grant only if new trial is ordered | Trial court erred; must vacate disqualification and defer ruling until after Batson/Wheeler determination |
| Whether potential for bias alone suffices to permit a § 170.6 challenge after conditional reversal | Potential bias from being reversed justifies peremptory challenge | Potential bias is insufficient; statutory scope limited by precedent (Peracchi) | Potential for bias alone does not trigger § 170.6(a)(2); statute construed narrowly |
Key Cases Cited
- Peracchi v. Superior Court, 30 Cal.4th 1245 (2003) (construed § 170.6(a)(2): remand must be for a "new trial" as defined in the codes to permit peremptory judge challenge)
- Unzueta v. Akopyan (Akopyan I), 42 Cal.App.5th 199 (2019) (conditional reversal remanding for full Batson/Wheeler reevaluation of six Hispanic juror strikes)
- Geddes v. Superior Court, 126 Cal.App.4th 417 (2005) (examples where remand for merits reexamination constitutes a "new trial")
- Burdusis v. Superior Court, 133 Cal.App.4th 88 (2005) (remand to reconsider pretrial motion not a "new trial" for § 170.6 purposes)
- State Farm Mut. Auto. Ins. Co. v. Superior Court, 121 Cal.App.4th 490 (2004) (reversal of pretrial law determination does not trigger § 170.6)
- Paterno v. Superior Court, 123 Cal.App.4th 548 (2004) (remand limited to damages or nonmerits tasks is not a "new trial")
- Stubblefield Constr. Co. v. Superior Court, 81 Cal.App.4th 762 (2000) (partial reversals requiring retrial may permit new § 170.6 challenge; discussed limits)