Judge: Jon R. Takasugi, Case: BC516094, Date: 2025-02-24 Tentative Ruling

Case Number: BC516094    Hearing Date: February 24, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE DENIAL OF PLAINTIFF’S 2^ND §170.6

Plaintiff’s preemptory challenge under CCP  is tentatively DENIED.  The matter is set for hearing on the issue and trial setting conference on February 24, 2025, at 8:30 a.m.  Supplemental briefing per code.

On 7/23/2013, Plaintiff James McDonald, representing himself in pro per, initiated this action against Dole Group, LLC, Dolce Group Concepts, LLC, Geisha House, LLC, Shereen Arazm (Defendant Koules), Michael Malin, Lonnie Moore, 914 Trust, and 603 Trust.

Now, Plaintiff seeks an order granting the preemptory challenge. Plaintiff previously exercised a peremptory challenge under §170.6 against the late Honorable Malcolm Mackey on April 2, 2021.

Stubblefield v. Construction Co. v. Superior Court (2000) 81 Cal.App.4^th 762 provides “[a]lthough as a rule a party is limited to a single peremptory challenge in a case …. the statute clearly permits an additional challenge following reversal of a judgment if the same judge is assigned to hear the case on remand.” Given the reversal and assignment to the same judge on remand here, Plaintiff has not exhausted the right to raise a 170.6 challenge, and is permitted an additional challenge.

CCP section 170.6(a)(2) provides (emphasis added):

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.

“The analysis of whether or not the meaning of “new trial” is met requires a determination of whether there has been a trial, and whether there will be a retrial… 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.” []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]” (First Fed. Bank of California v. Superior Ct. (2006) 143 Cal.App.4th 310, 314.)

As such, 170.6 is not triggered if any factual or legal determination has been made prior to the reversal. Rather, it is triggered when the reversal and remand involves a motion which would itself require “reexamination of a factual or legal issue that was in controversy in the prior proceeding.” (See Akopyan v. Superior Court (2020) 53 Cal. App. 5th 1094, 1101 (“where the Court of Appeal reverses and remands for redetermination of a motion that does not involve an evaluation of the merits of the underlying action, section 170.6, subdivision (a)(2), is not triggered.”)

            Here, the motion in question was a motion to quash for failure to prosecute. Given that the motion was granted, thereby resulting in termination of the action, the Court’s ruling can be said to constitute a “trial.” (First Federal Bank, supra, 143 Cal.App.4th at p. 299; Burdusis v. Superior Court (2005) 133 Cal. App. 4th at 88, 93.)

However, the reversal and remand does not require the Court to redetermine any motion that evaluated the merits of Plaintiff’s claim, nor does it require redetermination of the issues raised in Defendant’s motion to quash. As such, the remand does not require a “‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding. [Citations]” (First Fed. Bank of California v. Superior Ct. (2006) 143 Cal.App.4th 310, 314.)

In First Federal Bank, supra, the Court determined that “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.”  The Court reversed and remanded for a hearing on the amount to be awarded. Such a hearing “[would] 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.” (First Federal Bank, supra, 143 Cal.App.4^th 310, 299.)

Here, by contrast, the Court is not being tasked with any reexamination of any issue raised in the prior motion to quash. Rather, the Court of Appeal determined that this case was not barred by the 5-year rule or a failure to prosecute. As such, the case would now proceed on the merits, without any reexamination of any legal or factual issue previously raised.

Accordingly, CCP section 170.6 is not triggered here, as the “retrial” element is not satisfied.

It is so ordered.

Dated:  January    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court