gno.law

Imperial Irrigation Dist. v. Superior Court CA4/1

California Court of Appeal · D078122 · 2020-11-24 · Unpublished

Area
civil
Panel
Judith D. McConnell (author), Patricia D. Benke, Patricia Guerrero

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:18Z · confidence high

The trial court denied the Imperial Irrigation District's motion for a second peremptory challenge against the trial judge, ruling that the reversed postjudgment order for costs and fees was not a 'final judgment' under Code of Civil Procedure section 170.6. The Court of Appeal granted the petition for a writ of mandate, holding that the order constituted a final judgment for this purpose and that the trial court was bound to accept the disqualification.

Ruling reviewedStandardThe courtThe model
Denial of the District's motion for a second peremptory challenge under Code of Civil Procedure section 170.6, subdivision (a)(2).
“The superior court erred by denying the District’s postappeal peremptory challenge.”
de novoerroragree with court
The appellate court correctly applied the plain language of Code of Civil Procedure section 170.6, subdivision (a)(2), which allows a second challenge after a reversal on appeal. It properly relied on established case law (Henneberque, Apex, Los Angeles Times) to classify the reversed costs order as a 'final judgment' for this specific statutory purpose, and correctly applied the mandatory disqualification rule from The Home Insurance Co. v. Superior Court.

Authorities

  • relied: Paterno v. Superior Court (2004) 123 Cal.App.4th 548 — A 'new trial' is required if the court must revisit some factual or legal issue that was in controversy in the prior proceeding.
  • relied: First Federal Bank of California v. Superior Court (2006) 143 Cal.App.4th 310 — A hearing to determine costs and fees constitutes a 'new trial' within the meaning of Code of Civil Procedure section 170.6, subdivision (a)(2).
  • relied: Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761 — A hearing to determine costs and fees constitutes a 'new trial' within the meaning of Code of Civil Procedure section 170.6, subdivision (a)(2).
  • relied: Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837 — An order finally resolving a collateral matter ancillary to the main cause is substantially the same as a final judgment in an independent proceeding.
  • relied: Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010 — An order finally resolving a collateral matter ancillary to the main cause is substantially the same as a final judgment in an independent proceeding.
  • relied: Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381 — An order finally resolving a collateral matter ancillary to the main cause is substantially the same as a final judgment in an independent proceeding.
  • relied: Geddes v. Superior Court (2005) 126 Cal.App.4th 417 — The purpose of allowing a second peremptory challenge after a reversal on appeal is to avoid potential bias on the part of a judge who has been reversed.
  • relied: Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6 — The ripeness requirement is satisfied when there is a definite and concrete controversy touching the legal relations of parties having adverse legal interests.
  • relied: The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025 — Where a party timely files a motion to disqualify a judge based on section 170.6, the trial court is bound to accept the disqualification without further inquiry.
  • relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate when there are no material facts in dispute, the applicable law is settled, and the petitioner is clearly entitled to relief.
  • relied: Frisk v. Superior Court (2011) 200 Cal.App.4th 402 — A peremptory writ in the first instance is appropriate when there are no material facts in dispute, the applicable law is settled, and the petitioner is clearly entitled to relief.
  • relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedural authority for issuing a peremptory writ in the first instance.
  • relied: C.C. v. Superior Court (2008) 166 Cal.App.4th 1019 — Authority for denying a motion for judicial notice when the court need not address the alternative ground to dispose of the petition.

The appellate opinion: sound — The opinion is sound because it correctly interprets the statutory definition of 'final judgment' in the context of section 170.6 by relying on consistent appellate precedent treating ancillary orders as final judgments for this purpose. It also correctly applies the mandatory nature of section 170.6 disqualifications and the standard for issuing a peremptory writ in the first instance.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The Imperial County Superior Court denied Imperial Irrigation District's postappeal peremptory challenge under Code of Civil Procedure section 170.6, subdivision (a)(2), reasoning that the District had already used one challenge and the reversed postjudgment order awarding costs and attorney fees to Abatti was not a 'final judgment' that would permit a second challenge. The Court of Appeal issued a peremptory writ in the first instance, holding the fee order was a final judgment for section 170.6 purposes, the remand for a new fee determination was a 'new trial,' the challenge was timely and ripe, and the trial court was bound to accept it.

Ruling reviewedStandardThe courtThe model
Denial of the District's section 170.6, subdivision (a)(2) postappeal peremptory challenge on the ground that the reversed costs-and-fees order was not a 'final judgment' and the District had already used its one peremptory challenge.
“The superior court erred by denying the District’s postappeal peremptory challenge.”
unclearerror (statutory interpretation)agree with court
The opinion does not state a standard of review, but it treats the question as one of statutory interpretation on undisputed facts (noting 'the applicable law is settled' and 'no material facts in dispute'), which is functionally de novo. The reasoning is coherent: Paterno supplies the test for a 'new trial' (court must revisit a contested factual or legal issue), First Federal Bank and Pfeiffer Venice hold a post-reversal fee hearing qualifies, and Geddes identifies the statutory purpose of avoiding bias by a reversed judge. The weaker link is treating a postjudgment fee order as a 'final judgment' by borrowing collateral-order appealability cases (Henneberque, Apex, L.A. Times) that construe section 904.1, not section 170.6; the trial court's textual distinction between section 904.1(a)(1) judgments and (a)(2) postjudgment orders is not directly answered, and the court does not note that the main judgment itself was also reversed in part. Still, the purposive reading is consistent with the authorities cited and the Supreme Court's instruction in Home Ins. Co. that a timely, proper section 170.6 motion must be accepted without further inquiry, so the result is defensible.
The District's alternative request for reassignment 'in the interests of justice' under section 170.1, subdivision (c) based on the judge's alleged connections to Abatti, with an accompanying request for judicial notice of a published article.
“We need not address this alternative ground to dispose of the petition and therefore deny the motion for judicial notice.”
unclearnot reachedagree with court
Because the court granted relief on the section 170.6 ground, it properly declined to reach the alternative section 170.1(c) argument and denied judicial notice of material relevant only to that argument, citing C.C. v. Superior Court. This is a routine and appropriate exercise of judicial restraint.

Authorities

  • relied: Paterno v. Superior Court (2004) 123 Cal.App.4th 548 — For section 170.6, subdivision (a)(2), a 'new trial' occurs after reversal when the trial court must revisit some factual or legal issue that was in controversy in the prior proceeding.
  • relied: First Federal Bank of California v. Superior Court (2006) 143 Cal.App.4th 310 — A hearing on remand to redetermine attorney fees after reversal is a 'new trial' permitting a postappeal peremptory challenge.
  • relied: Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761 — Proceedings on remand that require the trial court to reexamine contested issues constitute a 'new trial' under section 170.6, subdivision (a)(2).
  • relied: Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837 — An order finally resolving a collateral matter ancillary to the main cause is substantially the same as a final judgment in an independent proceeding.
  • relied: Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010 — A postjudgment order finally disposing of a collateral matter such as fees is treated as a final judgment for appealability purposes.
  • relied: Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381 — Orders finally resolving collateral matters are appealable as final judgments on those matters.
  • relied: Geddes v. Superior Court (2005) 126 Cal.App.4th 417 — The purpose of permitting a second peremptory challenge after reversal is to avoid potential bias on the part of a judge who has been reversed on appeal.
  • relied: The Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025 — When a party timely files a proper section 170.6 motion, the trial court is bound to accept the disqualification without further inquiry.
  • relied: Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6 — Ripeness is satisfied where there is a definite and concrete controversy touching the legal relations of parties with adverse legal interests.
  • relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedure for issuing a peremptory writ in the first instance after notice to the parties and an opportunity to respond.
  • relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate where the facts are undisputed, the law is settled, and petitioner's entitlement to relief is clear.
  • relied: Frisk v. Superior Court (2011) 200 Cal.App.4th 402 — Disqualification disputes warrant prompt resolution by peremptory writ in the first instance.
  • relied: C.C. v. Superior Court (2008) 166 Cal.App.4th 1019 — A court may deny judicial notice of material not necessary to its disposition.
  • missed: Peracchi v. Superior Court (2003) 30 Cal.4th 1245 — The Supreme Court construed 'new trial' in section 170.6, subdivision (a)(2), holding a remand for resentencing after reversal of a sentence is not a 'new trial'; as the controlling Supreme Court interpretation of the very provision at issue, it arguably should have been acknowledged even though the Paterno test the court applied is consistent with it.

The appellate opinion: sound with gaps — The opinion correctly identifies the governing statute, applies the Paterno/First Federal line to find the remanded fee hearing is a 'new trial,' and relies on Home Ins. Co. for the rule that a timely proper challenge must be accepted, reaching a result consistent with the statute's anti-bias purpose. It is thinner in explaining why collateral-order appealability cases under section 904.1 control the meaning of 'final judgment' in section 170.6, does not engage the trial court's textual distinction between section 904.1(a)(1) and (a)(2), does not cite the Supreme Court's Peracchi decision construing the same provision, and does not mention that the main judgment was itself partially reversed, which might have offered a more direct path to the same result.

How this analysis was made · dispute it

Opinion

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 2 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 3 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.) 4 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 5 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.)

6 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.

Cites, in this corpus