Filed 2/29/16 Nguyen v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

HANH NGUYEN, a Minor, etc.,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA 

CLARA COUNTY

Respondent,

WESTERN DIGITAL CORPORATION,

Real Party in Interest.

 No. H042016

 (Santa Clara County 

 Super. Ct. No. 110CV185748)

The Code of Civil Procedure provides that on remand “following reversal on 

appeal of a trial court’s decision” or “final judgment,” a party is entitled to a peremptory 

challenge “if the trial judge in the prior proceeding is assigned to conduct a new trial on 

the matter.” (Code of Civ. Proc., § 170.6, subd. (a)(2).)1 In this writ proceeding, we 

consider whether a party who obtains a reversal of a judgment of dismissal based on an 

order sustaining a demurrer without leave to amend is entitled to a postappeal peremptory 

challenge of the judge who sustained the demurrer and entered the judgment when the 

case is reassigned to that same judge for case management.

 

1

Further statutory references are to the Code of Civil Procedure.
2

We hold that (1) a judgment of dismissal based on an order sustaining a demurrer 

is a “final judgment” that may trigger the right to a postappeal peremptory challenge 

under section 170.6; and (2) this case has been remanded to the trial court “to conduct a 

new trial” within the meaning of section 170.6, subdivision (a)(2) since the case has been 

reopened and may require an actual trial. We hold further that the 60-day period for 

making a postappeal peremptory challenge began to run in this case when the parties 

were notified the matter was reassigned for case management to the judge whose decision

had been reversed on appeal. We shall therefore issue a peremptory writ of mandate 

directing respondent court to vacate its order denying the peremptory challenge and to 

enter a new and different order granting the challenge.

FACTS

The facts and procedural history are based on the exhibits Petitioner Hanh Nguyen 

(Hanh)2submitted in support of her writ petition, as well as this court’s published opinion 

in the appeal that resulted in reversal of the judgment of dismissal. (Nguyen v. Western 

Digital Corp. (2014) 229 Cal.App.4th 1522, 1528 (Nguyen).)

Hanh was born with agenesis of the corpus callosum (a condition affecting the 

structure of the brain) and other birth defects. Hanh alleges her birth defects were caused 

by her mother’s occupational exposure to hazardous materials and toxic substances at a 

semiconductor manufacturing facility owned and operated by real party in interest 

Western Digital Corporation (WDC). Hanh’s mother, Lan Tran, worked in “clean 

rooms” at WDC’s Santa Clara facility for 11 years, including when she was pregnant 

with Hanh, who was born in August 1994. 

 

2

 In the prior appeal, we referred to Hanh Nguyen and members of her family by 

their first names to avoid confusion. (Nguyen, supra, 229 Cal.App.4th at pp. 1528-1529.) 

We will continue to use first names in this writ proceeding.
3

Hanh alleges her parents did not know her birth defects were caused by exposures 

to toxic substances at WDC until December 2008, when members of her family heard on 

the radio that certain attorneys were investigating cases of birth defects caused by 

chemical exposures in the semiconductor industry. Hanh’s family retained those 

attorneys to investigate Hanh’s injuries and to represent her in this action. Hanh alleges 

that after the attorneys investigated her case, her parents learned for the first time that her 

injuries were due to exposure to hazardous materials and toxic substances at WDC. 

PROCEDURAL HISTORY

I. Demurrer and Judgment of Dismissal

Hanh filed her original complaint in October 2010. By that time, Hanh was 

16 years old. WDC responded to Hanh’s complaints with a series of demurrers. The 

operative pleading is the third amended complaint. 

In its demurrers, WDC argued that Hanh’s claims were barred by the six-year 

limitations period in section 340.4 for birth and pre-birth injuries. WDC also argued that 

Hanh had failed to plead sufficient facts to demonstrate delayed accrual under the 

discovery rule. 

In opposition, Hanh argued that her claims were subject to the two-year limitations 

period in section 340.8 for injuries caused by exposure to hazardous materials, not the 

limitations period in section 340.4 for injuries caused before or during birth. (For clarity, 

we will sometimes use the parenthetical “(pre-birth injuries)” after references to section 

340.4 and the parenthetical “(toxic exposures)” after references to section 340.8.) Hanh 

also argued that (1) her claims were timely under section 340.8 (toxic exposures) based 

on both tolling for minority and insanity (§ 352) and delayed accrual under the discovery 

rule, and (2) even if her claims were subject to section 340.4 (pre-birth injuries), they 

were not time-barred under the discovery rule. 
4

The trial court sustained WDC’s demurrer to the third amended complaint without 

leave to amend. The court found Hanh’s claims were time-barred under section 340.4 

(pre-birth injuries). The court also concluded that by the time Lan stopped working for 

WDC in 1998, she would have had a suspicion there could be a causal connection 

between her occupational exposures and Hanh’s injuries, and the statute of limitations 

would have begun to run. The court subsequently entered a judgment of dismissal. 

II. Appeal Following Judgment of Dismissal

Hanh appealed the judgment. Construing both section 340.4 and section 340.8, 

this court held that claims based on birth or pre-birth injuries due to exposure to 

hazardous materials or toxic substances are subject to section 340.8’s two-year 

limitations period for toxic exposures. (Nguyen, supra, 229 Cal.App.4th at p. 1528.) The 

court also held that since Hanh is entitled to tolling for minority that applies to such 

claims, her action––filed when she was 16 years old––was timely. (Nguyen, at p. 1528.) 

This court reversed the judgment and remanded the case to the trial court to vacate its 

previous order and enter a new order overruling the demurrer. (Id. at pp. 1528, 1555.) 

The California Supreme Court denied WDC’s petition for review on December 17, 2014. 

This court issued its remittitur on December 18, 2014. 

III. Postappeal Proceedings in the Trial Court

On December 19, 2014, the superior court issued a notice scheduling a “Case 

Status Review” for February 5, 2015, before the same judge who had sustained the 

demurrer, granted the judgment of dismissal, and whose decision had been reversed on 

appeal. Hanh’s attorney appeared for the review hearing. The judge asked the parties to 

prepare a new order on WDC’s demurrers that complied with the decision on appeal. 

The judge also set the matter for a further case status hearing on April 21, 2015. 
5

The next day, Hanh filed a motion for peremptory challenge based on section 

170.6, subdivision (a)(2). The motion requested that “the trial or hearing, which involves 

a contested issue of law or fact, and which has been assigned to [the same judge], be 

reassigned . . . , and that no matters hereinafter arising in this cause be heard or assigned 

to [the same judge], on the ground that [the same judge] is prejudiced against” Hanh. 

On February 9, 2015, the clerk of the court sent a “Request for Action” form to the 

judge with the peremptory challenge attached. The clerk marked the box “For your 

review and instruction” and asked: “Is challenge timely?” The judge responded, “No. 

Grant v. Superior Court (2001) 90 Cal.App.4th 518 [(Grant)].” The court did not 

schedule a hearing on the motion and did not request a response from WDC.

IV. Writ Proceedings in This Court

On February 26, 2015, Hanh filed a petition for writ of mandate, asking this court 

to direct the trial court to vacate its order denying the peremptory challenge and enter a 

new order granting the challenge. We requested and received preliminary opposition 

from WDC. Hanh filed a reply brief.

On June 4, 2015, this court received a letter from Hanh’s counsel with information 

regarding trial court proceedings that occurred after Hanh filed her petition for writ of 

mandate. According to the letter, WDC filed a motion for summary judgment on June 2, 

2015, which was scheduled for hearing before the same trial judge whose decision had 

been reversed on appeal.

On June 24, 2015, Hanh made a motion in this court to temporarily stay the 

proceedings in the trial court pending our decision in this writ proceeding. According to 

Hanh, in addition to WDC’s motion for summary judgment, the parties filed three 
6

discovery motions after the court denied her peremptory challenge.

3

 WDC opposed the 

request for a stay. On July 2, 2015, to permit further consideration of the issues raised by 

the writ petition, we issued an order staying all trial court proceedings.

DISCUSSION

I. Standard of Review

Appellate courts have reached different conclusions regarding the appropriate 

standard of review of the denial of a section 170.6 peremptory challenge. Several 

appellate decisions have reviewed denials of such challenges under the abuse of 

discretion standard. (Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315 

(Zilog); see also Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098; 

Grant, supra, 90 Cal.App.4th at p. 523.) “Other courts have observed that, ‘[i]n deciding 

a section 170.6 motion, the trial court has no discretion’ so it is ‘appropriate to review a 

decision granting or denying a peremptory challenge under section 170.6 as [a question] 

 

3

 After Hanh filed her writ petition, she submitted three additional exhibits to this 

court relating to matters that occurred after the trial court denied her peremptory 

challenge. Those exhibits include: (1) WDC’s case management conference statement 

filed (Exhibit 14); (2) WDC’s notice of motion for summary judgment filed (Exhibit 15); 

and (3) WDC’s proof of service of its motion for summary judgment (Exhibits 16). 

Generally, an appellate court will not consider documents or facts that were not before 

the trial court when it made the ruling under review. (BGJ Associates v. Superior Court

(1999) 75 Cal.App.4th 952, 957-958; Doers v. Golden Gate Bridge, etc. Dist. (1979) 

23 Cal.3d 180, 184, fn. 1.) We review the correctness of a judgment or order “as of the 

time of its rendition, upon a record of matters [that] were before the trial court for its 

consideration.” (In re Zeth S. (2003) 31 Cal.4th 396, 405; § 1110; Cal. Rules of Court, 

rule 8.4(2).) Matters that occur after rendition of the challenged judgment or order will 

generally be disregarded by the appellate court. (Reserve Ins. Co. v. Pisciotta (1982) 

30 Cal.3d 800, 813.) There are exceptions to this rule, none of which apply here. (Ibid.; 

see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter 

Group 2015) ¶¶ 8:176-8:188, pp. 8-136 to 8-141.) We shall hereafter disregard the 

motions filed in the trial court after the court denied Hanh’s peremptory challenge, as 

well as Hanh’s Exhibits 14 through 16.
7

of law’ using the ‘nondeferential de novo standard.’ ” (Swift v. Superior Court (2009) 

172 Cal.App.4th 878, 882 (Swift), quoting Ziesmer v. Superior Court (2003) 

107 Cal.App.4th 360, 363; see also Jane Doe 8015 v. Superior Court (2007) 

148 Cal.App.4th 489, 493 (Jane Doe) [applying independent standard of review].) In 

Swift and Jane Doe, this court held that the de novo standard of review is appropriate 

when the correctness of the court’s ruling on the peremptory challenge turns on the 

application of law to undisputed facts. (Swift, at p. 882; Jane Doe, at p. 493.) 

The relevant facts in this matter are undisputed; therefore, we will apply a de novo 

standard of review to the court’s ruling on the peremptory challenge. With respect to the 

interpretation of a statute, that is a question of law we also review de novo. (People ex 

rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)

II. General Principles Regarding Section 170.6 Peremptory Challenges

The California Supreme Court has observed that section 170.6 “ ‘provides in 

substance that any party or attorney to a civil or criminal action may make an oral or 

written motion to disqualify the assigned judge, supported by an affidavit that the judge is 

prejudiced against such party or attorney or the interest thereof so that the affiant cannot 

or believes he [or she] cannot have an impartial trial. . . . [T]here are strict limits on the 

timing and number of such motions; but if the motion is timely and in proper form, the 

judge must recuse himself [or herself] without further proof and the case must be 

reassigned to another judge.’ ” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 

1252 (Peracchi).) 

“[T]he statute reasonably serves the Legislature’s evident purpose of ‘maintaining 

the appearance as well as the fact of impartiality in the judicial system: the business of 

the courts . . . must be conducted in such a manner as will avoid even the “suspicion of 

unfairness.” ’ ” (Peracchi, supra, 30 Cal.4th at p. 1252.) “By enacting section 170.6, the 

Legislature guaranteed litigants the right to automatically disqualify a judge based solely 
8

on a good faith belief in prejudice; proof of actual prejudice is not required.” (Stephens v. 

Superior Court (2002) 96 Cal.App.4th 54, 62, original italics.)

Subdivision (a)(1) of section 170.6 identifies the types of judicial officers and 

hearings that are subject to a peremptory challenge. It provides: “A judge, court 

commissioner, or referee of a superior court of the State of California shall not try a civil 

or criminal action . . . nor hear any matter therein that involves a contested issue of law or 

fact when it is established as provided in this section that the judge or court commissioner 

is prejudiced against a party or attorney or the interest of a party or attorney appearing in 

the action or proceeding.”

Subdivision (a)(2) of section 170.6 sets forth some of the procedural requirements 

for a motion to disqualify, including restrictions on the timing of the motion. The second 

paragraph of subdivision (a)(2), which Hanh relied on as the basis for her motion, applies 

to postappeal peremptory challenges. It 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. . . . The motion shall be made within 

60 days after the party or the party’s attorney has been notified of the assignment.” 

(Italics added.)

III. Preappeal Peremptory Challenges to Case Management Judges

Hanh argues the trial judge, who was reassigned the matter for case management

on remand, erred when she denied the peremptory challenge as untimely under Grant, 

supra, 90 Cal.App.4th 518. We agree.

Grant involved a preappeal peremptory challenge to a case management judge, 

not a postappeal challenge. The plaintiff in Grant filed a personal injury action in Santa 

Clara County Superior Court. (Grant, supra, 90 Cal.App.4th at pp. 518, 522.) Upon 

filing her complaint, the case was assigned for case management. After the complaint 
9

was filed, but before the defendant answered, the trial judge granted two ex parte 

applications made by Grant. (Id. at p. 522.) Thereafter, Grant filed a section 170.6 

peremptory challenge. At a case management conference 11 days later, the trial judge 

asked Grant to file a letter brief regarding the timeliness of her challenge. In her letter 

brief, Grant argued that her peremptory challenge had been timely filed more than five 

days before any hearing date, as required by the 10-day/5-day rule in section 170.6. She 

also argued that a peremptory challenge is timely whenever a hearing that involves a 

contested fact issue has yet to be held. (Grant, at p. 522.) The trial judge denied the 

peremptory challenge on the ground it was “ ‘untimely,’ ” and the plaintiff filed a petition 

for a writ of mandate challenging that ruling. (Id. at pp. 522-523.) This court held that 

the trial court did not err because Grant’s “peremptory challenge was filed at a time when 

a peremptory challenge is not permitted under the rules set forth in section 170.6.”

(Grant, supra, 90 Cal.App.4th at p. 523.)

In Grant, this court reviewed the various deadlines for filing a preappeal

peremptory challenge and concluded that a section 170.6 preappeal challenge is not 

permitted absent a pending trial or hearing. (Grant, supra, 90 Cal.App.4th at pp. 524-

525.) The court explained: “The general rule . . . that a challenge may be made any time 

before the commencement of a trial or hearing, merits further discussion because the rule 

is sometimes misconstrued to allow a peremptory challenge at any time during the course 

of litigation. A peremptory challenge cannot be filed or accepted at any time. To the 

contrary, the plain language of section 170.6, [former] subdivision (1) [(now subdivision 

(a)(1))] expressly limits a peremptory challenge to those times when either a trial or a 

hearing involving a contested issue of law or fact is pending on the trial court’s calendar.” 

(Grant, supra, 90 Cal.App.4th at p. 525.)4 The court concluded that “[t]he limited right 

 

4

 Section 107.6 was amended in 2003 to make technical changes and former 

subdivision (1) was renumbered subdivision (a)(1). (Stats. 2003, ch. 62, § 22.) Former 
10

of section 170.6 does not, therefore, permit a peremptory challenge to be filed or 

accepted absent a pending trial, a pending hearing involving a contested issue of fact or 

law, or an all purpose assignment. . . . A ‘hearing’ within the meaning of section 170.6 

has been defined as ‘a hearing wherein the court is called upon to rule upon some 

disputed issue of law or fact based upon legal argument or evidence or both before the 

court.’ [Citation.]” (Grant, at p. 526, original italics.) The court held that since “a case 

management conference does not involve a determination of contested issues of law or 

fact,” a preappeal peremptory challenge under section 170.6 could not be used to 

disqualify a judge from presiding at a case management conference. (Grant, at p. 528.)

The court also rejected Grant’s contention that a peremptory challenge could be filed on 

the basis that “a hearing on a contested matter may be held in the future course of 

litigation.” (Ibid.) The court acknowledged that case management judges in Santa Clara 

County hear law and motion matters, but it noted that “when a law and motion matter 

requires determination of a contested issue of law or fact, a peremptory challenge may be 

filed to disqualify the judge from hearing the motion. [Citation.]” (Id. at p. 526.)

The trial judge here cited Grant in her order denying Hanh’s peremptory 

challenge. But Grant is not controlling because Grant did not involve a postappeal

peremptory challenge or consider the language of the second paragraph in subdivision 

(a)(2) of section 170.6, discussed below, which governs postappeal challenges. 

IV. Postappeal Peremptory Challenges

A. Text and Legislative History of the Second Paragraph in Subdivision 

(a)(2) of Section 170.6

As we have noted, the second paragraph of subdivision (a)(2) of section 170.6

provides: “A motion under this paragraph may be made following reversal on appeal of a 

 

subdivision (1) of section 170.6 referenced in Grant is substantially similar to current 

subdivision (a)(1) of the statute. 
11

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. 

. . . The motion shall be made within 60 days after the party or the party’s attorney has 

been notified of the assignment.” (Italics added.) The provision authorizing a postappeal 

peremptory challenge was added to section 170.6 by amendment in 1985. (Stats. 1985, 

ch. 715, § 1; Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575 

(Stegs).)

Before its amendment in 1985, section 170.6 did not expressly provide for a 

peremptory challenge in a new trial following reversal on appeal. (State Farm Mutual 

Automobile Ins. Co. v. Superior Court (2004) 121 Cal.App.4th 490, 496 (State Farm).) 

Prior to 1985, it was common to assign a case that had been remanded by an appellate 

court for a new trial to the same judge who had heard the case previously. (Ibid.) “ ‘This 

policy was based on the premise that the trial judge who presided over the first trial was 

familiar with the issues in the case and was in a better position to expeditiously resolve 

the matter pursuant to the appellate decision.’ ” (Ibid., quoting Stegs, supra, 233 

Cal.App.3d at p. 575.)

“The concern expressed by the proponents of the 1985 amendment was that a 

judge who had been reversed might prove to be biased against the party who successfully 

appealed the judge’s erroneous ruling at the original trial. The amendment was ‘intended 

to permit a party to challenge a judge who had been assigned to conduct the “new trial”

of the case in which his or her decision was reversed on appeal. The term “new trial” is 

intended to cover situations where the case is to be re-tried and not merely remanded 

with instructions to perform some specific task (e.g., recalculate interest).’ ” (Stegs, 

supra, 233 Cal.App.3d 572, 575-576 italics added, quoting Assem. Com. on Jud. 

Analysis of Assem. Bill No. 1213 (1985–1986 Reg. Sess.) as amended May 15, 1985.)

In Peracchi, the California Supreme Court rejected the assertion that “the 

Legislature intended to protect, in all circumstances, parties who have prevailed on 
12

appeal from the presumed ire or potential bias of trial judges whose rulings have been 

reversed.” (Peracchi, supra, 30 Cal.4th at p. 1261; original italics.) The court concluded

this assertion “is incompatible with the evolution of the 1985 amendment as it passed 

through the Legislature. Initially, the language of the proposed amendment apparently 

would have applied to any hearing on remand, but that language was amended to refer 

instead to cases in which the trial judge was assigned to conduct a new trial. [Citation.]” 

(Id. at p. 1262, original italics.)

B. Rules of Statutory Construction

To resolve this matter, we must interpret section 170.6, subdivision (a)(2). “ ‘[A]s 

in any case of statutory interpretation, our task is to determine afresh the intent of the 

Legislature by construing in context the language of the statute.’ [Citation.] In 

determining such intent, we begin with the language of the statute itself. [Citation.] That 

is, we look first to the words the Legislature used, giving them their usual and ordinary 

meaning. [Citation.] ‘If there is no ambiguity in the language of the statute, “then the 

Legislature is presumed to have meant what it said, and the plain meaning of the 

language governs.” ’ [Citation.] ‘But when the statutory language is ambiguous, “the 

court may examine the context in which the language appears, adopting the construction 

that best harmonizes the statute internally and with related statutes.” ’ [Citation.] [¶] In 

construing a statute, we must also consider ‘ “the object to be achieved and the evil to be 

prevented by the legislation.” ’ [Citation.]” (People v. Superior Court (Zamudio) (2000) 

23 Cal.4th 183, 192-193 (Zamudio).) We give effect to statutes according to the usual, 

ordinary import of the language used in them. And we give significance to every word, 

phrase, sentence, and part of an act and harmonize the various parts of a statute by 

considering clauses or sections in the context of the statutory framework as a whole. 

(Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231.)
13

C. The judgment here was a “final judgment” within the meaning of section 

170.6 for the purpose of a postappeal peremptory challenge. 

Section 170.6, subdivision (a)(2) provides that a postappeal peremptory challenge 

“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.” (Italics added.) As we shall 

explain, in determining whether a party may exercise a postappeal peremptory challenge, 

courts have examined both the nature of the “decision” or “final judgment” that was 

reversed on appeal and the purpose for which the case has been remanded to the trial 

court.

We begin by examining the nature of the judgment reversed in this case. Hanh

argues that the reversal in this case will require a “new trial” within the meaning of 

section 170.6. WDC disputes whether reversal of the judgment will require a “new trial.” 

WDC argues that the judge whose decision was reversed on appeal was not a “trial 

judge” within the meaning of section 170.6, but was instead serving as a case 

management judge when she sustained the demurrer and granted the judgment of 

dismissal.

Section 170.6 does not define the term “new trial.” In examining the “new trial” 

requirement in section 170.6, appellate courts have reviewed the statutes and cases 

governing motions for a new trial. (See e.g., State Farm, supra, 121 Cal.App.4th at 

pp. 497-498; Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 559-560 (Paterno); 

Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 864-865 (Hendershot).) In 

civil cases, courts have relied on the definition in section 656, which defines “new trial” 

as the “re-examination of an issue of fact in the same court after a trial and decision by a 

jury, court, or referee.” (§ 656, italics added; State Farm, at pp. 497-498; Paterno, at 

pp. 559-560; Hendershot, at pp. 864-865.) This statutory definition on its face does not 

include a reexamination of an issue of law. As one court has observed: “A literal reading 
14

of section 656 would preclude a motion for new trial after a judgment entered on a 

motion for summary judgment, a dismissal after a demurrer, or a motion to dismiss.” 

(People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391, 397 (Maloy).) But the 

California Supreme Court rejected a literal reading of this statute almost 60 years ago in

Carney v. Simmonds (1957) 49 Cal.2d 84 (Carney) and has construed section 656 “quite 

broadly.” (Maloy, at p. 397; see also Peracchi, supra, 30 Cal.4th at p. 1259.) 

In Carney, our high court held that in addition to re-examining “an issue of fact” 

as expressly authorized by section 656, “there may be a ‘trial’ and hence a situation 

proper for a new trial motion where only issues of law are determined. . . . [¶] As a 

matter of orderly procedure there is no less reason why the trial court should have a 

second chance to reexamine its judgment where issues of fact are involved than where 

issues of law or law and fact are decided.” (Carney, at p. 90, citation omitted.) The court 

held that a motion for new trial would be proper where judgment had been entered in a 

number of situations, including: (1) judgment on the pleadings, (2) judgment for failure 

to state a cause of action, (3) judgment after a plaintiff’s opening statement or at the close 

of a plaintiff’s evidence, (4) judgment on a directed verdict, (5) judgment after a 

demurrer is sustained without leave to amend, and (6) judgment on an agreed statement 

of ultimate facts. (State Farm, supra, 121 Cal.App.4th at p. 498, citing Carney,

49 Cal.2d at pp. 88-91.) The definition in section 656, “as applied by the courts in ruling 

on motions for a new trial, is helpful in determining when a peremptory challenge is 

permitted.” (State Farm, at p. 497.)

We find Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 

762 (Stubblefield), which involved a summary judgment, instructive. The real party in 

interest in Stubblefield asserted that a section 170.6 postappeal peremptory challenge did 

not apply, arguing that “because the proceedings were terminated by summary judgment, 

rather than by judgment after trial, the remand will not result in a new trial, but in a first 

trial.” (Stubblefield, at p.765, original italics.) The appellate court disagreed. Relying on 
15

the broad definition of “new trial” in section 656, the court “recognized that a motion for 

new trial may properly be addressed to a summary judgment.” (Ibid.) The court 

observed that “[a]lthough there was no full trial of the matter . . . , a final judgment was 

entered” and the appellate court’s partial reversal of the judgment required “that the case 

be reopened, with an actual trial if necessary.” (Id. at p. 766.) The court also noted that 

its partial reversal “reflected [the] view that the trial judge erred in a crucial decision of 

law.” (Ibid.)

In Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761 

(Pfeiffer), which also involved a remand after reversal of the trial court’s order on a law 

and motion matter, the court held that a post appeal peremptory challenge may be 

asserted on remand for consideration of an attorney fee award under the anti-SLAPP 

statute. The Pfeiffer court reasoned that a trial court “must make factual findings 

regarding the merits of real parties in interest’s SLAPP motion in order to determine the 

propriety of a fee award.” (Id. at pp. 767-768.)

Other courts have held that the reversal of a trial court’s decision or judgment in 

other types of law and motion matters does not give rise to a postappeal peremptory 

challenge. In State Farm, for example, the court held that a pretrial choice-of-law motion 

was not the type of proceeding that would trigger a postappeal peremptory challenge, 

since the hearing on the motion neither adjudicated the case on the merits nor otherwise 

terminated the lawsuit. (State Farm, supra, 121 Cal.App.4th at pp. 501-503.) And in 

Burdusis v. Superior Court (2005) 133 Cal.App.4th 88, 93 (Burdusis), the court held that 

the plaintiff was not entitled to a postappeal peremptory challenge after reversal of an 

order denying his motion for class certification. The court noted that the matter was 

remanded “for the sole purpose of allowing the trial court to consider the record in light 

of two new decisions filed after the appeal.” (Burdusis, at pp. 90-91.) The court 

explained that in each of the cases in which a postappeal peremptory challenge applied, 

“the remand was from review of a decision that either addressed the merits or otherwise 
16

terminated the case. The significance of this fact lies in the definition of new trial 

(§§ 656, 657). Ordinarily, a motion for a new trial is preceded by a trial, which is, in 

most instances, an examination of law and fact resulting in a judgment.” (Burdusis, at 

p. 93, citing State Farm, supra, 121 Cal.App.4th at p. 500.) The court went on to note 

that a “pretrial motion that neither reached the merits of the controversy, nor terminated 

the action, was not a trial that would trigger section 170.6, subdivision (a)(2).” 

(Burdusis, at p. 93.)

We conclude the judgment here was a “final judgment” within the meaning of

section 170.6 for the purpose of a postappeal peremptory challenge. After the trial court 

sustained the demurrer without leave to amend, it entered a judgment of dismissal that 

terminated the case. On remand, the case will be reopened for further proceedings in the 

trial court, which may include another dispositive motion or “an actual trial if necessary.” 

(Stubblefield, supra, 81 Cal.App.4th at p. 766.) The demurrer proceeding also 

“adjudicated the case on the merits or otherwise terminated it.” (State Farm, supra, 

121 Cal.App.4th at p. 501.) We find further support for our conclusion in Carney, which 

stated that a judgment of dismissal based on a demurrer sustained without leave to amend 

is among the judgments that trigger a right to file a new trial motion. (Carney, supra, 

29 Cal.2d at pp. 88-90.)

We turn next to the question whether on remand, this matter has been reassigned 

to the same judge “to conduct a new trial” within the meaning of section 170.6.

D. This matter was remanded “to conduct a new trial” within the meaning of 

section 170.6.

The second paragraph of subdivision (a)(2) of section 170.6 provides for a 

peremptory challenge “following reversal on appeal of a trial court’s decision” or “final 

judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on 

the matter.” (§ 170.6, subd; (a)(2); italics added.) “As several Courts of Appeal have 
17

recognized: ‘The legislative history of the 1985 amendment suggests that the 

applicability of [the relevant statutory language] does not turn on . . . whether the issue(s) 

to be resolved on remand are limited, but what the court must do to resolve them. If the 

court’s function is merely a ministerial act (such as the recalculation of interest), the 1985 

amendment does not apply. If, however, the court must conduct an actual retrial, even if 

that trial involves only one issue, the court may be disqualified upon a timely affidavit 

filed pursuant to section 170.6.’ ” (State Farm, supra, 121 Cal.App.4th at pp. 496-497, 

original italics, citing Stegs, supra, 233 Cal.App.3d at p. 576; Hendershot, supra,

20 Cal.App.4th 863-864; Overton v. Superior Court (1994) 22 Cal.App.4th 112, 114-115

(Overton); Stubblefield, supra, 81 Cal.App.4th 762, 765-766; and Pfeiffer, supra,

107 Cal.App.4th 761, 767-768.)

Courts have concluded that an appellate remand required a “new trial” for the 

purpose of a postappeal peremptory challenge in civil cases where: (1) a judgment was 

reversed after a bench trial, and the case was remanded for an evidentiary hearing and the 

determination of an issue of fact (Stegs, supra, 233 Cal.App.3d at pp. 574, 576; 

Hendershot, supra, 20 Cal.App.4th at pp. 861-862, 864-865; Keith R. v. Superior Court

(2009) 174 Cal.App.4th 1047, 1057-1058 [proceedings on remand required “a new trial 

on permanent custody and move-away”]); (2) a summary judgment was reversed on 

appeal, and the case was remanded to the same judge for all purposes (Stubblefield, 

supra, 81 Cal.App.4th at pp. 764-766; Jane Doe, supra, 148 Cal.App.4th at p. 495 

[coordinated proceeding; undisputed that remand was “for trial or other adjudication of 

legal or factual issues and not for a ministerial act”]); and (3) a pretrial dismissal was 

reversed on appeal and remanded with directions to make factual findings on the merits 

of the defendants’ special motion to strike (§ 425.16) to determine whether to award

attorneys’ fees (Pfeiffer, supra, 107 Cal.App.4th at pp. 763-764, 768).

In criminal cases, courts have concluded that a postappeal peremptory challenge is 

available where: (1) an order dismissing a criminal complaint on statute of limitations 
18

grounds is reversed on appeal and the remand requires that “the case be reopened with, 

presumably, a trial on the merits” (Maloy, supra, 91 Cal.App.4th at pp. 396-397); and 

(2) the appellate court instructed the trial court to declare a mistrial and conduct a new 

trial (Overton, supra, 22 Cal.App.4th at pp. 114-116). “In each of those cases, the trial 

court had adjudicated the case on the merits or otherwise terminated it, and the Court of 

Appeal reversed and remanded for additional proceedings.” (State Farm, supra, 121 

Cal.App.4th at pp. 500-501.) 

Other cases have concluded that a postappeal peremptory challenge was properly 

denied because the remand did not require a new trial. The State Farm court concluded 

that the defendant was not entitled to a peremptory challenge after the trial court’s pretrial 

ruling on a choice of law question was reversed in a writ proceeding. The court 

explained that “given the limited nature of the prior writ proceeding—to determine which 

state’s law is applicable—a peremptory challenge does not lie because the trial judge did 

not ‘try’ the case, nor will the prior writ proceeding result in a ‘new trial.’ Rather, the 

trial judge will simply continue on with the case, applying Illinois law.” (State Farm, 

supra, 121 Cal.App.4th at p. 493.) The court reasoned that unlike Stubblefield, which 

involved a summary judgment, there was no final judgment, the ruling on the choice of 

law motion did not terminate the action, and the granting of the writ petition did not 

result in a reopening of the case. (State Farm, at pp. 501-502.)

In Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526, the court held there is 

no right to a postappeal peremptory challenge when the appellate court directs the trial 

court on remand to prepare a statement of decision “to complete the original trial.” (Id. at 

pp. 1529-1530.) Similarly, in Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 

424, the court held that the plaintiff did not have a right to a postappeal peremptory 

challenge where the appellate court reversed a summary judgment and remanded the case 

for the trial court to prepare the statement of grounds and reasons required by section 

437c, subdivision (g). The court explained that unlike the appellate court in Stubblefield, 
19

it had not reached the merits of the trial court’s decision or determined that the trial court 

erred in a “ ‘crucial decision of law.’ ” (Geddes, at p. 424.) Instead, it held that the trial 

judge failed to state the legal and factual basis for its decision to allow meaningful 

review. The court concluded: “Section 170.6 applies only where the matter is to be 

retried, not where it is remanded with instructions to complete a judicial task not 

performed in the prior proceeding.” (Geddes, at pp. 423-424.) The court also observed 

that preparing the statement of grounds was “a task that only the trial judge who had 

decided the motion was capable of performing.” (Id. at p. 424.)

Informed by these legal authorities, we conclude that remand after reversal of a 

judgment of dismissal based on a demurrer is a “new trial” for purposes of section 170.6. 

The term “new trial” in the second paragraph of subdivision (a)(2) of section 170.6 “ ‘ “is 

intended to cover situations where the case is to be re-tried . . . .” ’ ” (Peracchi, supra, 

30 Cal.4th at p. 1258, original italics.) “Thus, application of section 170.6(a)(2) does not 

rest solely on whether the trial judge is to perform a ministerial task after reversal. The 

statute requires—as variously phrased by the courts—an ‘actual retrial,’ a ‘new trial,’ or 

that a case be ‘retried’ or ‘reopened.’ ” (State Farm, supra, 121 Cal.App.4th at p. 503.)

In considering the “new trial” requirement, recent decisions have relied upon the 

language of section 656, which, as we have explained, requires a “re-examination” of an 

issue of law or fact. (§ 656; Paterno, supra, 123 Cal.App.4th at p. 560; Geddes, supra, 

126 Cal.App.4th at pp. 423-424; C.C. v. Superior Court (2008) 166 Cal.App.4th 1019, 

1022.) In Paterno, the court stated that “section 656 leaves no doubt that a new trial must 

consist of a ‘reexamination.’ In order to conduct a reexamination, a court must revisit 

some factual or legal issue that was in controversy in the prior proceeding.” (Paterno, at 

p. 560.) The Paterno court, for example, held that the trial court properly denied the 

postappeal peremptory challenge in that case, reasoning that since the remand did not 

require the trial court to reexamine liability issues that were resolved by the decision on 

appeal, and the trial court’s only task was to conduct a first trial on the amount of 
20

damages the petitioners had suffered, the petitioner did not have a right to a peremptory 

challenge. (Paterno, supra, 123 Cal.App.4th at pp. 560-561.)

Hanh asserts “there is no doubt that the post-appeal proceedings [in this case] . . . 

will constitute a ‘new trial’ within the meaning of the statute.” She argues the reversal of 

the judgment of dismissal “has resulted in the reopening of the underlying action and will 

require ‘a first trial on a factual or legal issue,’ including [WDC’s] statute of limitations 

defense, i.e., a ‘new trial’ within the meaning of the post-appeal peremptory challenge 

provision.” We agree that our reversal of the judgment of dismissal would require a 

reassigned judge “to conduct a new trial” that triggers the right to a postappeal 

peremptory challenge. Upon remand, this case was reopened and all of the issues raised 

in the pleadings were placed back before the court, including WDC’s statute of 

limitations defense, which was at issue in the demurrer proceeding. As we have noted, 

this case may be resolved by a dispositive motion (i.e., a summary judgment motion) or 

an actual trial that may ask the court to reexamine the statute of limitations defense. We 

therefore agree this case has been remanded for a new trial within the meaning of section 

170.6, subdivision (a)(2).

E. Timing of Hanh’s Postappeal Peremptory Challenge

A postappeal peremptory challenge must be made “within 60 days after the party 

or the party’s attorney has been notified of the assignment” to the same judge whose 

decision was reversed on appeal “to conduct a new trial.” Hanh argues that her 

peremptory challenge was timely filed within the 60-day time limit. She asserts she was 

notified the case had been reassigned to the same judge by the case status review hearing 

notice served on December 19, 2014. She contends that since she filed her peremptory 

challenge 49 days later, on February 6, 2015, it was timely filed within the 60-day limit.5

 

5

 Hanh adds that “[i]ndeed, the peremptory challenge was filed less than 60 days 

after this court issued its . . . remittitur on December 18, 2014.” The court in 
21

The parties disagree as to what triggered the 60-day time limit for a postappeal 

peremptory challenge and, more specifically, whether reassignment of this case to the 

trial judge for case management triggered the 60-day time limit in this case. Hanh argues 

we should look at the nature and purpose of the remand. She contends that since this 

court’s remand “ ‘requires that the case be reopened, with an actual trial if necessary,’ ” 

the 60-day time period was triggered by notice that the case had been reassigned to the 

same judge whose decision was reversed on appeal for any purpose. WDC argues that 

we should look to the task at hand, the type of hearing for which the case was reassigned 

to the trial judge, as opposed to the nature of the remand. WDC argues that the trial 

judge here correctly denied the postappeal peremptory challenge because she “merely 

resumed her role as case management judge” and the case had not been assigned to her to 

conduct a new trial, no trial date had been set, and there was no indication she would be 

assigned to try the case.

As we have noted, the Legislature’s discussion of the phrase “new trial” indicates 

that this term was intended to refer to the nature and purpose of the remand, rather than 

the nature of any particular hearing the original trial judge is assigned to conduct on 

remand. Thus, in cases in which an appellate court reverses a decision or final judgment 

of a trial court and remands the matter “to conduct a new trial” within the meaning of 

section 170.6, the time for filing a postappeal peremptory challenge is “within 60 days 

after the party or the party’s attorney has been notified of the assignment” back to the 

judge whose decision was reversed on appeal. This requires the parties to determine 

simply whether the case has been remanded for a new trial within the meaning of 

 

Ghaffarpour v. Superior Court (2012) 202 Cal.App.4th 1463, 1471 stated that the time to 

file a postappeal peremptory challenge “begins when the party who filed the appeal has 

been notified of the assignment, and does not begin from the date of the issuance of the 

remittitur by the Court of Appeal.” We agree with Ghaffarpour and conclude it is not

relevant how many days had passed after issuance of the remittitur before Hanh filed her 

challenge.
22

section 170.6. They need not also determine whether the specific proceeding currently 

on calendar (i.e., a case management conference) is itself a new trial within the meaning 

of the statute.

We acknowledge this rule is different from the rule set forth in Grant. But, as we 

have explained, Grant was a preappeal peremptory challenge. As such, it was subject to 

the statutory requirement that the proceeding at issue be a hearing or trial “that involves a 

contested issue of law or fact” (§ 170.6, subd. (a)(1)). This case involves a postappeal

peremptory challenge, which is subject only to the statutory requirement that the case be 

remanded for a “new trial,” regardless of the nature of the next proceeding on calendar. 

As observed in Maloy, the first and second paragraphs of section 170.6, 

subdivision (a)(2) serve different purposes. The first paragraph, which includes time 

limits for preappeal peremptory challenges, was “designed to provide a litigant with a 

peremptory challenge while preventing judge shopping.” (Maloy, supra, 

91 Cal.App.4th at p. 399, fn. 2.) The second paragraph “addresses potential judicial bias 

after reversal on appeal.” (Ibid.)

Hanh was notified on December 19, 2014, that this case was reassigned to the 

same judge whose decision had been reversed on appeal when she received the notice of 

the case status review hearing. She made her postappeal peremptory challenge 49 days 

later, on February 6, 2015. Thus, her challenge was timely.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its 

order denying the peremptory challenge and to enter a new and different order granting 

the challenge. The temporary stay order issued on July 2, 2015, shall remain in effect 

until this opinion is final. The parties shall bear their own costs in this original 

proceeding.
_______________________________

 Márquez, J.

I CONCUR:

_____________________________________________

 Bamattre-Manoukian, Acting P. J.
Mihara, J., Concurring in the Judgment.

The only significant issue in this case is whether, after an appellate reversal, the 

successful appellant may make a peremptory challenge under the second paragraph of 

Code of Civil Procedure section 170.6, subdivision (a)(2)1 when the original trial judge 

is assigned to conduct a case management conference on the case, or must wait until the 

original trial judge is assigned to conduct a trial before being permitted to make such a 

challenge. I agree with my colleagues that the statute does not require the successful 

appellant to wait to make a peremptory challenge once the original trial judge has been 

reassigned to the case. 

Post-appeal peremptory challenges are governed by the second paragraph of 

section 170.6, subdivision (a)(2). Section 170.6, subdivision (a) provides: “(1) A judge, 

court commissioner, or referee of a superior court of the State of California shall not try a 

civil or criminal action or special proceeding of any kind or character nor hear any matter 

therein that involves a contested issue of law or fact when it is established as provided in 

this section that the judge or court commissioner is prejudiced against a party or attorney 

or the interest of a party or attorney appearing in the action or proceeding. [¶] (2) A 

party to, or an attorney appearing in, an action or proceeding may establish this prejudice 

by an oral or written motion without prior notice supported by affidavit or declaration 

under penalty of perjury, or an oral statement under oath, that the judge, court 

commissioner, or referee before whom the action or proceeding is pending, or to whom it 

is assigned, is prejudiced against a party or attorney, or the interest of the party or 

attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair 

and impartial trial or hearing before the judge, court commissioner, or referee. [Timing 

 

1

Subsequent statutory references are to the Code of Civil Procedure unless 

otherwise specified.
2

provisions] [¶] 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.” (§ 170.6, subd. (a).) 

The resolution of the question before us requires us to construe the second 

paragraph of section 170.6, subdivision (a)(2). “We apply well-settled principles of 

statutory construction. Our task is to discern the Legislature’s intent. The statutory 

language itself is the most reliable indicator, so we start with the statute’s words, 

assigning them their usual and ordinary meanings, and construing them in context. If the 

words themselves are not ambiguous, we presume the Legislature meant what it said, and 

the statute’s plain meaning governs. On the other hand, if the language allows more than 

one reasonable construction, we may look to such aids as the legislative history of the 

measure and maxims of statutory construction. In cases of uncertain meaning, we may 

also consider the consequences of a particular interpretation, including its impact on 

public policy.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) 

In my view, the statutory language permits more than one reasonable construction, 

but the legislative history reflects that the Legislature intended that an assignment back to 

the original trial judge would fall within the statutory language so long as the appellate 

reversal resulted in a remand for a new trial. Thus, I construe the statute’s use of the 

words “new trial” to refer to the nature of the remand rather than to the nature of any 

particular hearing that the original trial judge is assigned to conduct after remand.
3

The second paragraph of section 170.6, subdivision (a)(2) was added to the statute 

in 1985 by Assembly Bill No. 1213. (Stats. 1985, ch. 715, § 1.) The original version of 

Assembly Bill No. 1213 would have read: “Following reversal on appeal of a trial 

court’s decision, a motion under this paragraph may be made, upon the assignment of the 

trial judge in the prior proceedings to rehear the matter, at any time promptly after the 

party or the party’s attorney has been notified of the assignment.” (Assem. Bill No. 1213 

(1985–1986 Reg. Sess.) as introduced Mar. 4, 1985.) The bill was subsequently amended 

to replace “to rehear the matter” with “for a new trial” and to replace “at any time 

promptly” with “within 60 days.” (Assem. Bill No. 1213 (1985–1986 Reg. Sess.) as

amended May 15, 1985.) The final amendment of the proposed bill changed the 

language to what was ultimately enacted. “A motion under this paragraph may be made 

following reversal on appeal of a trial court’s decision if the trial judge in the prior 

proceeding is assigned to conduct a new trial on the matter. The motion shall be made 

within 60 days after the party or the party’s attorney has been notified of the assignment.” 

(Assem. Bill No. 1213 (1985–1986 Reg. Sess.) as amended May 24, 1985.) Additional 

language has been added over the years, but the “new trial” and “60 days” provisions 

have remained unaltered.

The legislative history of the enactment of this language explicitly addresses the 

meaning of “new trial” in the second paragraph of section 170.6, subdivision (a)(2). 

“The term ‘new trial’ is intended to cover situations where the case is to be re-tried and 

not merely remanded with instructions to perform some specific task (e.g., recalculate 

interest).” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1213 (1985–1986 Reg. 

Sess.) as amended May 24, 1985.) The Legislature’s delineation of the meaning of “new 

trial” reflects that this term was intended to refer to the nature of the remand, not to 

identify the nature of any particular hearing that may be scheduled after remand. This 

construction of the “new trial” reference is buttressed by the Legislature’s selection of a 
4

60-day period for the challenge. The Legislature could not possibly have intended that, 

where the case is assigned back to the original trial judge on remand, a challenge cannot 

be made until a new trial has been scheduled. Such an interpretation would disrupt the 

orderly processes of trial courts, a result that the Legislature could not rationally have 

intended. 

All of the relevant case authority is in accord with this construction of the statutory 

language. In Peracchi v. Superior Court (2003) 30 Cal.4th 1245 (Peracchi), the 

California Supreme Court construed “new trial” as it applied in criminal proceedings and 

determined that a remand for resentencing did not satisfy the “new trial” condition under 

the second paragraph of section 170.6, subdivision (a)(2) because resentencing did not 

fall within the Penal Code’s “new trial” definition. (Peracchi, at pp. 1253-1256.) The 

court expressly distinguished civil cases. “[W]e do not believe that the Legislature 

contemplated that what constitutes a new trial in a criminal case for the purposes of 

section 170.6 would be defined by the law in civil cases—especially when a specific 

Penal Code section defines the term ‘new trial.’ We do not perceive any anomaly in the 

Legislature’s intent that the term ‘new trial’ be applied for disqualification purposes as 

that term is defined either by the Code of Civil Procedure or by the Penal Code, 

depending on the nature of the case . . . .” (Peracchi, at p. 1261.) 

Both before and after Peracchi, the “new trial” language in the second paragraph 

of section 170.6, subdivision (a)(2) has been construed in civil cases to refer to the 

actions that the trial court is required to undertake as a result of an appellate remand. 

(Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 864 [whether the “new trial” 

language applies depends on “what the [trial] court must do to resolve” the issues 

remanded by the appellate court]; Stegs Investments v. Superior Court (1991) 233 

Cal.App.3d 572, 576 [same]; Pfeiffer Venice Properties v. Superior Court (2003) 107 
5

Cal.App.4th 761, 767 [challenge permitted “whenever a decision is sent back to the trial 

judge for rulings on the merits of the litigation.”].) 

In Paterno v. Superior Court (2004) 123 Cal.App.4th 548 (Paterno), the Court of 

Appeal, following the lead of Peracchi, referred to the definition of “new trial” in section 

656, which applies in civil proceedings, in determining whether the remand had been for 

a new trial. (Paterno, at p. 559.) Section 656 provides: “A new trial is a re-examination 

of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” 

(§ 656.) The Court of Appeal in Paterno held that the remand in that case, which was for 

a determination of damages, an issue that had not previously been determined, did not 

qualify as a “ ‘re-examination’ ” so it was not a remand for a “new trial” within the 

meaning of section 170.6. (Paterno, at pp. 560-561, italics & boldface added.) 

This court considered the meaning of the second paragraph of section 170.6, 

subdivision (a)(2) in Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489 (Jane 

Doe)). A summary judgment had been reversed because there were triable issues of 

material fact. (Jane Doe, at p. 492.) On remand, the successful appellants challenged the 

original trial judge under section 170.6, subdivision (a)(2). (Jane Doe, at p. 492.) The 

trial court struck the challenge on the ground that the second paragraph of section 170.6, 

subdivision (a)(2) did not apply in a coordinated proceeding because a challenge to a 

coordination judge must be made within 20 days after the judge’s original assignment. 

(Jane Doe, at p. 495.) On appeal, this court agreed with other appellate courts that the 

“new trial” language in the statute refers to the nature of the remand. (Id. at pp. 494-

495.) This court disagreed with the trial court’s conclusion that the 20-day limit applied 

and held that section 170.6, subdivision (a)(2) permitted a challenge because the remand 

was for a new trial. (Jane Doe, at pp. 496-498.)

The remand in this case was indisputably for a new trial within the meaning of the 

second paragraph of section 170.6, subdivision (a)(2). Only two conditions must be 
6

satisfied in order to bring a challenge under the second paragraph of section 170.6, 

subdivision (a)(2). First, the remand must be for a “new trial.” Second, the challenge 

must be made within 60 days after the original trial judge is assigned to the case. Both of 

these conditions were satisfied in this case. The remand was plainly for a new trial since 

it required a reexamination of the factual and legal issues in the case. And the challenge 

clearly was filed within the 60-day period. The nature of the hearing to which a trial 

judge is assigned is relevant in determining whether a pre-appeal challenge may be made 

under the first paragraph of section 170.6, subdivision (a)(2) because the statutory 

language so states. In contrast, the statutory language pertaining to post-appeal 

challenges, which is contained in a separate paragraph of section 170.6, subdivision 

(a)(2) and provides the basis for a challenge “under this paragraph,” does not condition 

such a challenge on the nature of any particular hearing to which the original trial judge is 

assigned after a reversal. 

I therefore agree with my colleagues that the petitioners are entitled to a writ of 

mandate.

______________________________

Mihara, J.