Opinion
C087374
10-31-2018
DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Petitioner, v. THE SUPERIOR COURT OF PLUMAS COUNTY, Respondent; EUNICE E. HOWELL et al., Real Parties in Interest.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV0900205)
The respondent superior court struck a peremptory challenge by petitioner Department of Forestry and Fire Protection (Cal Fire) to assignment of Judge Leslie C. Nichols on remand following reversal on appeal by this court. Because it appears respondent court erred in striking the peremptory challenge based on its findings (1) the challenge was barred by law of the case, (2) there was no "new trial" to permit a peremptory challenge on remand, and (3) petitioner was judicially estopped from arguing that the issues on remand had been previously litigated, we shall issue a writ of mandate compelling the superior court to grant the peremptory challenge.
EARLIER PROCEEDINGS
As we noted in our opinion in Department of Forestry and Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 162 (Howell), the underlying case relates to a wildfire, dubbed the "Moonlight Fire," that started in Plumas County in September 2007, burning approximately 65,000 acres. At issue in the underlying case were monetary damages, including a claim by petitioner Cal Fire to recover its fire suppression and investigation costs. (Id. at p. 163.) On appeal, this court addressed a number of claims in two consolidated cases: one case (case No. C074879) challenged a judgment of dismissal entered by the trial court based on its award of judgment on the pleadings and pursuant to Cottle v. Superior Court (1992) 3 Cal.App.4th 1367; the other case (case No. C076008) challenged postjudgment awards of discovery sanctions, and prevailing party attorney fees, expenses and costs. (Howell, at pp. 163-164.) Ultimately, this court reversed in part and affirmed in part the trial court's judgment and postjudgment rulings. (Id. at p. 164.) With respect to the postjudgment orders, based on certain errors in the calculation of postjudgment awards, we remanded the matter to the trial court for further proceedings relative to its orders awarding costs and attorney fees to prevailing parties and imposing monetary discovery sanctions against Cal Fire. (Id. at pp. 164, 183, 203-204.)
On March 29, 2018, following remand from this court of Plumas County case No. CV0900205 and consolidated actions, Cal Fire filed a peremptory challenge pursuant to Code of Civil Procedure, section 170.6 to disqualify Judge Leslie Nichols, who had presided over the trial court proceedings challenged in the prior appeal, based on the grounds Cal Fire believed the judge to be prejudiced against Cal Fire or its counsel, and that the judge cannot provide Cal Fire a fair and impartial trial or hearing. The real parties in interest opposed this peremptory challenge, arguing it was precluded by law of the case and because no issues previously litigated were being reexamined or any new trial being provided so as to permit a peremptory challenge. The trial court, by order dated May 31, 2018, ordered stricken Cal Fire's peremptory challenge.
Cal Fire filed a petition for writ of mandate in this court, seeking an order directing the respondent court to vacate its order striking Cal Fire's peremptory challenge, and directing the respondent court to enter a new order granting the peremptory challenge. Real parties in interest filed a joint preliminary opposition to the petition for writ of mandate.
On July 9, 2018, we stayed all proceedings in Plumas County case No. CV0900205 and consolidated actions. We also notified the parties we were considering issuing a peremptory writ in the first instance, and invited opposition to the petition, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171. Our order further invited the respondent court to reconsider its May 31, 2018 order, pursuant to Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250. Petitioner subsequently informed this court of the respondent court's July 26, 2018, order declining to reverse or modify its prior order, thereby necessitating this opinion.
Having received and considered the joint opposition of real parties in interest, we shall issue a peremptory writ.
DISCUSSION
Cal Fire contends the respondent court erred in striking its peremptory challenge.
"A judge . . . 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." (Code Civ. Proc., § 170.6, subd. (a)(1); statutory section references that follow are to this Code.) A party "may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury . . ., that the judge . . . 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. . . ." (§ 170.6, subd. (a)(2).) A peremptory challenge pursuant to these provisions, "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." (§170.6, subd. (a)(2).)
Here, following partial reversal and remand of the respondent court's judgment, and reversal and remand of its postjudgment orders awarding costs, attorney fees, and expenses to real parties in interest and imposing monetary sanctions on petitioner, petitioner timely moved for disqualification of the assigned judge pursuant to section 170.6. Respondent court entered an order striking the motion and adopting the arguments of real parties in interest (1) that the motion was barred by law of the case based on this court's rejection on appeal of a request by other parties to assign a different judge on remand made pursuant to section 170.1; (2) that there was no new trial to be had because respondent court on remand was now merely being asked to apportion costs and fees among petitioner and other plaintiffs, and to limit monetary sanctions to those fees attributable to petitioner's discovery abuses; and (3) that petitioner was judicially estopped from asserting that there was to be a reexamination of those issues on remand after arguing on appeal that the respondent court had failed to engage in that analysis initially.
We first address the standard of review to be applied by this court. "The Courts of Appeal have reached varying conclusions regarding the appropriate standard of review of the denial of a peremptory challenge." (Swift v. Superior Court (2009) 172 Cal.App.4th 878, 882.) Some courts apply the deferential abuse of discretion standard, with others applying a nondeferential de novo standard of review. (Ibid.; see Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315 [applying abuse of discretion standard where deciding whether challenge filed untimely]; see also Jonathon M. v. Superior Court (2006) 141 Cal.App.4th 1093, 1098 [same]; but see Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363 [applying a de novo standard because the trial court has no discretion]; Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489, 493 [applying an independent standard of review].) Here, though the trial court and the parties apparently disagree about the matters to be litigated on remand based on their respective interpretations of the dispositive instructions in Howell, the facts of what was at issue in that appeal are not in dispute, and neither are the facts set forth in the declaration supporting the section 170.6 motion. Thus, we review the questions of law presented in this petition de novo. (See Jones v, Superior Court (2016) 246 Cal.App.4th 390, 397.)
But, with respect to the trial court's factual findings underpinning its conclusion that petitioner was judicially estopped from presenting an argument that there was to be a reexamination of issues, we review those findings for substantial evidence. Regardless of the standard applied, however, we find error in the denial of the peremptory challenge.
The doctrine of law of the case, which applies to prevent a contrary ruling on a point of law previously ruled upon by a reviewing court, is invoked only "where the point of law involved was necessary to the prior decision and was ' "actually presented and determined by the court." ' " (People v. Gray (2005) 37 Cal.4th 168, 197.)
Here, in the previous appeal, this court rejected a claim presented under section 170.1, which required this court to determine whether "[f]or any reason," "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (§ 170.1, subd. (a)(6)(A)(iii); Howell, supra, 18 Cal.App.5th at p. 203.) This mandated this court to find an objective showing of bias from the record, which it did not find. In contrast, petitioner's motion pursuant to section 170.6, requires a subjective showing of a mere "good faith belief in prejudice." (People v. Hall (1978) 86 Cal.App.3d 753, 757, fn. 4; Maas v. Superior Court (2016) 1 Cal.5th 962, 972-973.) Because the present motion presents an issue not previously decided in our opinion, law of the case does not preclude disqualification pursuant to section 170.6.
Neither do we find persuasive the reliance by real parties in interest on Johnson v. Superior Court (1958) 50 Cal.2d 693, 697, for the proposition that after failing to prevail on a section 170.1 motion to cause a judge to be recused, on remand, a party is barred from pursuing a recusal by employing section 170.6.
Section 170.6, subdivision (a)(2), permits a peremptory disqualification motion following reversal "if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter." Here, respondent court found there was no new trial to be conducted because it had not previously apportioned costs and fees among the various plaintiffs and because it had not previously limited the monetary discovery sanctions to fees attributable to petitioner's discovery abuses.
Section 170.6, however, applies in remand proceedings where the trial court is called upon "to reexamine issues litigated in the prior proceeding." (Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 561 (Paterno).) This is true regardless whether the issues to be reexamined are factual or legal. (Id. at p. 560 ["In order to conduct a reexamination, a court must revisit some factual or legal issue that was in controversy in the prior proceeding"].) For example, First Federal Bank of California v. Superior Court (2006) 143 Cal.App.4th 310, 314-315, concluded that when the trial court's decision that the petitioner was not entitled to attorney fees was reversed and remanded for a hearing on the amount of fees to be awarded, section 170.6 would be implicated because the remand 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."
Here, respondent court previously awarded costs, attorney fees and expenses, and imposed monetary discovery sanctions, though in an amount and according to a methodology this court found erroneous. (See Howell, supra, 18 Cal.App.5th at pp. 166-167, 183-184, 193-195, 198-204.) A remand hearing requiring respondent court to consider evidence and to again make factual and legal determinations necessary to award and impose costs, fees, and sanctions necessarily requires a reexamination of issues previously litigated -- i.e., a new trial for purposes of section 170.6. (Cf. Paterno, 123 Cal.App.4th at p. 560 [where liability decided in prior proceedings and on appeal, remand to consider damages did not involve reexamination of previously litigated issues].) As real parties in interest concede, "post-judgment briefing . . . relating to [their] motions for fees, expenses, and/or sanctions was expansive, spanning four months and hundreds - if not thousands - of pages." Indeed, the real parties in interest concede the trial court considered and awarded attorney's fees, costs, and sanctions, and that on appeal this court took issue with the manner in which the trial court calculated those costs, namely that it had failed to engage in a causation analysis to determine which fees, costs, or expenses were a result of discovery abuses.
Moreover, as described in Howell, supra, 18 Cal.App.5th at pages 193-195, Cal Fire challenged in the prior appeal the reasonableness of the award of monetary sanctions. We concluded the award was not reasonable, and so reversed and remanded for the trial court "to determine the recoverable expenses [as monetary discovery sanctions] pursuant to Code of Civil Procedure section 2023.030," i.e., reasonable expenses caused by Cal Fire's wrongdoing, and also to determine again the costs award because it had not apportioned costs in its prior award. Thus, contrary to the argument offered by real parties in interest, the directions to the trial court on remand from this court with respect to postjudgment awards are not strictly limited to considering causation but are to recalculate the monetary discovery sanctions and costs award. (Howell, at p. 204.) Accordingly, there is to be a new trial involving a reexamination of issues previously litigated.
Respondent court also adopted the argument of the real parties in interest that petitioner should be judicially estopped from arguing in the remand proceeding that there would be a reexamination of issues previously litigated. " ' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position." ' " (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) The discretionary application of the doctrine is limited to situations in which a party takes a position that is "totally inconsistent" with a position it successfully asserted previously. (Id. at pp. 986-987.)
In denying the peremptory challenge, respondent court concluded that in the prior appeal petitioner had argued that, in imposing monetary discovery sanctions, the trial court failed to examine which of the attorney fees incurred by real parties in interest were a consequence of petitioner's discovery abuses, and that this argument was directly in conflict with petitioner's present argument that respondent court is being asked to reexamine the issue of what amount of monetary sanctions should be awarded or imposed. Essentially, respondent court found that petitioner is judicially estopped from arguing now that there is to be a reexamination of the causation issue that petitioner previously argued the trial court failed to examine. This conclusion, however, is erroneously premised on the narrow framing of the issue to be litigated on remand as being merely the causative connection between discovery abuses and attorney fees, as opposed to a broader reexamination of the award of monetary discovery sanctions described in the disposition in Howell. The record before us does not support such a conclusion.
Though we specifically identified in Howell that the trial court abused its discretion by failing to consider causation, we did not limit its analysis on remand to that finite consideration, but rather directed it "to determine the recoverable expenses pursuant to Code of Civil Procedure section 2023.030," (Howell, supra, 18 Cal.App.5th at p. 204) which provides that "[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct." (§ 2023.030, emphasis added.) Thus, while our remand certainly requires the trial court to consider the causative connection between Cal Fire's discovery abuses and the attorney fees claimed by real parties in interest, we did not limit its discretion on remand to considering that unique factor. Rather, we have directed the trial court to examine again what reasonable expenses real parties in interest may recover from Cal Fire based on the trial court's finding that Cal Fire misused the discovery process. Thus, petitioner's argument on appeal -- that the trial court erred in imposing monetary sanctions because it failed to examine reasonableness of fees by failing to consider the causative connection between discovery abuses and concomitant monetary sanctions -- is not "totally inconsistent" with petitioner's position on remand that the trial court must reexamine the award of discovery sanctions to determine which reasonable expenses may be recovered.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent superior court to vacate its May 31, 2018, order striking the peremptory challenge filed by the petitioner, and to enter a new order granting the peremptory challenge. Upon finality of this opinion, the stay issued by this court on July 9, 2018, shall be vacated. Costs are awarded to petitioner. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
HULL, Acting P.J. We concur: BUTZ, J. MAURO, J.