Appellate Success In California

Jan 12, 2017 Alana H. Rotter
Another Bite At The 170.6 Apple?

Most California litigators know Code of Civil Procedure section 170.6 gives each side one opportunity at the outset of a case to have the case reassigned to a different judge.  But fewer know that section 170.6 also permits a peremptory challenge after some appellate reversals and remands.  Which reversals trigger a new 170.6 opportunity?

  • Any side that did not exercise a section 170.6 challenge at the outset of a case may make a section 170.6 challenge following appellate reversal of an order or a final judgment, if the same trial judge who handled the prior proceeding is assigned to conduct a new trial.
  • An appellant that exercised a section 170.6 challenge at the outset of the case, and later successfully appeals to have the trial court’s final judgment reversed for a new trial, gets a new (second) section 170.6 challenge on remand.
  • But, an appellant that exercised a section 170.6 challenge at the outset of the case does not get a new section 170.6 challenge on remand if the Court of Appeal reversed an order other than a final judgment.

►  The practical message: Section 170.6 may permit you to get before a different trial judge on remand. If re-assignment would benefit your cause, promptly consider (a) whether your side used a section 170.6 challenge earlier in the case, and, if so, (b) whether the reversed ruling qualifies as a final judgment (thereby opening the door to a second 170.6 challenge).