Appellate Insights

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).