Monday, February 29, 2016

Appellate catnip

"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).)" So what about a party who wins a reversal of a dismissal arising from a demurrer sustained without leave to amend? Entitled to a postappeal peremptory or not? The 6th DCA says yes here (with a concurrence):
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.

Image result for pushmepullyouAnd here's an interesting appellate merry-go-round:
Respondent: Please dismiss b/c we settled.
Appellant: No, we didn't settle.
Court of Appeal: We'll remand for the trial court to sort this out at an evidentiary hearing.
Trial Court: No settlement took place.
Court of Appeal: Actually, there was a settlement; appeal dismissed. [see 2/1's decision here]

Finally, things might've been rosier for appellant if she'd had hired counsel.Take a look here for some great lines by Beds, including: "Appellant] has violated nearly every rule of the California Rules of Court regarding briefs and the record on appeal."