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Name: C.C. v. Superior Court
Case #: G040580
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/11/2008

Civil Procedure Code section 170.6, subdivision (a)(2), which allows a challenge to a judge following reversal on appeal, applies only where the remand requires reexamination of a factual or legal issue, and not where the remand is for the performance of a ministerial act. After the Court of Appeal reversed an order in a juvenile dependency case and “directed the juvenile court to enter a new order denying reunification services … and to set a permanent plan selection hearing,” the attorney of one of the children filed a peremptory challenge to the judge. The judge recused himself in both children’s cases to keep their cases together. In this appeal, the mother argued recusal was not permitted by the statute because it did not apply under the scope of the remand. Section 170.6, subdivision (a)(2) allows a challenge to 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 matter is assigned to conduct a new trial on the matter….” As such, the statute applies only when there will be a reexamination of a factual or legal issue in controversy, not when the judge is directed to perform a ministerial act. The entrance of a new order and setting of a hearing falls within the latter category, so the statute was inapplicable.