No Extra § 170.6 Strike After Interlocutory Reversals

McNair v. Superior Court, No. B275282 (D2d3 Dec. 23, 2016)

This case concerns the ability of a party who has already filed on peremptory strike under Code of Civil Procedure § 170.6 to file a new one after a successful interlocutory anti-SLAPP appeal. In a pleasingly brief and cogent opinion by Justice Aldrich, the Court of Appeal says no. 

Shortly after service, Defendant in this defamation case struck the assigned judge under § 170.6. It then filed an anti-SLAPP motion but lost because the trial court found that Plaintiff showed a prima facie case for success. On a prior appeal, the Court of Appeal partially reversed, holding that Plaintiff had not, in fact, showed a probability of prevailing on two of the four affected causes of action. On remand, Defendant filed another § 170.6, striking the judge who had denied the motion in full. The trial court accepted the strike, but Plaintiff took a writ.

Generally, a strike needs to be made shortly following assignment and each side of a case only gets one strike. But there’s an exception in an unnumbered paragraph following § 170.6(a)(2), which says the following:

A motion under this paragraph 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. Notwithstanding paragraph (4) [the limit to one strike per side], the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.

The court here reads the language as creating two different exceptions. The first sentence is an exception to the requirement to make a strike shortly after assignment. When the same judge is assigned on remand, it applies after a reversal of both a “decision” or a “final judgment.” But the second sentence applies to the one-strike-per-side rule—hence the reference to “paragraph (4).” And it applies only after “the reversal of a final judgment.”

Relying on interpretive cannons to resolve an apparent issue of first impression, the court finds that by including “decisions” in the first sentence, but omitting it from the second, the Legislature intended that the one strike-per-side rule will continue to apply following an appellate reversal of anything short of a final judgment. And since an order denying an anti-SLAPP motion is not a final judgment, Defendant shouldn’t have been permitted to make a second strike in this case.

Writ granted.