People v. Superior Court

The issue presented by this appeal is whether a litigant can peremptorily challenge a judge pursuant to Code of Civil Procedure section 170.6, subdivision (2) 1 after the judge’s dismissal of the action based on the allegations in the complaint is reversed on appeal. In this action, the trial court granted defendant’s motion to dismiss the complaint concluding the action was barred by the statute of limitations. After this court reversed the order, the People challenged the judge who had erroneously dismissed the action. The trial court reasoned the People were not entitled to a peremptory challenge because the ruling which was reversed occurred prior to trial and, therefore, there would not be a new trial after remand as required by section 170.6, subdivision (2). We disagree and will issue the requested writ of mandate.

Factual and Procedural Summary

The People filed an amended complaint on April 15, 1994, charging Leroy Jesse Maloy (Maloy) with 10 counts of various sexual offenses against several minors. The prohibited acts allegedly occurred between January 1967 and April 1979. The action was brought after the enactment of Penal Code section 803, subdivision (g) in…