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Fedex Ground Package Sys. Inc. v. Superior Court

California Court of Appeals, Second District, First Division
Mar 4, 2008
No. B204604 (Cal. Ct. App. Mar. 4, 2008)

Opinion


FEDEX GROUND PACKAGE SYSTEM, INC., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent ANTHONY ESTRADA et al., Real Parties in Interest. B204604 California Court of Appeal, Second District, First Division March 4, 2008

NOT TO BE PUBLISHED

ORIGINAL PROCEEDING; Howard J. Schwab, Judge. Petition granted, L.A.S.C. No. BC210130

O’Melveny & Myers, Robert M. Schwartz, Chris A. Hollinger and Andrew M. Weiner for Petitioner.

No appearance for Respondent.

MALLANO, Acting P. J. VOGEL, J. JACKSON, J.

OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE

Leonard Carder, Lynn Rossman Faris, Beth A. Ross; Law Offices of Ellen Lake and Ellen Lake for Real Parties in Interest.

The trial court erred when it denied FedEx Ground Package Systems, Inc.’s (FedEx) Code of Civil Procedure section 170.6, subdivision (a)(2) challenge. Accordingly, we grant FedEx’s petition for a writ of mandate.

All statutory references are to the Code of Civil Procedure.

In Estrada v. FedEx Ground Package Systems, Inc. (2007) 154 Cal.App.4th 1, we reversed a $12 million award of attorney’s fees, reversed a finding that the drivers could not recover on their claims for reimbursement of certain out-of-pocket expenses, reversed a finding that that the drivers are not entitled to reimbursement for their work accident insurance premiums, and remanded the cause to the trial court for new hearings to determine the amounts to which the drivers are entitled for their out-of-pocket expenses and their work accident insurance premiums, and to thereafter determine the reasonable amount of fees and costs to be awarded.

Remittitur issued on December 10, 2007. On December 17, 2007, FedEx timely filed a peremptory challenge against Judge Howard J. Schwab. (§ 170.6.) On December 18, Judge Schwab struck the challenge on the grounds that Estrada was the prevailing party on appeal, and that no actual retrial was required, only a “mere calculation of attorneys fees.” FedEx then filed a petition for a writ of mandate, asking us to compel Judge Schwab to vacate his order and transfer the case to another judge. We notified the parties we were considering the issuance of a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), and have considered the opposition filed by Estrada.

Judge Schwab was not entitled to strike the challenge.

First, it is immaterial that Estrada prevailed in substantial part. (§ 170.6, subd. (a)(2) [“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.”]; Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761, 764.)

Second, our instructions about what is to occur on remand require much more than a “mere recalculation of the attorney fee award.” Before the new fee award can be determined, there must be hearings to determine the amounts recoverable by Estrada by reason of his cross-appeal, and all the fee issues must thereafter be revisited. (Estrada v. FedEx Ground Package System, Inc., supra, 154 Cal.App.4th at p. 18 [in “recalculating an appropriate fee award on remand, the trial court must determine anew whether any multiplier is appropriate in this case . . . . By the time the trial court revisits this issue, the total monetary award to plaintiffs will have increased . . . .”]; First Federal Bank of California v. Superior Court (2006) 143 Cal.App.4th 310, 313-314 [the reexamination of an issue previously in controversy constitutes a retrial]; Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 864 [challenge proper when remand requires the court to receive evidence and resolve a factual issue].)

For these reasons, let a peremptory writ issue commanding respondent superior court to vacate its order of December 18, 2007, denying FedEx’s peremptory challenge under Section 170.6(a)(2), and to issue a new and different order granting same, in Los Angeles Superior Court case No. BC210130, entitled Anthony Estrada et al. v. FedEx Ground Package System, Inc.

The temporary stay order is hereby vacated.

All parties shall bear their own costs.


Summaries of

Fedex Ground Package Sys. Inc. v. Superior Court

California Court of Appeals, Second District, First Division
Mar 4, 2008
No. B204604 (Cal. Ct. App. Mar. 4, 2008)
Case details for

Fedex Ground Package Sys. Inc. v. Superior Court

Case Details

Full title:FEDEX GROUND PACKAGE SYSTEM, INC., Petitioner, v. THE SUPERIOR COURT OF…

Court:California Court of Appeals, Second District, First Division

Date published: Mar 4, 2008

Citations

No. B204604 (Cal. Ct. App. Mar. 4, 2008)