Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. JV73055
BY THE COURT:By petition for writ of mandate, M.V. seeks review of the ruling denying his challenge to Judge Marta Diaz pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2), which provides: “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.” (Hereafter referred to as section 170.6(2)(2).) Judge Diaz denied the challenge on the ground that the remand does not involve a “new trial.”
M.V. was removed from his home pursuant to Welfare and Institutions Code section 300 in July 2004 and was placed with foster parents Tina F. and B.F. In October 2005, M.V. was either bitten or scratched on his face by the family dog. The San Mateo County Human Services Agency (agency) thereafter filed a Welfare and Institutions Code section 388 (hereafter referred to as section 388) petition to modify the placement of M.V., which Judge Diaz granted. On appeal by the foster parents, we reversed the order granting the section 388 petition and remanded for further proceedings consistent with the views expressed in our opinion. We found the trial court’s findings inadequate to permit appellate review, noting that there is no indication whether the court considered the foster parents’ statement that they would get rid of the dog or whether removing M.V. from their home served his best interests in light of the recommendation of M.V.’s counsel and CASA that he remain with the foster parents so long as the dog is removed. Because one year had elapsed since M.V.’s removal, we also directed the court to consider evidence regarding M.V.’s current situation.
What we have directed is more than mere preparation of a statement of reasons at issue in Geddes v. Superior Court (2005) 126 Cal.App.4th 417, which was found not to be a new trial for purposes of section 170.6(a)(2). (See also Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526.) A proceeding is properly considered a “new trial” within the meaning of section 170.6(a)(2) when it involves reexamination of issues litigated in the prior proceeding. (First Federal Bank of California v. Superior Court (2006) 143 Cal.App.4th 310, 314; Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 561.) Our reversal and remand calls for such reexamination. Accordingly, we conclude that the trial court erred in denying M.V.’s challenge pursuant to section 170.6(a)(2).
We have reached our decision after giving notice to all parties that we might act by issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) The entitlement to relief is clear. (See Alexander v. Superior Court (1993) 5 Cal.4th 1218; Ng v. Superior Court (1992) 4 Cal.4th 29.) Accordingly, let a peremptory writ of mandate issue commanding respondent court to vacate its order denying petitioner’s challenge pursuant to section 170.6(a)(2) and to enter a new order granting that challenge. Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)