Asmik Akopyan v. The Superior Court of Los Angeles County, Zulma Unzueta

Petitioner Asmik Akopyan, M.D., seeks a writ of mandate

compelling the trial court to vacate its order granting real party

in interest Zulma Unzueta’s peremptory challenge to Judge

Anthony J. Mohr under Code of Civil Procedure section 170.61

filed after this court conditionally reversed the judgment entered

after a jury trial in favor of Dr. Akopyan on Unzueta’s claim for

medical malpractice. Unzueta argued on appeal the trial court

erred in denying the Batson/Wheeler2 motion the court made sua

sponte after Dr. Akopyan’s attorney exercised peremptory

challenges to six Hispanic prospective jurors out of his seven total

challenges. We agreed and conditionally reversed for the limited

purpose of conducting the second and third steps of the

Batson/Wheeler inquiry as to all six challenged Hispanic jurors.

(Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 202 (Akopyan I).)

Dr. Akopyan contends in his petition that section 170.6,

subdivision (a)(2), which authorizes a peremptory challenge

following reversal on appeal where the trial court is assigned to

conduct a new trial, does not authorize a challenge following a

conditional reversal where the remand is for the purpose of

requiring the trial court to reconsider a pretrial Batson/Wheeler

motion. We agree the trial court has not yet been “assigned to

conduct a new trial” on remand under section 170.6, subdivision

(a)(2). Therefore, the trial court should have waited to rule on

the peremptory challenge until it conducted the Batson/Wheeler

inquiry, then granted the disqualification motion only if it

ordered a new trial. We now grant the petition.

1 All further undesignated statutory references are to the

Code of Civil Procedure.

2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.

Wheeler (1978) 22 Cal.3d 258 (Wheeler).

3

FACTUAL AND PROCEDURAL BACKGROUND

A. Unzueta’s Prior Lawsuit and Appeal

Unzueta filed this action in 2012, alleging Dr. Akopyan

committed medical malpractice in the delivery of Unzueta’s first

child. Unzueta alleged Dr. Akopyan’s negligent administration of

an epidural injection resulted in paralysis of her right leg.

On the second day of jury selection, defense counsel

exercised four peremptory challenges to excuse prospective jurors

R. Medina, J. Quintero, G. Henriquez, and R. Villarreal. That

day the jury panel was sworn. The next day, when voir dire

continued for the selection of alternate jurors, defense counsel

exercised three peremptory challenges to excuse prospective

jurors D. Winfrey, D. Zaldana, and A. Marquez, two of whom

were Hispanic. Outside the presence of the jury, the trial court

made a sua sponte Batson/Wheeler motion, which Unzueta

joined. The court then asked defense counsel to justify his

peremptory challenges as to Zaldana and Marquez, but not the

four Hispanic jurors who had been excused the prior day. The

court denied Unzueta’s request the court inquire about the prior

four jurors, stating “that water is under the bridge.” The court

denied the Batson/Wheeler motion, finding defense counsel had

justified his use of peremptory challenges as to the alternate

jurors.

After a trial, the jury returned a special verdict for

Dr. Akopyan, finding she was negligent in the care and treatment

of Unzueta, but the negligence was not a substantial factor in

causing harm to Unzueta.

On appeal, we concluded the trial court erred by failing to

require defense counsel to provide his justifications for excusing

4

all six Hispanic prospective jurors, explaining, “Once the trial

court found a prima facie showing of group bias, the court was

required to elicit from [defense counsel] justifications for each of

the six challenges forming the basis for the prima facie showing.”

(Akopyan I, supra, 42 Cal.App.5th at p. 217.) We remanded for

the trial court to require defense counsel to state his reasons for

challenging prospective jurors Medina, Quintero, Henriquez, and

Villarreal, and then decide in light of the record as to all six

jurors whether Unzueta had proved purposeful racial

discrimination. (Id. at p. 223.) We instructed the trial court that

if it “finds, because of the passage of time or other reason, it is

unable to conduct the evaluation, or if any of the challenges to

the six Hispanic prospective jurors were based on racial bias, the

court should set the case for a new trial. If the court finds

defense counsel’s race-neutral explanations are credible and he

exercised the six peremptory challenges in a permissible fashion,

the court should reinstate the judgment.” (Id. at pp. 223-224.) In

all other respects, we affirmed.

B. Proceedings on Remand

On remand, in a January 29, 2020 minute order, the trial

court (Judge Mohr) set a hearing “re: Remand/Remittitur” for

February 21, 2020. On February 26 Unzueta filed a motion

under section 170.6, subdivision (a)(2), to disqualify Judge Mohr,

who had presided over the trial.3 On March 2 the trial court

granted Unzueta’s disqualification motion, finding the challenge

was timely filed and proper because the court on remand was

required “to make a factual determination after evidentiary

3 It does not appear from the record the February 21, 2020

hearing took place.

5

hearing” and potentially a new trial on the merits. The court

ordered the matter transferred to Judge John J. Kralik.

On March 16, 2020 Dr. Akopyan filed a petition for writ of

mandate directing the trial court to vacate its order accepting

Unzueta’s peremptory challenge. Following supplemental

briefing, on April 15, 2020 we issued an order to show cause why

relief should not be granted. Unzueta filed a return, and

Dr. Akopyan filed a reply.

DISCUSSION

A. Standard of Review

“We review questions of statutory construction de novo.

Our primary task ‘in interpreting a statute is to determine the

Legislature’s intent, giving effect to the law’s purpose.’”

(California Building Industry Assn. v. State Water Resources

Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, A.J. Fistes Corp.

v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687.) To

determine whether a conditional reversal and remand for the

limited purpose of conducting the second and third steps of the

Batson/Wheeler inquiry is a “new trial” within the meaning of

section 170.6, subdivision (a)(2), we look first to the language of

the statute, which is “the best indication of legislative intent.”

(Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253

(Peracchi); see California Building, at p. 1041.) “‘[W]e do not

construe statutes in isolation, but rather read every statute “with

reference to the entire scheme of law of which it is a part so that

the whole may be harmonized and retain effectiveness.”’”

(Peracchi, at p. 1253; accord, California Building, at p. 1041.)

“‘“If the statutory language permits more than one reasonable

interpretation, courts may consider other aids, such as the

6

statute’s purpose, legislative history, and public policy.”’” (City of

San Jose v. Superior Court (2017) 2 Cal.5th 608, 616-617; accord,

Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567

[“‘When a statute is capable of more than one construction, “‘[w]e

must . . . give the provision a reasonable and commonsense

interpretation consistent with the apparent purpose and

intention of the lawmakers, practical rather than technical in

nature, which upon application will result in wise policy rather

than mischief or absurdity.’”’”].)4

4 An order determining the disqualification of a judge may be

reviewed by writ of mandate. (§ 170.3, subd. (d).) Unzueta

contends writ relief is not appropriate, arguing Dr. Akopyan will

not suffer irreparable harm if relief is not granted because there

is not an adequate record on which Judge Mohr can perform the

second and third steps of the Batson/Wheeler analysis and, as a

matter of “common sense,” Judge Mohr will not recall the voir

dire that took place in 2012. However, “our issuance of the order

to show cause determined, in effect, that petitioners’ remedy at

law was inadequate [citation], thus making writ review proper.”

(Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 476-477;

accord, Marron v. Superior Court (2003) 108 Cal.App.4th 1049,

1056.) It will be up to Judge Mohr in the first instance to

determine whether he can perform an evaluation of defense

counsel’s justifications for his peremptory challenges. The

possibility that Judge Mohr may decide he cannot perform the

Batson/Wheeler evaluation, leading him to set the case for a new

trial, is not a valid basis for denying writ relief.

7

B. A Limited Remand To Conduct a Batson/Wheeler Inquiry

After Trial Does Not Constitute a “New Trial” Under

Section 170.6, Subdivision (a)(2)

“Section 170.6 allows a defendant to bring a motion—

supported by an affidavit or declaration—alleging that the

assigned judge ‘is prejudiced against a party or attorney’ such

that the party or attorney ‘cannot, or believes that he or she

cannot, have a fair and impartial trial or hearing before the

judge.’ ([Id.], subd. (a)(1), (2).) So long as the requirements for

filing such a motion are followed, section 170.6 requires a

different judge to be assigned in lieu of the originally assigned

one. (Id., subd. (a)(4).)” (People v. Perez (2018) 4 Cal.5th 421,

439; accord, Peracchi, supra, 30 Cal.4th at p. 1248 [“Section 170.6

permits a party in civil and criminal actions to move to disqualify

an assigned trial judge on the basis of a simple allegation by the

party or his or her attorney that the judge is prejudiced against

the party.”].)

Section 170.6, subdivision (a)(2), provides in relevant part,

“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 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 motion shall be made

within 60 days after the party or the party’s attorney has been

notified of the assignment.”

In Peracchi, a criminal defendant petitioned for a writ of

mandate after the trial court denied his disqualification motion

8

under an earlier version of section 170.6, subdivision (a)(2),5 after

the Court of Appeal reversed his conviction on one of two counts

and remanded to the trial court for a retrial of the reversed count

or resentencing. (Peracchi, supra, 30 Cal.4th at p. 1250.) On

remand, the case was assigned to the judge who had presided at

trial. (Ibid.) The defendant petitioned to disqualify the judge

pursuant to section 170.6. (Peracchi, at p. 1250.) At a hearing,

the judge “announced that if the prosecution determined that the

reversed count should be retried, the challenge would be granted.

If, on the other hand, the prosecution determined not to retry the

reversed count and the matter merely required a new sentencing

hearing, the challenge would be denied.” (Ibid.) After the

prosecutor stated the reversed count would not be retried, the

judge denied the challenge and set the matter for a sentencing

hearing. (Ibid.)

To determine whether the trial court improperly denied the

defendant’s challenge under section 170.6, the Supreme Court

looked to the meaning of a “new trial,” which Penal Code section

1179 defined as “‘a reexamination of the issue in the same Court,

before another jury, after a verdict has been given.’” (Peracchi, at

p. 1253.) The Court also considered that under Penal Code

section 1180, “‘[t]he granting of a new trial places the parties in

the same position as if no trial had been had. All the testimony

must be produced anew, and the former verdict or finding cannot

be used or referred to, either in evidence or in argument . . . .’”

(Peracchi, at p. 1253.) The Court reasoned that the trial court’s

5 The court in Peracchi relied upon section 170.6, former

subdivision (2) (Peracchi, supra, 30 Cal.4th at p. 1250), which as

part of a 2003 amendment was moved to section 170.6,

subdivision (a)(2), without substantive change.

9

“function at sentencing . . . ensures that resentencing cannot

occur ‘as if no trial had been had.’” (Id. at p. 1254.) To the

contrary, the resentencing hearing is “the occasion on which the

court pronounces the judgment arising from the verdict.” (Ibid.)

The Court acknowledged that at sentencing “the court’s function

may include resolution of certain factual issues that relate to the

choice of appropriate sentence,” but explained the trial court

“resolves those issues in light of what occurred at trial.” (Ibid.)

Further, “The trial court is considered to be in the best position to

conduct the resentencing hearing. The preference for a judge

who is well informed about the case serves the interests of both

parties, and an alternative practice would impose heavy burdens

on scarce judicial resources.” (Ibid.)

The Peracchi court concluded the term “new trial,” as used

in section 170.6, subdivision (a)(2), should be interpreted by

reference to the definition the term is given in the Code of Civil

Procedure or the Penal Code, depending on which code applies.

(Peracchi, supra, 30 Cal.4th at p. 1261.) As the Supreme Court

observed, section 656 of the Code of Civil Procedure, which “has

been construed quite broadly,” defines a “new trial” as “a reexamination of an issue of fact in the same court after a trial and

decision by a jury, court or referee.” (Peracchi, at p. 1259; accord,

Burdusis v. Superior Court (2005) 133 Cal.App.4th 88, 92

(Burdusis).) The Supreme Court rejected the argument “a section

170.6 challenge should be permitted at any hearing in which

there is any potential for bias,” and that “the Legislature

intended to protect, in all circumstances, parties who have

prevailed on appeal from the presumed ire or potential bias of

trial judges whose rulings have been reversed.” (Peracchi, at

p. 1261.)

10

As we explained in Geddes v. Superior Court (2005)

126 Cal.App.4th 417 (Geddes), appellate courts have included

within the definition of a “new trial” in civil cases under section

170.6, subdivision (a)(2), “(1) reversal of a summary judgment

motion on the merits; (2) remand for an evidentiary hearing and

factual determination after a bench trial in a civil action where

the judgment was reversed on appeal; [and] (3) dismissal of a

civil action at the pleading stage where the matter was remanded

for a factual determination on the merits of the defendants’ antiSLAPP motion . . . .” (Geddes, at p. 423.)

However, where the Court of Appeal reverses and remands

for redetermination of a motion that does not involve an

evaluation of the merits of the underlying action, section 170.6,

subdivision (a)(2), is not triggered. (See Burdusis, supra,

133 Cal.App.4th at p. 93 [reversal of ruling on pretrial motion for

class certification did not trigger § 170.6 because the trial court in

ruling on the motion “did not address the merits, nor did it

terminate the action, [and thus] there has been no trial”]; State

Farm Mutual Automobile Ins. Co. v. Superior Court (2004)

121 Cal.App.4th 490, 502 (State Farm) [reversal of trial court’s

pretrial motion determining applicable law did not support

challenge under § 170.6, subd. (a)(2), because the trial court did

not yet “‘try’ any of plaintiffs’ causes of action; it merely

decided . . . which state’s law will apply when the case is tried or

otherwise adjudicated”].)

A Batson/Wheeler hearing—like motions for class

certification and to determine the applicable law at issue in

Burdusis and State Farm—is not a trial because it does not

terminate the case or resolve its merits. As the State Farm court

reasoned, “Just as an in limine motion is not itself a ‘trial,’

neither was State Farm’s Motion to Determine Applicable Law.”

11

(Id. at p. 503.) So too here. A Batson/Wheeler motion is a

pretrial motion to evaluate whether a party’s exercise of

peremptory challenges against potential jurors was

impermissibly motivated by purposeful discrimination. (See

People v. Smith (2018) 4 Cal.5th 1134, 1146-1147 [identifying

Batson/Wheeler as a pretrial issue]; People v. Williams (2013)

56 Cal.4th 630, 649 [same].)

In Akopyan I, we remanded for the trial court to reconsider

its denial of its sua sponte Batson/Wheeler motion in light of

defense counsel’s justifications for his first four peremptory

challenges. (Akopyan I, supra, 42 Cal.App.5th at p. 223.) We

instructed the court to set the case for a new trial only if it first

found it was unable to conduct the Batson/Wheeler evaluation

(because of the passage of time or other reason), or any of the

challenges to the six Hispanic prospective jurors were based on

racial bias. (Ibid.) We further instructed that if the court found

after evaluation of defense counsel’s justifications there was no

Batson/Wheeler violation, the court should reinstate the

judgment. (Id. at pp. 223-224.)

Unzueta argues that even if the trial court’s

Batson/Wheeler determination was not a trial because it did not

resolve the underlying merits or terminate the case, her motion

to disqualify Judge Mohr was proper because it was made after a

trial and entry of judgment in the case. Not so. As we explained

in Geddes, supra, 126 Cal.App.4th at page 424, “a retrial is a

‘reexamination’ of a factual or legal issue that was in controversy

in the prior proceeding.” In Geddes, we reversed and remanded

the trial court’s grant of summary judgment based on the court’s

failure to comply with the requirement it specify the reasons for

granting the motion. (Ibid.) Although a reversal of a summary

judgment motion on the merits is considered a grant of a new

12

trial (ibid; State Farm, supra, 121, Cal.App.4th at p. 497), we

concluded our reversal of the judgment did not support a

peremptory challenge under section 170.6, subdivision (a)(2),

because “we did not remand the case for reconsideration of the

merits of the ruling, and such a fundamental reexamination of

the motion [was] unnecessary.” (Geddes, at p. 424; accord,

Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 560

(Paterno) [reversal of determination of liability at trial as to one

defendant and remand for a trial on damages was not a “new

trial” for purposes of peremptory challenge because under § 656,

the remand did not require a reexamination of a factual or legal

issue that was in controversy in the first trial].)6

As the Paterno court explained, “All liability issues have

been fully and finally settled by our decision in Paterno II. The

only task the judge must complete is to conduct a trial to

determine the amount of damages petitioners have suffered as a

result of the flood, and to enter judgment accordingly. Judge

Golden’s function at this point is not to go back and revisit any

factual or legal terrain that has thus far been traversed, but to go

forward with a trial on the issue of damages. While the analogy

is not perfect, the judge’s assignment after remand here bears

considerable resemblance to the postverdict sentencing hearing

6 First Federal Bank of California v. Superior Court (2006)

143 Cal.App.4th 310, relied on by Unzueta, is not to the contrary.

There, this court concluded a section 170.6 challenge on remand

following affirmance of a judgment after trial, but reversal of the

denial of an attorneys’ fees motion, was proper because the court

treated reconsideration of the attorneys’ fees motion as a new

trial. As discussed, the Batson/Wheeler pretrial motion did not

constitute a trial on the merits for purposes of section 170.6.

13

conducted by the trial judge in Peracchi, supra, 30 Cal.4th 1245.”

(Paterno, supra, 123 Cal.App.4th at p. 560.)

Although our conditional reversal of the judgment requires

the trial court to reexamine its prior Batson/Wheeler ruling

following a full trial on the merits, and the trial court’s resolution

of that inquiry may result in the setting of a new trial, as in

Geddes and Paterno, we did not remand for reconsideration of a

ruling on the merits of the case. Similarly, the reversal in

Peracchi, supra, 30 Cal.4th at page 1249 followed a trial on the

merits, and as the Supreme Court observed, “had the prosecution

determined to retry petitioner on the reckless driving count, a

new trial on that count would have ensued and the peremptory

challenge properly would have been granted.” (Id. at p. 1254,

fn. 5.) But in light of the decision by the prosecutor not to retry

the petitioner, the resentencing following a trial did not support a

preemptory challenge. (Id. at pp. 1254, fn. 5, 1257-1258.) Here

too, unless and until the trial court decides to grant the

Batson/Wheeler motion (or decide it is unable to decide the

motion), and orders a new trial, Dr. Akopyan’s section 170.6

challenge is premature and should not be granted.7

7 Stubblefield Construction Co. v. Superior Court (2000)

81 Cal.App.4th 762, 764-765, relied on by Unzueta, is not to the

contrary. There, the Court of Appeal determined section 170.6

permitted a new peremptory challenge on remand after partial

reversal of the trial court’s grant of summary judgment.

(Stubblefield, at p. 764.) In so doing, the court stated, “Although

there was no full trial of the matter in this case, a final judgment

was entered. Our partial reversal requires that the case be

reopened, with an actual trial if necessary; furthermore, our

partial reversal reflected our view that the trial judge erred in a

crucial decision of law.” (Id. at p. 766.) As discussed, resolution

14

We also find instructive the Peracchi court’s consideration

of the fact “a defendant’s interest in a full and fair sentencing

hearing usually is best served when the hearing is presided over

by the same judge who heard the evidence at trial.” (Peracchi,

supra, 30 Cal.4th at p. 1261.) The same policy consideration

weighs in favor of having Judge Mohr, who observed the

demeanor of the jurors and defense counsel in ruling on his sua

sponte Batson/Wheeler motion, preside over the reevaluation of

the motion on remand because he is uniquely well-positioned to

evaluate defense counsel’s justifications. The Legislature’s

concern for the potential that section 170.6 “‘may be abused by

parties seeking . . . to obtain a favorable judge’” (Maas v. Superior

Court (2016) 1 Cal.5th 916, 973) also cautions us against a broad

reading of section 170.6, subdivision (a)(2), to authorize a

peremptory challenge to litigants after a conditional reversal on

appeal where remand is for the limited purpose of resolving a

pretrial motion such as this.

of a motion for summary judgment “constitute[s] a ‘trial’” for

purposes of section 170.6, subdivision (a)(2). (State Farm, supra,

121 Cal.App.4th at p. 501.) We do not read Stubblefield to mean

section 170.6 permits a new challenge after a reversal any time

the trial court may conduct “an actual trial if necessary”

regardless of the nature of the reversal or the judicial task the

judge is called on to perform. (Stubblefield, at p. 767.) Further,

such a broad reading of section 170.6 runs counter to the

Supreme Court’s holding in Peracchi, supra, 30 Cal.4th at pages

1261 to 1262, as well as our holding in Burdusis, supra, 133

Cal.App.4th at page 90, in which we concluded section 170.6 does

not permit a peremptory challenge on remand following reversal

of an order resolving a pretrial motion that does not terminate or

address the merits of the case.

15

We reject Unzueta’s argument her disqualification motion

was appropriate because this court’s remand required the trial

court to perform more than a “ministerial” act. Contrary to

Unzueta’s contention, “application of section 170.6(a)(2) does not

rest solely on whether the trial judge is to perform a ministerial

task after reversal.” (State Farm, supra, 121 Cal.App.4th at

p. 503; accord, Paterno, supra, 123 Cal.App.4th at p. 561, fn. 8

[“We disagree . . . that whenever a trial judge on remand ‘will be

acting in more than a ministerial manner’ the hearing constitutes

a ‘new trial’ for purposes of section 170.6(a)(2).”].)8

Unzueta’s argument “potential for bias exists” if Judge

Mohr presides over the Batson/Wheeler inquiry is also not

persuasive. Although “[p]rotecting parties from the bias that a

trial judge might exhibit after a reversal is a laudable goal, [it is]

8 It is true that if the judicial task to be performed on

remand is ministerial in nature, “no new peremptory challenge is

permitted by section 170.6.” (Geddes, supra, 126 Cal.App.4th at

p. 424, fn. 4.) But the converse is not true. Section 170.6 does

not permit a new challenge after reversal for all nonministerial

tasks. (See Peracchi, supra, 30 Cal.4th at p. 1260 [criminal

sentencing is not a ministerial duty, but no new § 170.6 challenge

is permitted on remand for resentencing]; Andrew M. v. Superior

Court (2020) 43 Cal.App.5th 1116, 1120-1121, 1127 [conditional

reversal and limited remand to juvenile court to conduct a

transfer hearing pursuant to Proposition 57, the Public Safety

and Rehabilitation Act of 2016 (Cal. Const., art. I, § 32) “is not . . .

a ‘new trial’ under section 170.6 merely because the court will

exercise discretion or make factual findings”]; Burdusis, supra,

133 Cal.App.4th at p. 90 [no new § 170.6 challenge permitted on

remand following reversal of order denying class certification to

allow trial court to consider new decisional law filed after the

appeal].)

16

one that does not take precedence over every other element of a

fair trial. There is no indication that the Legislature intended

section 170.6, subdivision [(a)](2) to permit a peremptory

challenge whenever there exists even a potential for bias arising

out of a judge’s reaction to being reversed on appeal . . . .”

(Peracchi, supra, 30 Cal.4th at p. 1262; accord, Geddes, supra,

126 Cal.App.4th at pp. 424-425.)

We acknowledge Unzueta’s concern she would be deprived

of her right to file a peremptory challenge as to Judge Mohr if she

did not promptly file her peremptory challenge. Section 170.6,

subdivision (a)(2), authorizes a peremptory challenge following a

reversal “if the trial judge in the prior proceeding is assigned to

conduct a new trial on the matter. . . . The motion shall be made

within 60 days after the party or the party’s attorney has been

notified of the assignment.” Because Judge Mohr has not yet

ordered a new trial, Unzueta has not yet been “notified” of Judge

Mohr’s assignment to handle a possible new trial on remand. But

even if we were to read the trial court’s January 29, 2020 minute

order setting a hearing after remand as notification of a possible

new trial, the court should have deferred ruling on Unzueta’s

section 170.6 motion pending resolution of the Batson/Wheeler

inquiry. Just as the trial court in Peracchi, supra, 30 Cal.4th at

page 1250 announced the defendant’s peremptory challenge

would be granted if the prosecution elected to retry the reversed

count, but denied if it did not, Judge Mohr likewise could have

announced he would grant the challenge only if he ordered a new

trial, then waited to rule on the challenge until the conclusion of

the Batson/Wheeler hearing. The court’s determination of the

section 170.6 challenge at that point would have been timely

because it would precede any ruling on the contested issues at

trial. (See Frisk v. Superior Court (2011) 200 Cal.App.4th 402,

17

408 [“Trial courts must act upon peremptory challenges at the

first available opportunity, before ruling on contested issues, lest

this important right be lost or diminished through procedural

tactics or maneuvers.”].)

The petition is granted. A peremptory writ of mandate shall issue directing respondent superior court to vacate its March 2, 2020 order granting Unzueta’s motion to disqualify Judge Mohr and to enter a new order deferring a ruling on the motion until after resolution of the Batson/Wheeler inquiry. Dr. Akopyan is to recover her costs in this writ proceeding.