Filed 12/23/16
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION THREE


TODD McNAIR,                                 B275282

       Petitioner,                           (Los Angeles County
                                             Super. Ct. No. BC462891)
       v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

       Respondent;

NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION,

       Real Party in Interest.


      ORIGINAL PROCEEDINGS in mandate. Michael J.
Raphael, Judge. Petition granted.
      Greene Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr;
Esner, Chang & Boyer and Stuart B. Esner for Petitioner.
      No appearance for Respondent.
      Loeb & Loeb and Laura A. Wytsma for Real Party in
Interest.
                     _____________________
                         INTRODUCTION
       In this proceeding, we hold that Code of Civil Procedure
section 170.6, subdivision (a)(2)1 allows a party to exercise a
second peremptory challenge only after prevailing in an appeal
from a final judgment, but not following reversal of an interim
decision. Early in this litigation, the National Collegiate Athletic
Association (NCAA) successfully challenged a jurist under section
170.6. Thereafter, we affirmed in part and reversed in part the
denial of a special motion to strike under the anti-SLAPP
statute.2 The trial judge who had ruled on the anti-SLAPP
motion then accepted the NCAA‟s postappeal peremptory
challenge under section 170.6, subdivision (a)(2) and disqualified
himself. Todd McNair petitions for writ of mandate contending
that the trial court erred as a matter of law and asking us to
issue a writ directing the court to vacate its order accepting the
postappeal peremptory challenge. Based on the clear words of
the statute, we agree with McNair. Accordingly, we grant the
writ petition.
       FACTUAL AND PROCEDURAL BACKGROUND
       McNair brought this lawsuit against the NCAA alleging
seven causes of action: (1) libel; (2) slander; (3) interference with
prospective economic advantage; (4) interference with contract;
(5) breach of contract; (6) negligence; and (7) declaratory relief.
(McNair v. National Collegiate Athletic Assn. (Dec. 7, 2015,
B245475) [nonpub. opn.], at [p. 11] (McNair II).)


1    All further statutory references are to the Code of Civil
Procedure.
2     Section 425.16.




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       Shortly thereafter, in 2011, the NCAA exercised a
peremptory challenge to the trial judge assigned to the case at
the time, and so the case was reassigned to a different jurist.3
The NCAA then moved to strike the complaint under the anti-
SLAPP statute. The trial court denied the NCAA‟s motion on the
ground that only two of the five causes of action, those for libel
and slander, arose from protected activity, but that McNair had
demonstrated a probability of prevailing on the merits. This
decision, rather than to finally dispose of any of McNair‟s causes
of action, allowed the litigation to proceed.
       The NCAA appealed. We affirmed the trial court‟s ruling
in large part but reversed a small portion. Specifically, we
agreed that McNair had demonstrated a probability of prevailing
on the merits of his two defamation causes of action and that his
negligence, contract, and declaratory relief causes of action did
not arise from protected activity. However, we held that
McNair‟s interference with contract and economic advantage
causes of action arose from protected activity and that McNair
had not demonstrated a probability of prevailing on the merits of
those two claims. (McNair II, supra, B245475, at [pp. 26-28 &
30].) Hence, of the complaint‟s seven causes of action, we
reversed the decision with respect to two, terminating them, but
affirmed the remainder of the trial court‟s ruling, thereby
preserving five of the causes of action for future adjudication.
(Id. at [p. 30].)

3      Although the October 2011 peremptory challenge is not in
the record in this proceeding, the NCAA does not dispute that it
had exercised a peremptory challenge early in this litigation. The
NCAA also observes that this case has been assigned to eight
trial judges in five years.




                                3
       The NCAA filed its second peremptory challenge under
section 170.64 to the trial judge who had denied its anti-SLAPP
motion. Without giving McNair a chance to file opposition,
despite McNair‟s letter indicating an opposition was forthcoming,
the trial judge accepted the NCAA‟s challenge and disqualified
himself. McNair filed his writ petition. We issued an order to
show cause. After briefing and argument, we grant the writ
petition.
                            DISCUSSION
       A “party may secure the disqualification of a judge on the
basis of an affidavit asserting that the party believes the judge is
biased. This constitutes the peremptory challenge of a judge set
forth in section 170.6.” (Peracchi v. Superior Court (2003) 30
Cal.4th 1245, 1251 (Peracchi).) Section 170.6 “reasonably serves
the Legislature‟s evident purpose of „maintaining the appearance
as well as the fact of impartiality in the judicial system: the
business of the courts . . . must be conducted in such a manner as
will avoid even the “suspicion of unfairness.” ‟ [Citation.]”
(Peracchi, at p. 1252.)
       Subdivision (a)(2) of section 170.6 authorizes a post-appeal
peremptory challenge when the same trial judge is assigned to
conduct a new trial after reversal on appeal. (See also Geddes v.
Superior Court (2005) 126 Cal.App.4th 417, 423, citing § 170.6,
subd. (a)(2); Stegs Investments v. Superior Court (1991) 233
Cal.App.3d 572, 575-576 (Stegs), quoting from Assem. Com. on
Judiciary, Analysis of Assem. Bill No. 1213 (1985-1986 Reg.

4      The NCAA also brought a challenge for cause under section
170.1. The trial court rejected that challenge and that decision
was not raised in the petition, with the result that it is not before
us in this proceeding.




                                  4
Sess.) as amended May 15, 1985.) Normally, matters remanded
by appellate courts for retrial were assigned to the same trial
judge who heard the case before appeal on the theory that the
judge who presided over the first trial was familiar with the
issues and was in a better position to expeditiously resolve the
case following remand. (Stegs, at p. 575.) The Legislature
created the postappeal peremptory challenge in 1985 to address
the concern that a judge who had been reversed might be biased
against the party who had successfully appealed that judge‟s
ruling. (Id. at pp. 575-576.)
       Section 170.6, subdivision (a)(2) provides in relevant
part: “[1] 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.
[2] 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.” (Italics added.)
McNair contends in his writ petition that this case is governed by
sentence two of section 170.6, subdivision (a)(2), and that the
NCAA has not satisfied the criteria for disqualification of the
trial judge who denied the anti-SLAPP motion because we did not
reverse a final judgment. The NCAA counters that the statute
allows for a peremptory challenge following the reversal of either
a final judgment or a trial court‟s decision - such as the denial of
the special motion to strike. The statute is clear and
unambiguous and McNair is correct. (See Casden v. Superior
Court (2006) 140 Cal.App.4th 417, 422 (Casden) [language of




                                  5
§ 170.6, subd. (a)(2) clearly and unambiguously allows a second
peremptory challenge after a successful appeal].)
       Generally, only one peremptory challenge may be filed by a
party, or side if there are multiple plaintiffs or defendants in an
action, “[e]xcept as provided in this section.” (§ 170.6, subd.
(a)(4); Casden, supra, 140 Cal.App.4th at p. 421.) Sentence two of
section 170.6, subdivision (a)(2) expresses the only exception to
the general rule of one peremptory challenge per side. (Casden,
at p. 421.) Sentence two authorizes a party or side to exercise a
postappeal peremptory challenge “regardless of whether that
party or side has previously done so” and “[n]otwithstanding
[section 170.6,] paragraph (4).” (§ 170.6, subd. (a)(2).) The
Legislature added sentence two in 1998 to overrule an appellate
court decision concerning the number of permissible peremptory
challenges, and “nothing more.” (Pfeiffer Venice Properties v.
Superior Court (2003) 107 Cal.App.4th 761, 766 (Pfeiffer).) The
NCAA has already used its one peremptory challenge in 2011,
and so sentence two of section 170.6, subdivision (a)(2) governs
this proceeding.
       The language of sentence two of section 170.6, subdivision
(a)(2) patently allows a second peremptory challenge following
the reversal of a final judgment only. (State Farm Mutual
Automobile Ins. Co. v. Superior Court (2004) 121 Cal.App.4th
490, 496; Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977
[statutory construction unnecessary where statute‟s language is
clear and unambiguous].) A second peremptory challenge is not
available to an appellant who secured the reversal of an interim
order. The two sentences of the second paragraph of section
170.6, subdivision (a)(2) state the applicable circumstances in
differing terms: sentence one authorizes a first challenge




                                6
“following reversal on appeal of a trial court‟s decision, or
following reversal on appeal of a trial court‟s final judgment,”
whereas sentence two authorizes a second challenge following
“the reversal of a final judgment” and makes no reference to trial
court decisions. (§ 170.6, subd. (a)(2), italics added.) “When one
part of a statute contains a term or provision, the omission of
that term or provision from another part of the statute indicates
the Legislature intended to convey a different meaning.
[Citation.]” (Cornette v. Department of Transportation (2001)
26 Cal.4th 63, 73.) The reading advocated by the NCAA, allowing
for a second peremptory challenge following reversal of an
interim decision, incorrectly inserts absent words into sentence
two and improperly renders that sentence redundant. (Id. at pp.
73-74 [“A court may not rewrite a statute, either by inserting or
omitting language, to make it conform to a presumed intent that
is not expressed”], citing § 1858.)
       Moreover, allowing a second peremptory challenge from a
trial court decision, as advocated by the NCAA, expands the
exception to the one-challenge rule by creating additional bases
for exercising challenges in violation of the principle that an
exception to a statute‟s general rule is to be strictly construed
and, in applying exceptions, courts include only those
circumstances within the words and reason of the exception.
(Da Vinci Group v. San Francisco Residential Rent etc. Bd. (1992)
5 Cal.App.4th 24, 28; cf. Casden, supra, 140 Cal.App.4th at p. 423
[second challenge a narrow exception to general rule].) We are
mindful that “ „courts of this state have been vigilant to enforce
the statutory restrictions on the number and timing of the
[challenges] permitted‟ ” under section 170.6, because a
peremptory challenge “presents the potential for abuse and




                                7
judge-shopping—on the part of either or both parties. . . . „ “We
cannot permit a device intended for spare and protective use to be
converted into a weapon of offense and thereby to become an
obstruction to efficient judicial administration.” ‟ [Citation.]”
(Peracchi, supra, 30 Cal.4th at pp. 1252-1253.) In recognition of
that judicial concern, sentence one of section 170.6, subdivision
(a)(2) makes a single challenge available commonly to any party
(Pfeiffer, supra, 107 Cal.App.4th at p. 764) “following reversal on
appeal of [either] a trial court‟s decision, or following reversal on
appeal of a trial court‟s final judgment.” (§ 170.6, subd. (a)(2),
italics added.) In contrast, as befitting the exception to the
general one-challenge rule, the circumstance in which a second
challenge is permitted is narrow: only by a successful appellant,
and only following reversal of a final judgment.
       “ „A judgment is final “when it terminates the litigation
between the parties on the merits of the case and leaves nothing
to be done but to enforce by execution what has been
determined.” ‟ [Citations.]” (Sullivan v. Delta Air Lines, Inc.
(1997) 15 Cal.4th 288, 304.) Whether a ruling is final depends on
the substance and effect of the adjudication, rather than the form
of the decree. (Griset v. Fair Political Practices Com. (2001) 25
Cal.4th 688, 698.) Generally speaking, when no issue remains for
future consideration, except compliance with the first decree‟s
terms, that decree is final; but “ „where anything further in the
nature of judicial action on the part of the court is essential to a
final determination of the rights of the parties, the decree is
interlocutory.‟ ” (Ibid.)
       The trial court here denied the NCAA‟s special motion to
strike which allowed the lawsuit to be adjudicated later, with the
result that it did not render a final judgment. The NCAA was




                                 8
partially successful in its appeal,5 having secured a reversal with
respect to two causes of action only. (See Stegs, supra, 233
Cal.App.3d at p. 576 [peremptory challenge available where a
single issue is left to be retried after appeal].) A second
peremptory challenge was not available to the NCAA because our
opinion did not reverse a “final judgment.” (§ 170.6, subd. (a)(2),
italics added.) The trial court erred as a matter of law in
accepting the NCAA‟s second peremptory challenge and
disqualifying itself.
       The NCAA counters, quoting from the legislative history of
the 1998 amendment to section 170.6, subdivision (a)(2), which
added sentence two, that the Legislature intended to allow a
second challenge after the reversal of both a final judgment and
an interim order. However, when, as here, the “statutory
language is clear and unambiguous there is no need for
construction, and courts should not indulge in it.” (West Covina
Hospital v. Superior Court (1986) 41 Cal.3d 846, 850; see Faria v.
San Jacinto Unified School Dist. (1996) 50 Cal.App.4th 1939,
1945 [if legislative history gives rise to conflicting inferences as to
legislation‟s purposes or intended consequences, then departure
from clear language of the statute is unjustified].) Sentence two
of section 170.6, subdivision (a)(2) clearly does not include the
word “decision.” Thus, even if the Legislature had contemplated
allowing a second peremptory challenge after the reversal of a
decision, it did not enact such a provision.



5    An order denying a special motion to strike is appealable
under section 904.1, notwithstanding it is not a final
determination of the parties‟ rights. (§ 425.16, subd. (i).)




                                  9
       The NCAA also argues, citing Omaha Indemnity Co. v.
Superior Court (1989) 209 Cal.App.3d 1266 at pages 1273-1274,
that we should not grant McNair‟s writ petition because
extraordinary relief sought by a petition for writ of mandate “is
appropriate only” where the trial court‟s decision is both clearly
erroneous as a matter of law and “ „substantially prejudices‟ ” the
petitioner. The NCAA argues that McNair has not suffered
prejudice. Yet, McNair was prejudiced by the trial court‟s abrupt
decision to accept the NCAA‟s second peremptory challenge
before he could oppose it, as he indicated he planned to do. And,
according to the NCAA, this case has been assigned to eight
judges in five years, and so another reassignment will only
further delay trial while a new jurist becomes familiar with the
case. Moreover, “the determination whether to accept or reject a
peremptory challenge is a significant judicial
event . . . reviewable only by immediate writ of mandate, not by
appeal from a subsequent judgment” (Frisk v. Superior Court
(2011) 200 Cal.App.4th 402, 409; § 170.3, subd. (d)), and so this
writ proceeding is the only means by which McNair can seek
relief. (Omaha Indemnity Co. v. Superior Court, supra, at p. 1274
[extraordinary writ relief may be granted when relief is only
available by writ and not appeal].) Finally, research has revealed
no published case on the question presented here and so
extraordinary writ relief is justified.




                                10
                           DISPOSITION
       The petition for writ of mandate is granted. The trial court
is directed to vacate its order of May 20, 2016 accepting the
NCAA‟s peremptory challenge pursuant to Code of Civil
Procedure section 170.6, and enter a new order rejecting the
challenge. Each party to bear its own costs.

      CERTIFIED FOR PUBLICATION




                                           ALDRICH, J.
We concur:




             EDMON, P. J.




             STRATTON, J.





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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