PERLUSS, P. J., Dissenting. I respectfully dissent.
Following a jury verdict in favor of First Federal Bank of California (First Federal) in a lawsuit filed by Prestige of Beverly Hills, Inc. (Prestige) against First Federal for breach of contract and violation of the California Uniform Commercial Code, First Federal filed a motion for attorney fees, arguing it was entitled to recover fees as the prevailing party under its contractual agreements with Prestige, as well as several provisions of the Commercial Code. The trial court denied the motion without stating a basis for its decision. On appeal we reversed, holding the trial court had erred as a matter of law in declining to award attorney fees under the indemnity provision in the parties’ account agreement. (Prestige of Beverly Hills, Inc. v. First Federal Bank of California (Feb. 6, 2006, B175403) [nonpub. opn.].) In reaching that decision, we emphasized that no conflicting extrinsic evidence had been offered to interpret the relevant fee provisions and no facts were in dispute. [316]Accordingly, we reviewed the trial court’s ruling on the motion de novo. In light of our reversal, we remanded the matter “for further proceedings in connection with First Federal’s motion for attorneys’ fees”—that is, for the trial court to determine the amount of fees to which First Federal was entitled.
In Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 423-424 [23 Cal.Rptr.3d 857] (Geddes), we held Code of Civil Procedure “Section 170.6[1] applies only where the matter is to be retried, not where it is remanded with instructions that require the trial court to complete a judicial task not performed in the prior proceeding. In the context of this statute, a retrial is a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.” (Fn. omitted.) In support of that proposition we cited both section 656 ([“A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee”]) and Paterno v. Superior Court (2004) 123 Cal.App.4th 548 [20 Cal.Rptr.3d 282] (Paterno), which held section 170.6, subdivision (a)(2), does not authorize a peremptory challenge following the reversal of a defense judgment on liability issues and remand for a trial on damages: “In the present case, our remand requires no reopening or reconsideration of issues litigated in prior proceedings conducted by Judge Golden. 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 .... 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.” (Paterno, at p. 560.)
Our remand for a determination of the amount of attorney fees to which First Federal is entitled following the reversal of the trial court’s determination Prestige was not liable for any such fees under the parties’ contract is, in my view, indistinguishable from the situation in Paterno, supra, 123 Cal.App.4th 548, where damages were to be considered for the first time on remand. Here, the trial court apparently interpreted the relevant contracts as a matter of law (see, e.g., Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839] [it is “solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence”]) and concluded no attorney fees could be recovered without addressing any factual issues relating to First Federal’s motion (that is, without considering the nature and amount of fees requested or [317]determining whether the fees sought were reasonable). The initial hearing on the attorney fees motion was unquestionably a “trial” within the meaning of our decision in Burdusis v. Superior Court (2005) 133 Cal.App.4th 88 [34 Cal.Rptr.3d 575], because it “addressed the merits or otherwise terminated the case.” (Id. at p. 93.) However, the trial court on remand is not free to reexamine the legal issue previously in controversy (that is, whether the account agreement authorizes the award of fees). In addition, because the court never reached any of the factual issues relating to the merits of First Federal’s motion, there can be no “reexamination” of factual issues on remand. Accordingly, there is no “retrial” within the meaning of section 170.6, subdivision (a)(2). (See § 656; Geddes, supra, 126 Cal.App.4th at p. 424; Paterno, supra, 123 Cal.App.4th at p. 560 [“section 656 leaves no doubt that a new trial must consist of a ‘reexamination.’ In order to conduct a reexamination, a court must revisit some factual or legal issue that was in controversy in the prior proceeding.”].)2
I certainly understand First Federal might be concerned that, after initially concluding as a matter of law no attorney fees should be awarded in this case, the trial court following our reversal and remand may question its fee request more closely than it would under other circumstances. But the Supreme Court has cautioned, “Protecting parties from the bias that a trial judge might exhibit after a reversal is a laudable goal, but 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 v. Superior Court, supra, 30 Cal.4th 1245, 1262; see Geddes, supra, 126 Cal.App.4th at pp. 424-425 [hypothetical risk trial court could react adversely to appellate court reversal of its initial decision, standing alone, is insufficient basis to expand scope of peremptory challenge under § 170.6, subd. (a)(2)].)
[318]As a general rule, it is the trial judge who actually presided over the case that is in the best position to determine the value of professional services rendered in the matter. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [141 Cal.Rptr. 315, 569 P.2d 1303] [“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court. . . .’ [Citations.]”]; Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1217 [131 Cal.Rptr.2d 620].) Absent statutory language or legislative history that more clearly supports permitting a peremptory challenge directed to that judge in the circumstances of this case, I would deny the petition for a peremptory writ. (See Peracchi v. Superior Court, supra, 30 Cal.4th at p. 1263 [“W]ith respect to the assertion that section 170.6 must be given a liberal construction, our own cases have observed that because of the dangers presented by judge-shopping—by either party—the limits on the number and timing of challenges pursuant to this statute are vigorously enforced”].)
Statutory references are to the Code of Civil Procedure.
The analysis in Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762 [97 Cal.Rptr.2d 121], upon which the majority relies, does support its conclusion the proceedings on remand in this case are properly considered a new trial within the meaning of section 170.6, subdivision (a)(2). However, Stubblefield was decided prior to Peracchi v. Superior Court (2003) 30 Cal.4th 1245 [135 Cal.Rptr.2d 639, 70 P.3d 1054], which, although a criminal case, broke the trend of appellate decisions advancing increasingly expansive interpretations of the term “new trial” in section 170.6, subdivision (a)(2), based on its examination of both the actual language and legislative history of that provision. (See Paterno, supra, 123 Cal.App.4th at p. 558.) In my view both Stubblefield and the holding of the majority in this case are inconsistent with the Supreme Court’s view of the proper interpretation of section 170.6, subdivision (a)(2), as discussed in Peracchi, as well as with our own, post-Peracchi decision in Geddes, supra, 126 Cal.App.4th at pages 423-425.