Under the present facts, the 60-day period for ruling on a motion for new trial (Code Civ. Proc., § 660)1 should be suspended or tolled, and plaintiff Davcon, Inc. should be estopped from asserting that Judge Trask’s March 29, 2001, order granting defendant Roberts & Morgan’s motion for new trial was untimely.
Defendant contends the 60-day period was suspended or tolled after plaintiff filed its peremptory challenge to Judge Trask. (§ 170.6.) Plaintiff contends the peremptory challenge was effective immediately, and was not pending between the date of Judge Trask’s order accepting the peremptory challenge (February 26) and the date Judge Trask rescinded her acceptance of the peremptory challenge (March 7). Therefore, plaintiff argues, its peremptory challenge did not suspend or toll the running of the 60-day period.
*1369First, plaintiff’s peremptory challenge was untimely. A peremptory challenge is immediately effective only if it is in proper form and timely filed. (See, e.g., Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59 [116 Cal.Rptr.2d 616]; Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212, 1219 [210 Cal.Rptr. 368].)
Section 170.6, subdivision (2) provides that “[I]n no event shall any judge ... entertain [a peremptory challenge] if it be made after ... trial of the cause has otherwise commenced.” Based on this provision, the court in Jacobs v. Superior Court (1959) 53 Cal.2d 187 [1 Cal.Rptr. 9, 347 P.2d 9] articulated the “continuity of the proceedings” rule, “since the [peremptory challenge] must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.” (Id. at p. 190, italics added.)
In 1985, section 170.6, subdivision (2) was amended to further provide that “[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.”
No case has yet decided whether a hearing or ruling on a motion for new trial or judgment notwithstanding the verdict, following an appeal, is a “new trial” within the meaning of section 170.6, subdivision (2). In my view, it is not. It is, rather, a continuation of the immediately preceding trial.
In the prior appeal, this court reversed the “trial court’s decision,” that is, its order granting defendant’s oral motion for judgment notwithstanding the verdict, and directed the entry of judgment in favor of plaintiff. This court did not order a “new trial,” however, and expressed no opinion whether there were any procedural avenues available to attack the judgment in the trial court.
Cases applying the 1985 amendment to various postappeal proceedings are distinguishable. (See, e.g., People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391 [109 Cal.Rptr.2d 897]; Stubblefield Construction Co. v. Superior Court (2000) 81 Cal.App.4th 762 [97 Cal.Rptr.2d 121]; Hendershot v. Superior Court (1993) 20 Cal.App.4th 860 [24 Cal.Rptr.2d 645]; Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572 [284 Cal.Rptr. 495].) In each of these cases, the original trial judge was assigned to conduct a “new trial,” that is, reexamine an issue of fact. (§ 656.) None of these cases involved a postappeal hearing or ruling on a motion for new trial or judgment notwithstanding the verdict.
Notably, in each of these cases, the courts found that the 1985 amendment was intended to “reach cases ‘in which the trial judge might be perceived as *1370holding a bias against the party that had successfully pressed the appeal....’ ” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245 [135 Cal.Rptr.2d 639, 70 P.3d 1054].) In all postappeal proceedings, there is a danger that the trial judge whose decision or order was reversed will be biased against one or more parties. But the 1985 amendment does not apply to all postappeal proceedings. (Ibid.) By its express terms, the 1985 amendment only applies if the trial judge whose decision or order was reversed on appeal is assigned to conduct a new trial, that is, reexamine an issue of fact. (§ 656.)
“The rationale for the [continuity of the proceedings] rule is that if a peremptory challenge is allowed in a proceeding that is a continuation of a prior proceeding in which trial occurred, ‘it would mean that the judge who tried the case, and who is ordinarily in the best position to pass upon the questions involved, could by a mere general allegation of prejudice, and without any judicial determination of the facts, be disqualified .... Such procedure would make it possible for litigants to gamble on obtaining a favorable decision from one judge, and then, if confronted with an adverse judgment, allow them to disqualify him ... in the hope of securing a different ruling from another judge in supplementary proceedings involving substantially the same issues.’ ” (Stephens v. Superior Court, supra, 96 Cal.App.4th at p. 60, quoting Jacobs v. Superior Court, supra, 53 Cal.2d at p. 191.)
Before the 1985 amendment was enacted, our state Supreme Court warned against the potential for abuse of section 170.6. “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.” (McClenny v. Superior Court (1964) 60 Cal.2d 677, 689 [36 Cal.Rptr. 459, 388 P.2d 691]; see also Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148]; Peracchi v. Superior Court, supra, 30 Cal.4th 1245.)
Accordingly, plaintiff’s preemptory challenge to Judge Trask, one day before she was scheduled to rule on defendant’s motion for a new trial, was untimely and improper. It was an abuse of section 170.6. It also had the practical, if not intended, effect of delaying the hearing on defendant’s motion for new trial or judgment notwithstanding the verdict from February 27 to March 29, three days beyond the 60-day period.2 For this reason, the 60-day period should be suspended or tolled, and plaintiff should be estopped from challenging Judge Trask’s order granting a new trial as untimely.
It is well settled that “[t]he 60-day period under section 660 is mandatory and jurisdictional. [Citations.] The period may not be enlarged under the *1371rubric of mistake, inadvertence, surprise, excusable neglect under section 473 or by means of a nunc pro tunc order. [Citation.] ‘[A]n order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court’s jurisdiction and void.’ [Citation.]” (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517-518 [91 Cal.Rptr.2d 758], italics added.)
But it has also been held that an “[a]ction ‘in excess of jurisdiction’ by a court that has jurisdiction in the ‘fundamental sense’ (i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable. [Citations.] In contrast to cases involving other types of jurisdictional defects, a party may be precluded from challenging action in excess of a court’s jurisdiction when the circumstances warrant applying principles of estoppel ....”3 (Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1088 [56 Cal.Rptr.2d 386], first italics added.)
Thus, it has been held that the 60-day period must be suspended or tolled, where to do otherwise “would lead to absurdity.” (Collins v. Nelson (1940) 41 Cal.App.2d 107, 112 [106 P.2d 39] (Collins).) More generally, a party may be estopped from challenging an act in excess of a court’s jurisdiction where allowing the challenge would permit the party to “trifle with the courts.” (City of Los Angeles v. Cole (1946) 28 Cal.2d 509, 515-516 [170 P.2d 928], overruled on other grounds in County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680 [312 P.2d 680].) Whether a party shall be estopped from challenging an act in excess of a court’s jurisdiction “depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy.” (In re Griffin (1967) 67 Cal.2d 343, 347-348, 62 Cal.Rptr. 1 [431 P.2d 625].)
In Collins, a defendant’s motion for new trial was scheduled to be heard on January 13, 1937. On the date of the hearing, the plaintiff filed a motion to disqualify the trial judge for cause. (Former § 170, repealed by Stats. 1984, ch. 1555, § 1 p. 5479.) Earlier, the trial judge had entered judgment notwithstanding the verdict in favor of the defendants. The plaintiff appealed, and the Collins court reversed. (Collins, supra, 41 Cal.App.2d at p. 110.)
On January 13, 1937, the trial judge denied the plaintiff’s disqualification motion, granted the defendant’s motion for new trial, and the plaintiff again *1372appealed. The Collins court then held that the trial judge was without jurisdiction to rule on the section 170 motion, and that his rulings on that motion and on the motion for new trial were “void ab initio.” (Collins, supra, 41 Cal.App.2d at pp. 110-111.)
Upon remittitur, a second judge denied the plaintiff’s section 170 motion, and referred the case back to the first trial judge. Then, on September 2, 1938, the first trial judge granted the defendant’s motion for new trial. The plaintiff again appealed. This time, the plaintiff argued that the first trial judge was without authority or jurisdiction to rule on the motion for new trial, because the 60-day period had expired. Indeed, nearly 20 months passed between January 13, 1937, and September 2, 1938. (Collins, supra, 41 Cal.App.2d at pp. 111-112.)
The Collins court held that the 60-day period was suspended from January 13, 1937, to September 2, 1938. Thus, only 32 days had elapsed between the date the defendant filed its notice of intention (December 12, 1936) and the date the motion for new trial was granted (September 2, 1938). The Collins court reasoned that, “To hold otherwise would lead to absurdity, because a party resisting a motion for new trial could defeat it merely by [filing a section 170 motion], in the determination of which ... more than 60 days might reasonably be expected to elapse ...” (Collins, supra, 41 Cal.App.2d at p. 112-113.)
Here, as in Collins, the motion for new trial was originally scheduled well within the 60-day period. Here, as in Collins, plaintiff’s peremptory challenge to Judge Trask delayed the hearing on defendant’s motion for new trial beyond the 60-day period.4 And here, as in Collins, plaintiff could have reasonably expected that its peremptory challenge, filed only one day before the February 27 hearing, would delay the hearing beyond the 60-day period.
Judge Trask accepted plaintiff’s peremptory challenge on February 26, and notified the parties by telephone that the February 27 hearing was off calendar and that the matter would be reassigned. On March 7, Judge Kaiser declined to rule on defendant’s motion for new trial, because he believed the peremptory challenge was improper, and sent the matter back to Judge Trask. On the same date, Judge Trask rescinded her earlier acceptance of the peremptory challenge.5 Finally, on March 29, Judge Trask heard and granted defendant’s motion.
*1373Plaintiff waited over 30 days after defendant filed its notice of intention to file its peremptory challenge. By this time, both sides had fully briefed the substance of defendant’s pending motion. When time is of the essence, as it invariably is when a hearing on a motion for new trial is pending, a party should not be allowed to thwart the proceedings by filing a facially invalid motion.
Regardless of whether plaintiff knew that its peremptory challenge was untimely and improper, its filing constituted erroneous, affirmative conduct which caused the 60-day period to expire before defendant’s motion could be heard. Plaintiff should be estopped from benefiting from its own wrong. (Civ. Code, § 3517.)
This is not a case where the moving party failed to exercise diligence in presenting or prosecuting its motion for new trial. (Dodge v. Superior Court, supra, 77 Cal.App.4th at pp. 523-524 and fn. 12; Estate of Shepard (1963) 221 Cal.App.2d 70, 74 [34 Cal.Rptr. 212].) Nor is this a case where the litigants have attempted to “invest the court with jurisdiction to hear and determine the motion for a new trial by consent, waiver, agreement or acquiescence.” (City of Santa Barbara v. Superior Court (1966) 240 Cal.App.2d 612, 614 [49 Cal.Rptr. 798].)
*1374Accordingly, I would find that the 60-day period was suspended or tolled, from February 26 to March 29, and that the March 29 order granting defendant’s motion for new trial was therefore timely.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The 60-day period expired on March 26, 60 days after the date defendant filed its notice of intention to move for a new trial on January 24. (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 151 [242 Cal.Rptr. 649].)
“The principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it. [Citation.] In contrast, a court acts in excess of jurisdiction ‘ “where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” ’ [Citation.]” (Conservatorship of O’Connor, supra, 48 Cal.App.4th at pp. 1087-1088.)
For purposes of delaying the proceedings, there is no difference between a disqualification motion under former section 170, which required a hearing, and a peremptory challenge under section 170.6, which does not.
Judge Trask had inherent authority to rescind her erroneous order accepting plaintiff’s peremptory challenge. (Stephens v. Superior Court, supra, 96 Cal.App.4th at pp. 64-65.) “ ‘[T]he court’s inherent power to correct its own rulings is based on the California *1373Constitution and cannot be impaired by statute.’ [Citation.] ‘... Whether the trial judge has an unprovoked flash of understanding in the middle of the night or is prompted to rethink an issue by the stimulus of a motion is “constitutionally immaterial” to the limitation on the power of the Legislature to regulate the judiciary.’ [Citation.] In either case, the ability of the trial court to correct what it perceives to be an incorrect interim ruling can only further the policy of conserving judicial resources.” (Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031, 1042 [126 Cal.Rptr.2d 310].)
The oft-quoted rule that a peremptory challenge is “immediately effective,” “irrevocable,” and “cannot be rescinded” is based on section 170.6, subdivision (3). (See, e.g., Louisiana-Pacific Corp. v. Philo Lumber Co., supra, 163 Cal.App.3d at pp. 1219, 1221; Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 147 [78 Cal.Rptr.2d 721].) The statute provides that, upon the filing of a “duly presented” (i.e. timely) peremptory challenge, the challenged judge must reassign the case. The statute does not and cannot affect the challenged judge’s inherent authority to rescind his or her erroneous acceptance of an untimely peremptory challenge.
Nor is the inherent constitutional authority of a challenged judge to rescind his or her erroneous acceptance of an untimely peremptory challenge affected by section 170.3, subdivision (d). This statute provides that “[t]he determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate ....” (County of San Diego v. State of California (1997) 15 Cal.4th 68, 110 [61 Cal.Rptr.2d 134, 931 P.2d 312], italics added.) The mere availability of writ review has nothing to do with a judge’s authority to correct an erroneous ruling.