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Court of Appeal:
Judge Erroneously Bowed to Challenge Under CCP §170.6
In February Decision, Appeals Court Ordered Trial of Previously Untried Cause of Action; Freshly Filed Opinion Says That Did Not Trigger Right to Disqualify Judge, Peremptorily, on Remand, Because No New Trial Is Implicated
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has taken the rare action of countermanding a judge’s order accepting a peremptory challenge to him, directing the San Diego Superior Court to reassign the case to that bench officer.
Acting Presiding Justice Truc T. Do authored the unpublished opinion, filed Wednesday, granting a petition for a writ of mandate sought by the defendant in a civil case, KBC Capital LLC. That party had been sued by businessman Peter Starflinger both for breach of a contract to sell him an office building and for specific performance of that agreement.
Judge Richard S. Whitney ruled that a jury would decide the legal cause of action first, deferring consideration of the equitable claim for specific performance. After the jury awarded Starflinger $300,000 in damages, the plaintiff asked Whitney to conduct a bench trial on his remaining claim, but the judge declined, saying that Starflinger had “elected his remedy” by seeking damages.
Earlier Decision
Starflinger appealed from the denial of his request. The Court of Appeal last Feb. 28 declared, in an opinion by Justice Joan K. Irion:
“We conclude that the trial court erred in failing to decide Starflinger’s request for specific performance. Accordingly, we reverse the judgment, and we remand for further proceedings consistent with this opinion.”
Upon remand, the plaintiff filed a peremptory challenge to Whitney which the judge accepted. KBC sought a writ, insisting that a disqualification motion, under the circumstances, was unauthorized.
The issue on appeal was whether Code of Civil Procedure §170.2(a)(2) required Whitney to step aside. The section provides:
“A motion under this paragraph may be made following reversal on appeal of a trial court’s decision…if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.”
Nature of Remand
Do wrote:
“[W]e did not and could not have remanded for a new trial within the meaning of section 170.6(a)(2), because there was no prior trial on the merits of Starflinger’s specific performance claim. This is because Judge Whitney severed the trial of KBC’s election of remedies defense from the trial of the merits of Starflinger’s specific performance claim and did not address the merits of that claim….Without a prior trial, there can be no new trial. The peremptory challenge was therefore improper. We reverse the trial court’s order reassigning the case.”
The jurist went on to say:
“Courts have often struggled in the face of various types of proceedings to find and articulate the precise dividing line in determining whether remand will result in a retrial….Our inquiry in the instant case, however, is straightforward. This is because the court severed the trial of KBC’s election of remedies defense from the trial of Starflinger’s request for specific performance. We see this fact to be dispositive.”
She explained:
“The court cannot conduct a retrial of a question that it severed and was never placed in controversy.”
The case is KBC Capital v. Superior Court, D083892.
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