Wednesday, June 14, 2006
C.A. Rejects Second Post-Appellate Challenge Under Sec. 170.6
By KENNETH OFGANG, Staff Writer/Appellate Courts
A successful appellant is entitled to one, and only one, new peremptory challenge to a judge under Code of Civil Procedure Sec. 170.6 when the case is sent back for a new trial, the Court of Appeal for this district has ruled.
Div. Seven ruled Monday that Sec. 170.6(a)(2), which creates an exception to the one-peremptory-challenge-per-side rule, does not permit multiple challenges following a successful appeal.
The court denied a writ of mandate sought by Henry Casden, who was seeking to bar Los Angeles Superior Court Judge James Bascue from conducting the retrial of his suit against his brother, prominent real estate investor Alan Casden, and several of the Casden real estate entities.
Henry Casden, who was once a principal in the business but left after undergoing what he said was “unwarranted personal abuse” by his brother for years, filed suit in 1999 claiming he was owed severance pay and at least $225,000 in dividends from a partnership.
Alan Casden brought a counterclaim and prevailed, but the Court of Appeal reversed in an unpublished opinion, based on instructional error. The second trial resulted in a jury verdict and ensuing judgment that was appealed by both sides, but the Court of Appeal reversed in part and sent the case back for a new trial on some issues.
Henry Casden then filed a Sec. 170.6 challenge against Judge Terry B. Friedman, who had presided over the September 2003 trial, and the case was transferred out of Friedman’s courtroom. After further proceedings, the case was eventually assigned to Bascue, and Henry Casden filed another Sec. 170.6 challenge.
Bascue ruled that the plaintiff had utilized his only allowed Sec. 170.6 challenge.
Justice Earl Johnson Jr., writing for the Court of Appeal, said Bascue was correct according to the unambiguous language of the statute, rejecting the argument that since Henry Casden did not exercise the one challenge to which he was entitled prior to trial, he could exercise two challenges post-appeal.
“We find the language of section 170.6 to be clear and unambiguous. Each side can exercise one peremptory challenge in an action. There is one specific exception to the general rule. A successful appellant who has previously used his or her one peremptory challenge can exercise another challenge upon remand from an appellate court if the prior trial judge is assigned to conduct a new trial in the matter. Thus, the one challenge rule does not require a party to go to trial before a judge who entered a judgment against that party and was reversed on that party’s appeal. If the Legislature had intended section 170.6 to allow a successful appellant to exercise a post-appeal peremptory challenge in the first instance and then subsequently exercise another challenge, the Legislature would have said so.”
Henry Casden is represented by Hillel Chodos and Deborah Chodos. Alan Casden’s lawyers are Thomas J. Nolan, Carl Alan Roth and Stephen Haydon-Khan of Skadden, Arps, Slate, Meagher & Flom.
The case is Casden v. Superior Court (Casden), 06 S.O.S. 2998.
Copyright 2006, Metropolitan News Company