Wednesday, May 31, 2006
Peremptory Challenge to Trial Judge Not Allowed on Remand for Filing of Statement of Decision—C.A.
By a MetNews Staff Writer
Where a trial court entered judgment even though a statement of decision had been requested but not prepared, and the appellate court on remand directed the trial court to prepare a statement of decision, the trial judge could not be disqualified under Code of Civil Procedure Sec. 170.6, this district’s Court of Appeal ruled yesterday.
Retired Justice J. Gary Hastings, writing for Div. Four on assignment, said the portion of Sec. 170.6 that allows for a peremptory challenge when the appellate panel has remanded for a “new trial” did not apply.
“We did not remand with directions for the trial court to conduct a new trial,” he said. “Rather, we directed the trial to court to prepare the requested statement of decision to complete the original trial” by filing the statement of decision.
The court acted on a petition by M. Alfred Karlsen, who is seeking a new trial after losing a fraud trial in a commercial dispute with Cannonball Acquisitions.
Karlsen requested a statement of decision following a bench trial before Los Angeles Superior Court Judge Irving Feffer, who directed Cannonball’s attorney to prepare it. Although Cannonball never prepared the statement, the court entered judgment in Cannonball’s favor over Karlsen’s objection.
Karlsen appealed and the appellate panel reversed with directions that the trial court prepare a statement of decision. Thereafter, Cannonball submitted a proposed statement of decision to the trial court, and Karlsen sought to disqualify Feffer under Sec. 170.6.
Feffer accepted Karlsen’s motion and sent the case to the master calendar judge, who reassigned it to Judge Michael Stern.
After Stern said he would prepare a statement of decision rather than retry the case, Karlsen asked the Court of Appeal to order a retrial before a jury. After the Court of Appeal issued an alternative writ, Stern sent the case back to Feffer.
Choosing to address the merits rather than deem the issue moot, the appellate panel said Feffer should have denied the Sec. 170.6 motion as untimely.
In light of the panel’s instructions and the language of Sec. 170.6, Hastings concluded, the trial court did not have jurisdiction to accept Karlsen’s peremptory challenge and its grant of the motion and everything thereafter was void.
Attorneys on appeal were Hillel Chodos for Karlsen and Ronald L. Gallant for Cannonball.
The case is Karlsen v. Superior Court (Cannonball Acquisitions), B186446.
Copyright 2006, Metropolitan News Company