Karlsen v. Superior Court

Opinion

HASTINGS, J.

*

We issued an alternative writ to address a problem arising from the trial court’s acceptance of a Code of Civil Procedure section 170.6 peremptory challenge filed by petitioner after remand from this court directing the trial court to prepare a statement of decision.*

1

We conclude the trial judge erred in accepting the challenge and transferring the matter to a different judge.

FACTS

The underlying action arises out of a commercial transaction between petitioner M. Alfred Karlsen, individually and as a trustee of the M. Alfred Karlsen Professional Corporation Employees’ Retirement Trust, and real party in interest Cannonball Acquisitions, a California corporation (Cannonball). Cannonball prevailed in a court trial and petitioner requested a statement of decision. The court directed that Cannonball’s counsel prepare the requested statement of decision. No statement of decision was prepared. Nevertheless, over objection of petitioner, the court entered judgment in favor of Cannonball.

[1529]

On petitioner’s appeal, we concluded the judgment had to be reversed and the matter remanded for the trial court to prepare a statement of decision pursuant to section 632 and California Rules of Court, rule 232. On May 5, 2005, we issued an opinion with the following disposition: “The judgment is reversed and the matter is remanded with directions that the trial court prepare a statement of decision in accord with section 632 and rule 232.”

After remittitur was issued, Cannonball submitted a proposed statement of decision to the trial court. In response, petitioner filed a section 170.6 peremptory challenge to the original trial judge, in the form of a motion. Real party opposed the motion arguing that the motion was “legally improper, untimely, utterly supported by any authority whatsoever and [borders] on being frivolous.” The trial court found the challenge timely “subsequent to, and in light of appeal” and transferred the case to Department 1 for reassignment. Department 1 reassigned the matter to another judge.