KBC Capital v. Superior Court CA4/1

INTRODUCTION

This is the second time this case comes to us for appellate review. The first time Peter Starflinger prevailed in his appeal from the original judgment. He claimed the trial court erred when it denied his request for a bench trial on his request for specific performance of his contract with KBC Capital LLC (KBC), the remaining defendant in this action. We agreed with Starflinger that “[t]he trial court erred in failing to reach the merits of Starflinger’s claim for specific performance. So we remanded for “further proceedings.” Shortly after we rendered our opinion, Starflinger filed a peremptory challenge to the judge who had presided over the underlying proceedings, the Honorable Richard S. Whitney. Judge Whitney granted Starflinger’s challenge and the case was reassigned. KBC has now petitioned for writ of mandate, contending the peremptory challenge should not have been granted.

Section 170.6, subdivision (a)(2), of the Code of Civil Procedure1 allows a peremptory challenge following reversal on appeal of a trial court’s final judgment, but a challenge is allowed only “if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.”…