Jones

A defendant in a limited-jurisdiction commercial unlawful detainer case made a pretrial motion for a trial continuance and resisted a discovery protective order in order to pursue his defense that he was the victim of a governmental talcing without compensation. After rulings against him, defendant proceeded to trial before a different judge, where he again lost. Defendant appealed the judgment to the superior court appellate division. Over defendant’s objection, the judge who decided the pretrial motions against him sat on the appellate division panel and joined in the decision affirming the judgment for the plaintiff.

In a partially published opinion, the appellate division concluded that Code of Civil Procedure sections 170.1, subdivision (b) (section 170.1(b)) and 170.5, subdivision (f), did not require the judge’s disqualification from the panel because, under these sections, the pretrial proceeding heard by the judge was not the same “proceeding” that was the subject of the appeal. The opinion cited concerns of small counties in maintaining the capacity to adequately fill assignments on both limited-jurisdiction calendars and the superior court’s appellate…