Ruling So Held in Strange Peremptory Challenge of Deciding Trial Judge.
The next case occurred in the context of a rather strange procedural framework.
In Rolla v. Speidel, Case No. D05783 (4th Dist., Div. 1 Nov. 22, 2011) (unpublished), the original trial judge granted a peremptory challenge and the case was assigned to another judge. The second judge granted SLAPP motion on some causes of action, and plaintiff dismissed the remainder. Plaintiff filed a second action based on new causes of action, and it was assigned to the original judge who was “struck” via the peremptory challenge. But, wait, it gets better. Plaintiff did not file a normal peremptory challenge, opting instead to file a bias challenge that was rejected because different causes of action were involved. The defense filed a SLAPP motion to the second action, plaintiff dismissed the second before the motion could be heard, and the originally “stricken” trial court granted the defense $15,000 in attorney’s fees as the prevailing party on the SLAPP motion without really considering the merits.
Plaintiff’s appeal had mixed results.
Plaintiff didn’t win the argument that the first peremptory challenge was a continuation action which could “strike” the judge a second time around because the second action was not just a continuation of the first action. This meant the original “stricken” judge had jurisdiction to award fees.
However, here came the rub. Reversal and remand was required because the judge did not consider the merits of the SLAPP motion before awarding fees, agreeing with the analysis of Liu v. Moore, 69 Cal.App.4th 745, 750-753 (1999) that this predicate step had to be undertaken.