Birts v. Superior Court, No. A152923 (D1d3 Apr. 11, 2018)
A criminal case, but involving civil procedure.
Trial judge in a criminal case tubed the prosecution by granting a bunch of motions in limine. So the DA dismissed without prejudice. He then refiled the case the next day. And when the case made it back to the original trial judge, the DA filed a peremptory strike under Code of Civil Procedure § 170.6. The trial court granted the strike. Noting it presented a hairy issue, however, the court continued the trial so Defendant would take a writ. Which he did.
The Court of Appeal relies on the “continuation rule” to hold that the strike in the second case was untimely. When a case is dismissed and a virtually identical case with the same parties refiled, the second case can be treated as a continuance of the first for § 170.6 purposes. Otherwise you make a giant loophole in the rule. Given the short clock that generally applies to the time to make a § 170.6 strike, that will preclude an exercise of a strike in the second case in most ordinary circumstances. Like here.
Writ granted.
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