Order: ELAINE CHIU VS. SHI HYUN(BO) KIM et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Nov-24-2009 9:33 am

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Case Number: CGC-05-443076
Filing Date: Nov-24-2009 9:32
Juke Box: 001 Image: 02684847
ORDER

ELAINE CHIU VS. SHI HYUN(BO) KIM et al

001002684847

Instructions:
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rior Court of California
Seay of San Francisco

Nov 2 4 2009
GORDON PARK-LI, Clerk
fa tl

ey Beni Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ELAINE CHIU, Case No. CGC-05-443076

ORDER DENYING PEREMPTORY
CHALLENGE (CCP § 170.6)

Plaintiff,
v.

SHI HYUN (BO) KIM, individually and dba B.K.
SPORTSWEAR and DOES 1-29, invlusive,

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Defendants. )
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The Court has received and reviewed Plaintiff ELAINE CHIU’s Motion to Disqualify the
Judge Pursuant to C.C.P. § 170.6. The Court hereby DENIES Plaintiff ELAINE CHIU’s Motion to
Disqualify as untimely.

Pursuant to C.C.P. § 170.6, a peremptory challenge “may be made following reversal on
appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if
the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” The post-
appeal right of peremptory challenge is triggered when the trial judge in the prior proceeding is
assigned to conduct a new trial on the matter. (See Paterno v. Super. Ct. (2004) 123 Cal.App.4th

548.)The remittitur issued on September 2, 2009. The remittitur affirmed the trial court’s
judgment. The Court received Plaintiff's Motion to Disqualify the Hon. Tomar Mason, requesting
that Judge Mason be disqualified from trying any post-trial matter in this action, on November 9,
2009.

Here, the trial judge has not been assigned to conduct a new trial on any matter. In fact, the
Court of Appeal affirmed the trial court’s judgment and awarded costs on appeal to Respondent
KIM. (Chiu v. Kim (A119756).) Since the peremptory challenge must be made before the trial has
commenced, it cannot be entertained as to subsequent hearings which are part or a continuation of
the original proceedings unless the trial judge in the prior proceeding is assigned to conduct a new
trial on the matter pursuant to California Code of Civil Procedure section 170.6, subdivision (2).
(See Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190 [articulating the “continuity of the
proceedings” rule]; See also Daveon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1369
(dis. opn. of King, J.).)

As such, Plaintiff ELAINE CHIU’s Motion to Disqualify the Judge Pursuant to C.C.P. §
170.6 is DENIED.

IT IS SO ORDERED.

Dated: 11? 3 0 7

Alames 3. McBride, Presiding Judge
| JUDGE OF THE SUPERIOR COURT

iSuperior Court of California
County of San Francisco

ELAINE CHIU, Case Number: CGC-06-443076

Plaintiff(s)
CERTIFICATE OF MAILING
vs. (CCP 1013a (4) )

SHI HYUN (BO) KIM, individually and dba B.K.
SPORTSWEAR and DOES 1-20, inclusive,

Defendant(s)

L, Rochelle F. Veluz, certify that I am not a party to the within action.
On November 24, 2009, I served the attached ORDER DENYING PEREMPTORY
CHALLENGE (CCP 170.6) by placing a copy thereof in a sealed envelope, addressed as

follows:
RUSSELL F. BRASSO THOMAS PACHECO
FOREMAN & BRASSO 1036 OAK GROVE ROAD, #74

930 MONTGOMERY STREET, SUITE. 600 © CONCORD, CA 94518
SAN FRANCISCO, CA 94133

and, | then placed the sealed envelopes in the outgoing mail at 400 McAllister Street, San Francisco,
CA, 94102 on the date indicated above for collection, attachment of required prepaid postage, and
mailing on that date following standard court practices.

Dated: November 24, 2009

GORDON PARK-LI, Clerk ,

By fpaorththe Ub

Rochelle F. Veluz, Deputy Olerk