“A judge, court commissioner, or referee of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” (Code Civ. Proc., § 170.6(a)(1).) A motion trying to achieve this goal is typically known as a “170.6 motion”.
A judge shall be disqualified if any one or more of the following are true:
(Code Civ. Proc., § 170.1; Mahnke v. Super. Ct. (2009) 180 Cal.App.4th 565, 577; Gai v. City of Selma (1998) 68 Cal.App.4th 213, 230-233.)
“It shall not be grounds for disqualification that the judge:
(Code Civ. Proc., § 170.2; People v. Super. Ct. (Mudge) (1997) 54 Cal.App.4th 407; United Farm Workers of America v. Super. Ct. (1985) 170 Cal.App.3d 97, 103.)
“A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.” (Code Civ. Proc., § 170.6(a)(2); Barrett v. Super. Ct. (1999) 77 Cal.App.4th 1, 4.)
“As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.” (Stephens v. Super. Ct. (2002) 96 Cal.App.4th 54, 61-62.) In other words, section 170.6 “permits a party to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body” (Barrett v. Super. Ct. (1999) 77 Cal.App.4th 1, 4 (citations omitted).)
“[N]o party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section.” (Code Civ. Proc., § 170.6(a)(4); Birts v. Super. Ct. (2018) 22 Cal.App.5th 53, 58.)
The following outlines the conditions to which a timely and proper motion must be submitted:
Form
Any affidavit filed pursuant to Section 170.6 shall be presented substantially in the same form. (Code Civ. Proc., § 170.6(a)(6).)
Timeline
“If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date.” (Code Civ. Proc., § 170.6(a)(2); People v. Super. Ct. (1993) 4 Cal.4th 1164, 1180-1184.)
“If directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.” (Code Civ. Proc., § 170.6(a)(2).)
“If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance.” (Code Civ. Proc., § 170.6(a)(2); Bambula v. Super. Ct. (1985) 174 Cal.App.3rd 653, 656.)
A peremptory challenge may not be made when a subsequent proceeding is a “continuation” of an earlier action. (Jacobs v. Super. Ct. In and For Los Angeles County (1959) 53 Cal.2d 187, 190.) “Although [section 170.6] does not expressly so provide, it follows that, since the [peremptory challenge] must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.” (Id.) The rule is designed to prevent forum shopping. (Id. at 191.)
“A party to a civil action making that motion under [section 170.6] shall serve notice on all parties no later than five days after making the motion.” (Code Civ. Proc., § 170.6(a)(3).)
If the motion is timely and filed in proper form, the trial court must accept it without further inquiry, and the disqualification is effective immediately. (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1360.)
“In no event shall a judge, court commissioner, or referee entertain the motion if it is made after the drawing of the name of the first juror, or if there is no jury, after the making of an opening statement by counsel for plaintiff, or if there is no opening statement by counsel for plaintiff, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced.” (Code Civ. Proc., § 170.6(a)(2).)
Although the Opposition papers challenge the moving declarations (see Opp. Brf. p. 9 and Plff’s AUMF 89 et seq.), the Defendants in the present case all affirmed in their depositions that the factual content in their moving declarations was true. (See Opp. Ex. 2, pp. 61, 71, 120 to 125; Opp. Ex. 6, pp. 12-14; Opp. Ex. 3 pp. 135 – 142, 158-59, 185-90.) In short, there is no similar record of prior, material, false exculpatory statements to create a triable issue on credibility.
Dec 21, 2020
Orange County, CA
Plaintiffs have not filed an opposition and do not challenge these assertions. Defense counsel Brian K. Williams has attested that all Plaintiffs were served with Special Interrogatories, Set One on July 28, 2020 and that no responses were received as of November 1, 2020 despite Plaintiffs being granted extensions. Thus, Defendant’s motion is granted as to Plaintiff Ford.
Dec 21, 2020
Personal Injury/ Tort
Fraud
Los Angeles County, CA
Motion to Challenge an Application for a Determination of a Good Faith Settlement Having considered the moving, opposing, and reply papers, the Court rules as follows. BACKGROUND On February 6, 2019, Plaintiffs Matthew Lewinson and Allison Lewinson (collectively “Plaintiffs”) filed a complaint against Defendants Kamyar Cohanshohet, M.D. (“Defendant Cohanshohet”) and Ayn Pharmacy Corp dba The Prescription Center (“Defendant Pharmacy”).
Dec 21, 2020
Personal Injury/ Tort
Medical Malpractice
Los Angeles County, CA
Introduction This Petition involves a challenge to the Respondent's plan to demolish and rebuild Del Mar Heights Elementary School, located at 13555 Boquita Drive in Del Mar ("Rebuild Project"). The reconfigured school will not have a larger student population, but will have a slightly expanded footprint and will include a slightly reduced open space area. The School is located within the Coastal Zone and is immediately adjacent to the Torrey Pines State Reserve Extension.
Dec 21, 2020
San Diego County, CA
The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Since it plays such a large role in this demurrer, it is important to appreciate the reach, and the limits, of judicial notice on demurrer.
Dec 21, 2020
Orange County, CA
It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§422.10, 589.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.)
Dec 21, 2020
Los Angeles County, CA
AHM filed its Answer on 9/17/19, which did not challenge the failure to join Alltizer. AHM did not demurrer to the Complaint based on a failure to join Alltizer. The Retail Installment Sale Contract (RISC) is attached to Mr. Dowling’s declaration, and indicates Alltizer is the buyer, and Plaintiff is the co- buyer. (Dec.Dowling ¶5, Ex. “A” - ex. “2”.) Although Mr.
Dec 21, 2020
Riverside County, CA
It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§422.10, 589.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.)
Dec 21, 2020
Los Angeles County, CA
On February 6, 2019, over a month prior to the expiration of the deadline to file a writ petition to challenge the A-Brite Decision, SCIF and the Commissioner entered into a settlement agreement. (Settlement Agreement). (FAP, ¶8, Exh. B.) In the Settlement Agreement, SCIF agreed not to pursue a writ petition to challenge the A-Brite Decision. The Commissioner then issued an order rescinding the “precedential” designation from the A-Brite Decision. (FAP, ¶57.)
Dec 18, 2020
Sacramento County, CA
On February 6, 2019, over a month prior to the expiration of the deadline to file a writ petition to challenge the A-Brite Decision, SCIF and the Commissioner entered into a settlement agreement. (Settlement Agreement). (FAP, UB, Exh. B.) In the Settlement Agreement, SCIF agreed not to pursue a writ petition to challenge the A-Brite Decision. The Commissioner then issued an order rescinding the "precedential" designation from the A-Brite Decision. (FAP, 1157.)
Dec 18, 2020
Sacramento County, CA
This is not a challenge to the penalty imposed pursuant to the stipulated settlement/Accusation. Petitioner instead contends that Respondent’s action of displaying what he contends to be private information to the public is a violation of his rights, and there is no evidence before the Court that this is an issue that was covered by the stipulated settlement. On the fact of the petition, Government Code section 11523 does not apply to Petitioner’s claims. B.
Dec 18, 2020
Sacramento County, CA
This is not a challenge to the penalty imposed pursuant to the stipulated settlement/Accusation. Petitioner instead contends that Respondent's action of displaying what he contends to be private information to the public is a violation of his rights, and there is no evidence before the Court that this is an issue that was covered by the stipulated settlement. On the fact of the petition, Govemment Code section 11523 does not apply to Petitioner's claims. B.
Dec 18, 2020
Sacramento County, CA
Chicago Title raises a legal challenge to this cause of action pled in the Kim Funding Amended Complaint and the Fenley and Yu complaints. Relying on the interpretation of Penal Code § 496(c) in Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1135 [259 Cal.Rptr.3d 466, Chicago Title argues that Penal Code § 496(c) does not apply to instances in which the money is alleged taken by "fraud, misrepresentation, conversion, or some other type of theft that does not involve 'stolen' property."
Dec 18, 2020
Personal Injury/ Tort
Fraud
San Diego County, CA
Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1109 [“California courts have recognized that a court is the appropriate entity to resolve challenges to a delegation clause nested in an arbitration clause when a specific contract challenge is made to the delegation clause.” (bold emphasis added)].) Here, however, Plaintiff does not challenge only the delegation clause as unconscionable; rather, he challenges the entire 2014 agreement as unconscionable.
Dec 18, 2020
Employment
Other Employment
Los Angeles County, CA
Motion to Challenge Lien Priority Determination and to Confirm Senior Priority of its Lien filed on behalf of Defendant JPMorgan Chase Bank, N.A. is CONTINUED to December 18, 2020, for hearing on a determination concerning the equities with respect to the matter.
Dec 18, 2020
Los Angeles County, CA
The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452.
Dec 18, 2020
Orange County, CA
If the party's challenge is directed to the agreement as a whole—even if it applies equally to the delegation clause—the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable.
Dec 18, 2020
Business
Intellectual Property
Los Angeles County, CA
Chicago Title raises a legal challenge to this cause of action pled in the Kim Funding Amended Complaint and the Fenley and Yu complaints. Relying on the interpretation of Penal Code § 496(c) in Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1135 [259 Cal.Rptr.3d 466, Chicago Title argues that Penal Code § 496(c) does not apply to instances in which the money is alleged taken by "fraud, misrepresentation, conversion, or some other type of theft that does not involve 'stolen' property."
Dec 18, 2020
Personal Injury/ Tort
Fraud
San Diego County, CA
The court requests Respondent address its position Petitioner may proceed with his challenge to civil penalties. CONCLUSION Based on the foregoing, the demurrer is sustained with 10 days leave to amend as to paragraph 40, subparts (a) and (b) only. The demurrer is overruled as to paragraph 40, subpart (f). The demurrer is sustained without leave to amend as to paragraph 40, subdivisions (b), (c), (d) and (e). The motion to waive bond is denied.
Dec 18, 2020
Administrative
Writ
Los Angeles County, CA
The parties are reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleading (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”).
Dec 18, 2020
Personal Injury/ Tort
other
Los Angeles County, CA
Trial is not set to begin until August 2021, and the proposed Cross-Defendants have sufficient time to propound discovery and challenge the proposed Cross-Complaint by demurrer, motion for judgment on the pleadings, or other applicable procedures. Additionally, the pandemic has caused a significant buildup of cases set for trial in 2021, and the court currently cannot assure the parties their trial will commence as scheduled. As a result, the trial may be continued again.
Dec 18, 2020
Collections
Promisory Note
Los Angeles County, CA
Chicago Title raises a legal challenge to this cause of action pled in the Kim Funding Amended Complaint and the Fenley and Yu complaints. Relying on the interpretation of Penal Code § 496(c) in Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1135 [259 Cal.Rptr.3d 466, Chicago Title argues that Penal Code § 496(c) does not apply to instances in which the money is alleged taken by "fraud, misrepresentation, conversion, or some other type of theft that does not involve 'stolen' property."
Dec 18, 2020
Personal Injury/ Tort
Fraud
San Diego County, CA
(a)(4)), including ensuring compliance with a peremptory writ of mandate. (Carmel–by–the–Sea, supra, 137 Cal.App.3d at p. 971, 187 Cal.Rptr. 379; County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 205, 139 Cal.Rptr. 396.) ¶ A peremptory writ of mandate in a CEQA proceeding should order the agency to file a return by a date certain informing the court of the agency's actions in compliance with the writ. (Endangered Habitats League, Inc. v.
Dec 18, 2020
El Dorado County, CA
Chicago Title raises a legal challenge to this cause of action pled in the Kim Funding Amended Complaint and the Fenley and Yu complaints. Relying on the interpretation of Penal Code § 496(c) in Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1135 [259 Cal.Rptr.3d 466, Chicago Title argues that Penal Code § 496(c) does not apply to instances in which the money is alleged taken by "fraud, misrepresentation, conversion, or some other type of theft that does not involve 'stolen' property."
Dec 18, 2020
Personal Injury/ Tort
Fraud
San Diego County, CA
Chicago Title raises a legal challenge to this cause of action pled in the Kim Funding Amended Complaint and the Fenley and Yu complaints. Relying on the interpretation of Penal Code § 496(c) in Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1135 [259 Cal.Rptr.3d 466, Chicago Title argues that Penal Code § 496(c) does not apply to instances in which the money is alleged taken by "fraud, misrepresentation, conversion, or some other type of theft that does not involve 'stolen' property."
Dec 18, 2020
Personal Injury/ Tort
Fraud
San Diego County, CA
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