“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).)
The question addressed in that case was whether a taxpayer may challenge assessed real property taxes and penalties in an action for declaratory relief and avoid the limited remedies and procedures provided by California Constitution, Article XIII, section 32.
Jan 14, 2021
Contra Costa County, CA
DISCUSSION 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, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
Jan 14, 2021
Los Angeles County, CA
FAULTY 2011 ASSIGNMENT — FIRST, THIRD, FOURTH, FIFTH, AND TENTH CAUSES OF ACTION Defendants challenge Plaintiff’s first, third, fourth, fifth, and tenth causes of action (respectively for wrongful foreclosure, fraud, cancellation of instruments, slander of title, and quiet title), which are grounded on what Plaintiff characterizes as a faulty 2011 assignment of the deed of trust from MERS to BNYM based on an alleged prior sale of the debt from Countrywide to third-party CWALT, Inc. (Complaint ¶ 29.)
Jan 14, 2021
Real Property
other
Los Angeles County, CA
Defendant asserts that given the overlapping time between Plaintiff’s claim of events in 2013 and the narrow scope of the subpoena, which only seeks records from 2013, these medical records are highly relevant and necessary in order to analyze, understand, and challenge the full extent of Plaintiff’s claimed damages. Defendant contends that the subpoena is aimed at obtaining Plaintiff’s physical and mental state in the year in which she claims she was sexually harassed and assaulted by Defendant.
Jan 14, 2021
Employment
Wrongful Term
Los Angeles County, CA
Therefore, Defendants have already had an opportunity to respond and challenge the conclusion of this survey –.] DECINE to rule on remaining objections. GRANT the motion as to the first (Public Continuing Nuisance) and fourth (declaratory relief) causes of action.
Jan 14, 2021
Riverside County, CA
Ghidotti argues that this cause of action fails because (1) “California law does not recognize a challenge to the title by an owner of a merely equitable interest in the property”; and (2) Plaintiff failed to state facts to establish the elements of a quiet title cause of action. (Dem. at p.7.). Ghidotti also argues that a borrower may not quiet title against a secured lender without first paying the outstanding debt the deed of trust is based on. (Dem. at pp. 6-7.) This Court agrees with Ghidotti.
Jan 14, 2021
San Joaquin County, CA
“The essential position advanced in [the developer’s] alternative motions to dismiss and for judgment on the pleadings was that Kaatz's claims were based on a challenge to the validity of the [city’s agreement (land disposition agreement or “LDA”) with the developer for the sale/purchase of the subject property], executed in May 1998.
Jan 14, 2021
Santa Clara County, CA
It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. 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, 318; Donabedian, supra, 116 Cal.App.4th at 994.)
Jan 14, 2021
Los Angeles County, CA
The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).)
Jan 14, 2021
Real Property
other
Los Angeles County, CA
Although somewhat unclear, Petitioner apparently does not challenge its own score for this part of the application, only challenging LBLC’s higher score. The Guidelines state that, in the phase 3 third-party review, the applications would be given up to 100 points for “Plans, Renderings, Location, and Other Diagrams.”
Jan 14, 2021
Administrative
Writ
Los Angeles County, CA
As to the complete and accepted doctrine, Arizona Pipeline’s argument “[t]here can be no question that the Arizona Pipeline’s work…was accepted by the Water Department and the County” (Motion, p. 8.) is outside the pleadings...The opposition is correct that the determination of whether the condition of the roadway was completed and accepted and the alleged defect patent or latent cannot be decided on a challenge to the pleadings.
Jan 14, 2021
Riverside County, CA
Code section 21167(c), an action to challenge the certification of Final SEIR or any other agency action under CEQA shall be commenced within 30 days of the filing of the Notice of Determination (“NOD”). Opp. at 8. The 30-day statute of limitations in CEQA is a mandatory deadline and that no extensions of time are applicable. See, e.g., Alliance for the Protection of the Auburn Community Environment v. Placer, (2013) 215 Cal.App.4th 25; Nacimiento Regional Water Management Committee v.
Jan 14, 2021
Administrative
Writ
Los Angeles County, CA
While his prior demurrer to the FAC may have been sustained, Defendant has to do more to challenge the SAC than simply assert that it does not comply with the Court’s ruling on the first demurrer. Instead, Defendant must demonstrate why he is entitled to judgment in his favor based on the allegations of the SAC, whether by reference to its pleading defects or otherwise. His motion simply does not do so. As a result, Defendant’s challenge to Plaintiffs’ SAC must be rejected. C.
Jan 14, 2021
Real Property
Landlord Tenant
Los Angeles County, CA
On September 11, 2020, non-party The People of the State of California, acting by and through the Department of Transportation filed a motion to challenge good faith of settlement. On September 25, 2020, the Court ordered this case related to 20STCV30782 Mchantaf, et al v. State of California, et al. On December 24, 2020, Defendants filed their opposition to the motion. On January 5, 2021, non-party The People of the State of California filed their reply to the motion.
Jan 14, 2021
Los Angeles County, CA
Discussion As noted above, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) Defendant Lone Oak seeks to strike paragraphs 24 and 25 of the Complaint regarding Defendants’ alleged malicious, oppressive, fraudulent conduct justifying an award of punitive damages. (Mot. to Strike, p. 3:17-22.)
Jan 14, 2021
Los Angeles County, CA
Here, Plaintiff does not challenge that if the agreement is enforceable, the claims are within the scope of the arbitration agreement. A. Arbitration Agreement Defendants proved the existence of an arbitration agreement with Plaintiff.
Jan 13, 2021
Employment
Wrongful Term
Los Angeles County, CA
Based on the above, the Demurrer to the Sixth Cause of Action is SUSTAINED; however, as this is the first challenge to the Complaint, leave to amend is granted. Moving Party to give notice.
Jan 13, 2021
Orange County, CA
While Plaintiffs argue that the motion to strike as to the unlawful allegations are better suited for a demurrer, Defendant Denver does not challenge the sufficiency of the UCL cause of action. Rather, Denver argues that the inclusion of the unlawful allegations are improper absent a reference to a specific law violated. The Court agrees. Therefore, the motion to strike is GRANTED as items nos. 19- 30 and 32 with leave to amend.
Jan 13, 2021
Los Angeles County, CA
.: 19STCV46118 Hearing Date: January 13, 2021 [Tentative] order RE: motion to challenge good faith settlement BACKGROUND Plaintiffs Rodolfo Romero and Bertha Lina Romero (“Plaintiffs”) filed this action after they were hit by a vehicle driven by Isabella Rose Calhoun (“Calhoun”). Plaintiffs allege that they were eating outside a restaurant owned and operated by Defendants Kimco Realty Corporation and Panda Restaurant Group, Inc.
Jan 13, 2021
Personal Injury/ Tort
other
Los Angeles County, CA
Plaintiffs filed a peremptory challenge on July 16, 2020, thereby leading to reassignment to Department 49 on July 22, 2020. RULING: Moot/Off-Calendar Defendant Intelligrated Sytems, LLC move for a protective order on the methods employed for certain depositions of expert witnesses, and to limit the conduct of Plaintiffs’ counsel, Joseph Davis.
Jan 13, 2021
Los Angeles County, CA
However, Titanium is using an improper motion to challenge the sufficiency of the allegations against it in the SAC. “[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.)
Jan 13, 2021
Los Angeles County, CA
The Motion does not argue that the service address was improper or raise any other challenge to the propriety of service. The papers were left at the mailbox on January 21, 2020 and mailed there on the same date. (Proof of Service, filed 2/7/20, ¶5.) If the party’s failure to respond to the action is the result of inexcusable neglect, relief is not available under Code of Civil Procedure section 473, subdivision (b). (Martin Potts & Associates, Inc. v.
Jan 13, 2021
Los Angeles County, CA
As noted above, 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, supra, 39 Cal 3d at p.318.) However, the “face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference; or in a previous superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)
Jan 13, 2021
Real Property
other
Los Angeles County, CA
First, the Court notes that moving party moved to challenge the proposed order dated October 26, 2020, rather than the actual order which was dated and entered on November 3, 2020. Plaintiff also noted this error. However, the Court treats this error as de minimis and will treat this as a motion challenging the actual order entered on November 3, 2020.
Jan 13, 2021
Other
Intellectual Property
Los Angeles County, CA
Jackson (2010) 561 U.S. 63, “a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate.” (Id. at 70-71). Based on all of the above, the Motion to Compel Arbitration is GRANTED. Lastly, this action shall be stayed, pending the completion of arbitration. (9 U.S.C. §3 and C.C.P. §1281.4). Moving party to give notice.
Jan 13, 2021
Orange County, CA
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