“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).)
To avoid confusion, the Court instructs Plaintiff to file an entirely new request for entry of default, rather than rely on a letter to try and challenge the outcome of the earlier request for entry of default. The court hereby sets an OSC re dismissal for October 5, 2017 at 8:30 am. Trial is set for December 5, 2017 at 8:30 am. Plaintiff to give notice.
Jun 05, 2017
Elaine Lu or Yolanda Orozco
Los Angeles County, CA
Further, by failing to oppose the motion, defendants have failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.
Jun 05, 2017
Contract
Breach
San Diego County, CA
Further, by failing to oppose the motion, defendants have failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.
Jun 05, 2017
Contract
Breach
San Diego County, CA
A defendant who seeks a summary judgment must define all of the theories of liability alleged in the complaint and challenge each factually; if the defendant fails to do so, he or she does not carry the initial burden of showing the nonexistence of a triable issue of material fact. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165; Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714.)
Jun 05, 2017
Personal Injury/ Tort
other
Fresno County, CA
Further, by failing to oppose the motion, defendants have failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.
Jun 05, 2017
Contract
Breach
San Diego County, CA
Further, by failing to oppose the motion, plaintiffs have failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.
Jun 05, 2017
Contract
Breach
San Diego County, CA
Further, by failing to oppose the motion, defendants have failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85.
Jun 05, 2017
Contract
Breach
San Diego County, CA
Demurrer of Defendant North Orange County Community College District to Plaintiff’s Complaint: The only remaining demurrer challenge presented is that targeting the first cause of action for breach of contract of the Complaint as against moving defendant North Orange County Community College District (NOCCCD or District). Thus far, the court has sustained demurrer challenges in this and the related Herrera case, with leave to amend. A similar ruling will apply here.
Jun 02, 2017
Orange County, CA
Therefore, the ruling here is to sustain the demurrer to the 1st cause of action of the First Amended Complaint with 30 days leave to amend as court chose to do in response to similar demurrer challenge argument in this and the related Herrera action. Moving party requests that court take judicial notice of the Complaint filed, herein, pursuant to Evidence Code §§ 452 (d)&(h), 453, are granted.
Jun 02, 2017
Orange County, CA
With regard to the park in-lieu fees, the City seeks a peremptory writ of mandate directing the District to conduct an adequate search of its records, identify responsive records, and provide responsive records to the City or affirmatively state that no responsive records exist.
Jun 02, 2017
Sacramento County, CA
With regard to the park in-lieu fees, the City seeks a peremptory writ of mandate directing the District to conduct an adequate search of its records, identify responsive records, and provide responsive records to the City or affirmatively state that no responsive records exist.
Jun 02, 2017
Sacramento County, CA
Notice Of Motion And Motion For Terminating Sanctions And Monetary Sanction In The Amount Of $1,980 SET FOR HEARING ON FRIDAY, JUNE 2, 2017, LINE 4 Motion For Terminating Sanctions And Monetary Sanction In The Amount Of $1,980 Hearing required unless all issues raised by the motion have been resolved. If defendant JP Morgan Chase Bank b...
Jun 02, 2017
San Francisco County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego 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.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)
Jun 02, 2017
Los Angeles County, CA
Liberally construed, the third amended complaint alleged Chase Bank engaged in a practice of making TPP's that did not comply with HAMP guidelines and the United States Department of the Treasury directives; made misrepresentations regarding a borrower's right and ability to challenge the bank's calculation of the NPV; made misrepresentations about pending foreclosure sales; and wrongfully had trustee's sales conducted when the borrower was in compliance with a TPP.
Jun 02, 2017
El Dorado County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
Petitioner/Plaintiff Mark Fudge's Motion to Amend, Correct, and Challenge Administrative Record Certified by Respondent City of Laguna Beach Petitioner Mark Fudge’s Motion to Amend, Correct and Challenge the Administrative Record is GRANTED in part and CONTINUED in part. Real Party in Interest’s request for judicial notice of Exhs. 1-3, pursuant to Evid. Code, § 452(d) is GRANTED.
Jun 02, 2017
Orange County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
This also made it impossible for Plaintiffs to properly challenge the billing entries. In their supplemental briefs, Defendants counsel have now submitted extensive declarations under penalty of perjury establishing to the Court’s satisfaction that the work was done by independent attorneys.
Jun 02, 2017
Orange County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
Further, by failing to oppose the motion, plaintiff has failed to preserve for appeal a challenge to the granting of the motion. In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13; see also Duarte v. Chino Comm. Hospital (1999) 72 Cal.App.4th 849, 856; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85. This ruling disposes of the case as to Dr. Shih.
Jun 02, 2017
Personal Injury/ Tort
Medical Malpractice
San Diego County, CA
A defendant may challenge the venue by affidavits dealing with the type or nature of the action, and the plaintiff may bolster his or her choice of venue with counteraffidavits consistent with the complaint's theory of the type of action but amplifying the allegations relied upon for venue. [Citation.]" ((Lebastchi v. Superior Court (1995) 33 Cal.App.4th 1465, 1469.)
Jun 01, 2017
Ventura County, CA
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