“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).)
Legal Standard Demurrer Legal Standard 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.) No other extrinsic evidence can be considered. A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)
Oct 05, 2020
Employment
Wrongful Term
Los Angeles County, CA
Homeowners alleging wrongful foreclosure lack standing to challenge an assignment that is merely voidable by one of the parties to the assignment, in contrast to an assignment that is in fact void. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 936.) Accordingly, Plaintiffs may not attempt to quiet title as against Defendants.
Oct 05, 2020
Real Property
Foreclosure
Los Angeles County, CA
There is no further evidence that Defendants presently challenge Plaintiff’s denial of that claim or initiated any suit against Plaintiff. Defendants have not even contested this action, despite being served. Plaintiff has not cited one case, and this court has yet to find one case, that allows an insurer to obtain declaratory relief at this stage. B.
Oct 05, 2020
Los Angeles County, CA
Petitioner appealed the fine, a hearing was held, the hearing examiner upheld the fine, and Petitioner filed this action to challenge the decision upholding the fine. On January 13, 2020, before the City had appeared, an amended petition was filed. The amended petition is captioned "AMENDED WRIT OF MANDUMADUS: REQUEST FOR AN INJUNCTION. REQUEST FOR REMOVAL OF RECORDS/LIENS/FINES."
Oct 02, 2020
Sacramento County, CA
Presumably, then, the purpose of this action is to challenge that decision. 1 The City cites section 8.01.100E.
Oct 02, 2020
Sacramento County, CA
The City is awarded its costs on appeal in connection with White’s anti-SLAPP motion and her challenge to the attorney fee award.”
Oct 02, 2020
Los Angeles County, CA
Legal Standard Demurrer Standard 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.) No other extrinsic evidence can be considered. A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)
Oct 02, 2020
Los Angeles County, CA
A cause of action "implicitly integrated" with a challenge to the foreclosure sale fails unless the trustor can allege and establish a valid tender. Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 579. In this case, the fourth cause of action in the complaint is "implicitly integrated" with a challenge to the foreclosure sale.
Oct 02, 2020
Real Property
other
San Diego County, CA
There, the defendant brought a “Motion to Challenge Judgment” (id. at p. 700, 63 Cal.Rptr.3d 224). There were “hearings, supplemental submissions, and a motion for reconsideration.” (Id. at p. 701, 63 Cal.Rptr.3d 224.) The only issue was whether the French judgment was final, conclusive, and enforceable, a matter we determined as a matter of law.
Oct 02, 2020
El Dorado County, CA
Although debtor claims he did not get a fair opportunity in Colorado to either challenge the claims or appeal the adverse decision, the evidence provided in support of those contentions is woefully insufficient to permit this Court to find that Colorado lacked fundamental jurisdiction over debtor. There is also no basis to find that the judgment was obtained by extrinsic fraud.
Oct 02, 2020
Orange County, CA
“[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment … even if he later obtains actual knowledge of it because ‘[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.’
Oct 02, 2020
Orange County, CA
Plaintiffs dispute this point with Paul Herbert’s declaration, but do not challenge Covarrubias’ assertion that he did not see the K-rail damage the flatbed. (Plaintiff’s Sep. Stmt., No. 11.) Rather, Plaintiffs claim that Herbert’s declaration shows a K-rail could have damaged the flatbed. (Ibid.) a.
Oct 02, 2020
Riverside County, CA
Demurrer 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.)
Oct 02, 2020
Los Angeles County, CA
Defendants did not challenge the amount of costs sought in the amended memorandum of costs—$833.06—which appears to have been reasonably incurred. Therefore, plaintiff may be entitled to an award, including attorney fees and costs of $9,506.10. The court reserves the right to modify this tentative ruling based on how plaintiff chooses to explain and proceed regarding the amended motion. Plaintiff’s request for the court to impose a deadline for payment is denied.
Oct 02, 2020
Contract
Breach
Los Angeles County, CA
With respect to a challenge to service, the burden is on plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Mihlon v. Superior Court (1985, 2nd Dist.) 169 Cal.App.3d 703, 710; Ziller Electronics Lab GmbH v. Superior Court (1988, 2nd Dist.) 206 Cal.App.3d 1222, 1232-1233. Plaintiff must make this showing based on admissible evidence. Ziller Electronics, at 1233; see also Evangelize China Fellowship, Inc. v.
Oct 02, 2020
Collections
Promisory Note
Los Angeles County, CA
Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1176 (also stating that “[t]he defendant cannot simply challenge the plaintiff to prove his case by opposition”); see also Code Civ. Proc. § 437c, subd.(b)(1) (stating that “[t]he motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken”); see also Gaggero v.
Oct 01, 2020
Santa Clara County, CA
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 C3d 311, 318.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881.) The Court does not consider the facts outside the four corners of the Cross-Complaint, Guerra’s declaration, or the untimely request for judicial notice.
Oct 01, 2020
Orange County, CA
Defendants in opposition challenge the lack of any authority in support of the requested relief. Although Plaintiff moves to “dismiss” attorney Chaffin, Plaintiff actually seeks to disqualify attorney Chaffin from appearing on the action. The basis of the requested relief lacks articulated support under the standard for disqualification. As a threshold issue, Plaintiff fails to raise a basis of standing to challenge The Wolf Firm’s choice of its own representation.
Oct 01, 2020
Real Property
Foreclosure
Los Angeles County, CA
[T]he text is ‘virtually impenetrable’ and ‘challenge[s] the limits of legibility.’” (Id., at p. 128.) The court emphasized that “[t]he substance of the agreement is similarly opaque. The sentences are complex, filled with statutory references and legal jargon.” (Id.) Plaintiffs contend that the arbitration provision is in “tiny font” and “buried toward the end of Section XVIII” of the lease agreement, rendering the document nearly illegible. (Opp., pg. 11.)
Oct 01, 2020
Personal Injury/ Tort
other
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).)
Oct 01, 2020
Los Angeles County, CA
Perhaps Plaintiff is concerned Defendants will challenge its right to foreclose, or perhaps Plaintiff is concerned that the fact that the original DOT was never recorded will cause issues with the foreclosure procedure or make it difficult to find a purchaser. Even so, these possibilities do not establish there is a present, concrete dispute between the parties. Affidavit as to Lost Document. Plaintiff submits this document to evidence that the DOT was lost and never recorded.
Oct 01, 2020
San Joaquin County, CA
Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:597. If a nonparty disobeys a depo subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. CCP §2025.480(b); see Unzipped Apparel, LLC v. Bader (2007) 156 Cal. App. 4th 123, 127.
Oct 01, 2020
Los Angeles County, CA
A challenge to the foreclosure can only occur against non-bona fide purchasers. (6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279, 1286 ["Thus, once a deed reciting that all legal requirements have been satisfied has been transferred to a buyer at a foreclosure sale, the sale can be successfully attacked on the grounds of procedural irregularity only if the buyer is not a bona fide purchaser”].)
Oct 01, 2020
Real Property
other
Los Angeles County, CA
The Court notes that neither of the Firescus challenges the physical descriptions given of them, nor do the Firescus challenge the fact that their business is located at the Arminta Address. Furthermore, neither Mr. Firescu nor Mrs. Firescu offer any evidence that undermines any aspect of Mr. Abramyan’s testimony. Mr. and Mrs. Firescu do not offer an explanation for why they could not have been at the Arminta Address on October 21, 2019, at 9:38 a.m., nor do Mr. and Mrs.
Oct 01, 2020
Employment
Other Employment
Los Angeles County, CA
On page 2, it states that the Settlement Administrator will “determine the validity of my challenge” and does not indicate that the Court reserves jurisdiction to resolve any individual payment disputes. As to the Proposed Order 14. The proposed order is to be revised consistent with the issues addressed above. 15. The Settlement Agreement, any amendment(s) thereto, and exact copies of the completed exhibits thereto must be attached to the proposed order as exhibits.
Oct 01, 2020
Orange County, CA
Please wait a moment while we load this page.
