“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).)
Loeb has challenged and continues to challenge the validity and enforceability of the terms of the form directive. Vergara, on the other hand, contends that the form directive is valid and the agreement between the parties regarding the disposition of the embryos should be enforced.
Jan 08, 2021
Los Angeles County, CA
City now moves for summary judgment or, in the alternative, summary adjudication as follows: First Cause of Action-unreasonable search and seizure, facial and as-applied challenge, under the Fourth Amendment of the U.S. Constitution and California Constitution, Art. I, Section 13, pursuant to 42 U.S.C. § 1983; Second Cause of Action-substantive due process, facial and as-applied challenge, under the Fourteenth Amendment of the U.S. Constitution and California Constitution, Art.
Jan 08, 2021
Los Angeles 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.)
Jan 08, 2021
Employment
Wrongful Term
Los Angeles County, CA
Defendants in reply reiterate the improper service of the summons and complaint and lack of statement of damages, challenge Plaintiff’s interpretation of the Covid-19 restrictions, as assert their diligence in filing the motions. A plaintiff has the initial burden to establish valid statutory service of a summons and complaint. (Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1439-40; Floveyor Internat. v. Sup. Ct. (1997) 59 Cal.App.4th 789, 794.)
Jan 08, 2021
Personal Injury/ Tort
Fraud
Los Angeles County, CA
Plaintiff does not present any argument to establish that additional discovery is necessary to challenge the objective reasonability of Defendants’ decision to assert and continue to prosecute IMEG’s claims in the Underlying Action. Accordingly, Plaintiff’s requested discovery concerning Defendants’ belief falls outside the scope of allowable discovery for this element of his claim. (See 1-800 Contacts, supra, 107 Cal.App.4th at p. 593.)
Jan 08, 2021
Personal Injury/ Tort
other
Los Angeles County, CA
Why was he arguably atypical, and how serious a challenge would this pose to certification? Similarly, what individualized questions did Defendant think would defeat commonality? Defendant also intended to argue Plaintiff’s claims were not covered by the Automatic Renewal Law at all. Why not, and how serious a challenge would this argument pose to classwide recovery? 8.
Jan 08, 2021
Orange County, CA
But this does not appear to reflect the kind of moment in which an attorney should realize that his client has no basis to challenge an alter ego finding, and that zealous advocacy should have at that point ceased. Chu also relies on the Order of Judgment in Qi v.
Jan 08, 2021
Personal Injury/ Tort
other
Los Angeles 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.)
Jan 08, 2021
Employment
Wrongful Term
Los Angeles County, CA
On November 6, 2020, a Peremptory Challenge to Judicial Officer (Code Civ. Proc. Section 170.6) was filed as to Ralph C. Hofer, Judge, on behalf of Erik Goodrich, Cross Defendant. An opposition to Peremptory Challenge was filed on November 6, 2020, and a Reply filed on November 9, 2020.
Jan 08, 2021
Los Angeles County, CA
In Gregory in particular, the court rejected the defendants' challenge to a jury instruction based on staffing and other regulations, which the defendants alleged were too vague to provide meaningful guidance to the jury. The court held the jury could ascertain the regulations' meaning because the jury heard testimony describing how nursing homes construed and applied the standards regarding sufficient staff. (Gregory, at p. 524.)
Jan 08, 2021
Personal Injury/ Tort
other
Los Angeles County, CA
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 (i.e., no “speaking demurrers”). A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Jan 08, 2021
Personal Injury/ Tort
other
Los Angeles County, CA
Samples (1951) 104 Cal.App.2d 311, is distinguishable because it addresses the issue of partnership formation in an evidence-based context, not on a pleading challenge such as that before the court on this demurrer. The other issues Defendants raise, including whether a partnership was formed and whether the partnership or Gallos Brothers, LLC owns Civico 1845, are factual issues not properly resolved on demurrer. In a footnote Defendants also raise the bar of the statute of limitations.
Jan 07, 2021
San Diego County, CA
What authority exists suggests that claim preclusion would not apply in any event, since civil service proceedings to challenge disciplinary actions and FEHA civil actions, although potentially targeting identical adverse employment conduct, have been held to rest upon different primary rights.
Jan 07, 2021
Employment
Wrongful Term
Los Angeles County, CA
Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Any defects must either appear on the face of the pleading, or else be taken by judicial notice. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22.) The parties’ ability to prove their respective claims is of no concern. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.)
Jan 07, 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 07, 2021
Contract
Breach
Los Angeles County, CA
This timeframe should allow Equity adequate time to secure alternative representation prior to defending the challenge to its complaint, but if Equity requires additional time, the Court will continue the demurrer hearing to permit Equity to secure counsel with whom it has a viable attorney-client relationship. The Court finds, therefore, that Goldberg’s motion should be granted on the condition that he file the required Proposed Order, which should include the modified dates ordered by the Court. IV.
Jan 07, 2021
Business
Intellectual Property
Los Angeles County, CA
In a third challenge to Plaintiff Mascot Car Rental W, Inc.’s (“Plaintiff”) operative pleading, Defendant Amazon Logistics, Inc.’s (“Amazon”) demurs and moves to strike the causes of action for intentional and negligent interference with prospective economic relations from the now twice-amended complaint (“SAC”). Meet and Confer Amazon has filed a meet and confer declaration that complies with Code of Civil Procedure section 430.41. (Kendall Decl. ¶¶ 1-2.)
Jan 07, 2021
Los Angeles County, CA
“If the applicant wishes to challenge the submission of their name on the certified list, the applicant shall make a timely written request for review to the local child support agency who certified the applicant’s name. A request for review pursuant to this section shall be resolved in the same manner and timeframe provided for resolution of a complaint pursuant to Section 17800.
Jan 07, 2021
Riverside County, CA
That way, if the demurrer or other challenge is upheld, the appellate court will know on what ground the amendment was rejected. (California Cas. Gen. Ins. Co. v. Sup. Ct ((1985) 173 Cal.App.3d 274, 281, (disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407).) This Court chooses to follow the better practice, and will not rule on the merits of the proposed amended pleading at this stage in the proceedings—the motion to amend.
Jan 07, 2021
San Joaquin County, CA
Out of an abundance of caution, the defendants waive their right to challenge entitlement of statutory reasonable attorney fees notwithstanding the case of Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628, 633. Defendants reserve the right to appeal any other issues other than the entitlement to the statutory fees. The settlement agreement was fully executed on September 24, 2020. Plaintiff has demonstrated entitlement to attorneys’ fees pursuant to the settlement agreement.
Jan 07, 2021
Real Property
Landlord Tenant
Los Angeles County, CA
Regardless, this action has now been consolidated with the probate court action for al purposes, rendering this challenge moot. Evidentiary Ruling Plaintiff’s Request for Judicial Notice of Exhibits A through U is granted pursuant to Ev.
Jan 07, 2021
: Timothy Volkmann</p>
Santa Cruz County, CA
If a charity wishes to challenge the Attorney General’s order, the charity may “request a hearing to review that action.” §12591.1(e). Pet. Op. Br. at 17. CMMB argues that the Attorney General is a prosecutor, not a judicial officer.
Jan 07, 2021
Administrative
Writ
Los Angeles County, CA
If a charity wishes to challenge the Attorney General’s order, the charity may “request a hearing to review that action.” §12591.1(e). Pet. Op. Br. at 17. CMMB argues that the Attorney General is a prosecutor, not a judicial officer.
Jan 07, 2021
Los Angeles County, CA
Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) All facts alleged in the complaint are deemed admitted, and the complaint is given a reasonable interpretation as a whole and all parts in their context. (Lance, supra, at 198.)
Jan 07, 2021
Contract
Breach
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.) This argument is of dispositive effect only upon the first cause of action for wrongful foreclosure, however, which is the only remaining claim based solely upon Citimortgage’s alleged lack of authority to foreclose. (SAC ¶¶ 32–41.)
Jan 07, 2021
Real Property
Foreclosure
Los Angeles County, CA
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