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FILED
SAN MATEC QQUNTY
SEP 2 2 2021
IN AND FOR THE COUNTY OF SAN MATEO
JEFFREY F. RYAN, )
.
Plaintiff, )
CASE NO. 21-CIV-04391
V.
g
) ORDER STRIKING
WILLIAM CARLOS LEET, and DOES 1 thru 10, ) PEREMPTORY CHALLENGE
)
Defendants.
3
10 )
)
11
12
On September 14, 2021, Defendant William Carlos Leet led a peremptory challenge
13
14 against Department 4 of this Court, the Honorable Nancy
L. Fineman, pursuant to Code of Civil
15
Procedure Section 170.6.
16
IT IS HEREBY ORDERED as follows:
17
on
against Judge Nancy L. Fineman, Department 4,
led
The peremptory challenge led
"18
in
19 September l4, 2021 by Defendant William Carlos Fleet is stricken as procedurally improper,
20 that: l) it is premature and thus not timely and 2) it is not supported by competent evidence.
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THE COURT FINDS as follows:
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The Complaint was led in this case on August 17, 2021. A Notice of Assignment For
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All Purposes (Civil) and Notice of Case Management Conference, assigning the case to the
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25 Honorable Nancy L. Fineman, was led on August 18, 2021.
26 Defendant William Carlos Leet led a peremptory challenge against the Honorable
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14, 2021 , but led no pleading or motion that might constitute
Nancy L. Fineman on September
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a general appearance until Septerber 15, 2021. Defendant did not Sign the Declaration which
was attached to the challenge.
The ability to exercise a peremptory challenge, which is a creature of statute, is limited
by the statute itself. Section l70.6(a)(2) provides that where a judge is single assigned for all
or to the presiding judge by a party
purposes, “the motion shall be made to the assigned judge
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.” (Emphasis added.)
Defendant had not appeared at the time of the all purpose assignment to Judge Fineman.
10
ll His ability to exercise a peremptory challenge, in a situation involving a single assigned judge,
12 does not arise unless and until after his appearance in this lawsuit. It is well established that
l3 170.6 means a “general appearance”. La Seigneurie U.S. Holdings
“appearance” under Section
l4
Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504.
15
The ling of a peremptory challenge does not constitute a general appwrance. Loin v.
l6
17 Superior Court (1971) 19 Cal.App.3d 577; Witkin, 2 California Procedure (5th Ed. 2008)
l8 Jurisdiction Section 210(4). A “general appearance” is dened in Code of Civil Procedure
l9 a
Section 1014. “A defendant appears in an action when the defendant answers, demurs, les
20
notice of motion to strike, les a notice of motion to transfer pursuant to Section 396b, moves for
21
reclassication pursuant to section 403.040, gives the plaintiff written notice
of appearance or
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23 when an attorney gives notice of appearance for the defendant.” None of these had occurred as of
24
the ling of the peremptory challenge by Defendant in this case.
25
Even if Defendant had led his peremptory challenge in a timely fashion, it would have
26
been denied due to an absence of sufcient competent evidence to support it. A declaration is a
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writing that is signed, dated and certied as true under penalty of perjury. (Code of Civil
Procedure Section 20 1 5 .5.)
Section 2015.5 provides: “Whenever, under any law of this state ...,any
matter is required or permitted to be supported, evidenced, established, or proved
certicate, oath, or afdavit, in
by the sworn statement, declaration, verication,
writing of the person making the same ...,such matter may with like force and
effect be supported, evidenced, established or proved by the unswom statement,
declaration, verication, or certicate, in writing of such person which recites that
10
it is certied or declared by him 0r her to be true under penalty of perjury, is
ll
12 subscribed by him or her, and (1), if executed within this state, states the date
l3 of execution, or (2), if executed at any place, within or without this
and place
l4
state, states the date of execution and that it is so certied or declared under the
15
laws of the State of California.” (Emphasis added.)
l6
l7 Because Defendant did not sign his declaration, the Court does not have evidence upon
18 which it could grant the peremptory challenge in this case.
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This Court nds that the peremptory challenge led by Defendant is procedurally
20
improper.
21
mm m
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23 Dated: September 21, 2021
ag-jwa— 3
..LELANI‘T’DXVIS, III
24 PRESIDING JUDGE
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26
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Preview
FILED SAN MATEC QQUNTY SEP 2 2 2021 IN AND FOR THE COUNTY OF SAN MATEO JEFFREY F. RYAN, ) . Plaintiff, ) CASE NO. 21-CIV-04391 V. g ) ORDER STRIKING WILLIAM CARLOS LEET, and DOES 1 thru 10, ) PEREMPTORY CHALLENGE ) Defendants. 3 10 ) ) 11 12 On September 14, 2021, Defendant William Carlos Leet led a peremptory challenge 13 14 against Department 4 of this Court, the Honorable Nancy L. Fineman, pursuant to Code of Civil 15 Procedure Section 170.6. 16 IT IS HEREBY ORDERED as follows: 17 on against Judge Nancy L. Fineman, Department 4, led The peremptory challenge led "18 in 19 September l4, 2021 by Defendant William Carlos Fleet is stricken as procedurally improper, 20 that: l) it is premature and thus not timely and 2) it is not supported by competent evidence. 21 THE COURT FINDS as follows: 22 The Complaint was led in this case on August 17, 2021. A Notice of Assignment For 23 All Purposes (Civil) and Notice of Case Management Conference, assigning the case to the 24 25 Honorable Nancy L. Fineman, was led on August 18, 2021. 26 Defendant William Carlos Leet led a peremptory challenge against the Honorable 27 14, 2021 , but led no pleading or motion that might constitute Nancy L. Fineman on September 28 a general appearance until Septerber 15, 2021. Defendant did not Sign the Declaration which was attached to the challenge. The ability to exercise a peremptory challenge, which is a creature of statute, is limited by the statute itself. Section l70.6(a)(2) provides that where a judge is single assigned for all or to the presiding judge by a party purposes, “the motion shall be made to the assigned judge 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.” (Emphasis added.) Defendant had not appeared at the time of the all purpose assignment to Judge Fineman. 10 ll His ability to exercise a peremptory challenge, in a situation involving a single assigned judge, 12 does not arise unless and until after his appearance in this lawsuit. It is well established that l3 170.6 means a “general appearance”. La Seigneurie U.S. Holdings “appearance” under Section l4 Inc. v. Superior Court (1994) 29 Cal.App.4th 1500, 1504. 15 The ling of a peremptory challenge does not constitute a general appwrance. Loin v. l6 17 Superior Court (1971) 19 Cal.App.3d 577; Witkin, 2 California Procedure (5th Ed. 2008) l8 Jurisdiction Section 210(4). A “general appearance” is dened in Code of Civil Procedure l9 a Section 1014. “A defendant appears in an action when the defendant answers, demurs, les 20 notice of motion to strike, les a notice of motion to transfer pursuant to Section 396b, moves for 21 reclassication pursuant to section 403.040, gives the plaintiff written notice of appearance or 22 23 when an attorney gives notice of appearance for the defendant.” None of these had occurred as of 24 the ling of the peremptory challenge by Defendant in this case. 25 Even if Defendant had led his peremptory challenge in a timely fashion, it would have 26 been denied due to an absence of sufcient competent evidence to support it. A declaration is a 27 28 writing that is signed, dated and certied as true under penalty of perjury. (Code of Civil Procedure Section 20 1 5 .5.) Section 2015.5 provides: “Whenever, under any law of this state ...,any matter is required or permitted to be supported, evidenced, established, or proved certicate, oath, or afdavit, in by the sworn statement, declaration, verication, writing of the person making the same ...,such matter may with like force and effect be supported, evidenced, established or proved by the unswom statement, declaration, verication, or certicate, in writing of such person which recites that 10 it is certied or declared by him 0r her to be true under penalty of perjury, is ll 12 subscribed by him or her, and (1), if executed within this state, states the date l3 of execution, or (2), if executed at any place, within or without this and place l4 state, states the date of execution and that it is so certied or declared under the 15 laws of the State of California.” (Emphasis added.) l6 l7 Because Defendant did not sign his declaration, the Court does not have evidence upon 18 which it could grant the peremptory challenge in this case. 19 This Court nds that the peremptory challenge led by Defendant is procedurally 20 improper. 21 mm m 22 23 Dated: September 21, 2021 ag-jwa— 3 ..LELANI‘T’DXVIS, III 24 PRESIDING JUDGE 25 26 27 28