Preview
Chris Baker (SBN 181557)
1 Deborah Schwartz (SBN 208934)
2 BAKER CURTIS & SCHWARTZ, P.C.
1 California St., Suite 1250
3 San Francisco, CA 94111
Telephone: (415) 433-1064
4 Fax: (415) 366-2525
Email: cbaker@bakerlp.com
5 dschwartz@bakerlp.com
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Jahan C. Sagafi (SBN 224887)
7 OUTTEN & GOLDEN LLP
One California Street, 12th Fl
8 San Francisco, CA 94111
Telephone: (415) 638-8800
9 Fax: (415) 638-8810
10 Email: jsagafi@outtengolden.com
11 Attorneys for Aggrieved Party of Record
PAOLA CORREA
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN MATEO
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RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
17 California and aggrieved employees,
Assigned for All Purposes to
18 Hon. Marie S. Weiner
Plaintiff,
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vs. AGGRIEVED PARTY OF RECORD
20 PAOLA CORREA’S PEREMPTORY
CHALLENGE MOTION UNDER
21 ADECCO USA, INC., and DOES 1-50, inclusive, C.C.P. 170.6; DECLARATION OF
Defendants. CHRIS BAKER IN SUPPORT
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23 _______________________ Motion to Be Filed with Hon. Leland
Davis, III, Presiding Judge
24 Department 1, Courtroom 2H
PAOLA CORREA, Aggrieved Party of Record
25 Complaint Filed: April 18, 2017
and Successful Appellant.
26 Settlement Approval Hearing:
27 May 24, 2022
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MOTION UNDER C.C.P. § 170.6
1 TO PLAINTIFF RACHEL MONIZ, DEFENDANT ADECCO USA, INC., AND THE LABOR
2 AND WORKFORCE DEVELOPMENT AGENCY (AND THEIR ATTORNEYS OF
3 RECORD):
4 PLEASE TAKE NOTICE that, pursuant to Section 170.6 of the California Code of Civil
5 Procedure, aggrieved party of record and successful appellant Paola Correa, through her counsel,
6 hereby respectfully files a peremptory challenge to the reassignment of Judge Marie S. Weiner
7 (“the Challenged Judge”) to this case for all purposes.
8 When a cause is assigned to a single assignment judge, a party may direct her peremptory
9 challenge to either that judge or the presiding judge. C.C.P. § 170.6(a)(2). Here, Correa directs
10 her motion to the presiding judge.
11 California Code of Civil Procedure 170.6(a)(2) states a peremptory challenge “motion
12 under this paragraph may be made following reversal on appeal of a trial court’s decision, or
13 following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior
14 proceeding is assigned to conduct a new trial on the matter.” It also states: “Notwithstanding
15 paragraph (4) [concerning the number of peremptory challenges], the party who filed the appeal
16 that resulted in the reversal of a final judgment of a trial court may make a motion under this
17 section regardless of whether that party or side has previously done so.” Finally, it states the
18 peremptory challenge motion “shall be made within 60 days after the party or the party’s
19 attorney has been notified of the assignment.”
20 Here, Correa is the aggrieved party of record who filed the appeal that resulted in the
21 reversal of a final judgment of the trial court. Moniz v. Adecco/Adecco v. Correa (2021) 72
22 Cal.App.5th 56, 70, 89 (Moniz). Correa therefore has the unconditional right to make this
23 peremptory challenge. Furthermore, the Challenged Judge rendered the judgment reversed on
24 appeal, and this same judge has been assigned to conduct a new trial on this matter, e.g., a new
25 settlement approval hearing. This is an alternative basis for granting Correa’s motion. The
26 motion is timely because it is made within 60 days of the February 7, 2022 remittitur and the
27 March 4, 2022 Case Management Order No. 13. The March 4, 2022 Order was Correa’s first
28 notification of the case’s post-appeal assignment to the Challenged Judge.
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MOTION UNDER C.C.P. § 170.6
1 WHEREFORE, aggrieved party of record/successful appellant Paola Correa respectfully
2 requests that her motion for automatic reassignment pursuant to Code of Civil Procedure Section
3 170.6 be granted.
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Dated: March 16, 2022 BAKER CURTIS & SCHWARTZ, P.C.
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By: _________________________________
7 Chris Baker
Attorneys for Aggrieved Party of Record
8 Paola Correa
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MOTION UNDER C.C.P. § 170.6
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. FACTS
3 On February 10, 2022, the Challenged Judge rendered a judgment approving a PAGA
4 settlement in this action. Moniz, supra, 72 Cal.App.5th at 69.1 “Correa moved for a new trial
5 pursuant to C.C.P. §§ 657 and 659, and to vacate the judgment under Code of Civil Procedure
6 section 663 and 473, subdivision (d).” Id. By doing so, Correa became an aggrieved party of
7 record in the action. Id. at 71-72; See, also, People ex rel Reisig v. Broderick Boys, 149
8 Cal.App.4th 1506, 1516 (“it is always permissible for the one injured [by a decree] to make
9 himself a party to the litigation, if he has not been a party, and after he has submitted to the
10 jurisdiction of the court, to move for vacation of the decree or appealable order injuriously
11 affecting his interests, and to appeal if the motion is denied.”).
12 Correa appealed the trial court’s judgment and order denying her post-judgment motion.
13 Moniz, supra, 72 Cal.App.5th at 70. On November 30, 2021, the Court of Appeal reversed the
14 trial court’s judgment. In doing so, the Court of Appeal stated there was merit to Correa’s
15 argument that the allocation in the PAGA settlement approved by the trial court “was unjustified
16 and unfair.” Id. at 87. It found “the trial court abused its discretion in approving the settlement,”
17 Id. at 89, and concluded:
18 The unsubstantiated and disproportionate allocation of civil
19 penalties between Associates and Colleagues provides sufficient
cause for us to question the scrutiny applied here [by the trial
20 court] and remand the matter.
21 Disposition
22 The judgment is reversed.
23 Id.
24 On February 7, 2022, the Court of Appeal issued its remittitur. On March 4, 2022, the
25 Challenged Judge entered Case Management Order No. 13, setting a hearing date of April 5,
26 2022 for Plaintiff’s renewed motion for settlement approval. This was Correa’s first notification
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The Court of Appeal’s opinion in Moniz is attached to the February 7, 2022 remittitur, on file
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MOTION UNDER C.C.P. § 170.6
1 that the case had been assigned to the Challenged Judge post-appeal. On March 11, 2022, the
2 Challenged Judge continued this hearing date to May 24, 2022.
3 II. ARGUMENT
4 A. The Court Must Grant Correa’s 170.6 Motion
5 C.C.P. § 170.6 “permits ‘[a] party . . . appearing in . . . an action or proceeding’ to
6 disqualify the judge based on the sworn statement of the party’s belief that the judge is
7 prejudiced against that party or the party’s attorneys.” Sunrise Financial, L.L.C. v. Superior
8 Court (2019) 32 Cal.App.5th 114, 122. If a C.C.P § 170.6 affidavit is filed timely and in proper
9 form, the challenged judge is disqualified “instantly and irrevocably.” Davcon, Inc. v Roberts &
10 Morgan (2003) 110 Cal.App.4th 1355, 1360. The trial court is bound to accept the peremptory
11 challenge without further inquiry. Barrett v Sup. Ct. (People) (1999) 77 Cal.App.4th 1, 4;
12 Stephens v Sup. Ct. (Stephens) (2002) 96 Cal.App.4th 54, 59. Similar to the right to appeal set
13 forth in C.C.P. § 902, “as a remedial statute, section 170.6 is to be liberally construed in favor of
14 allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely
15 forbids it.” Sunrise Financial, supra, 32 Cal.App.4th at 123; Cf, Moniz, supra, 72 Cal.App.5th at
16 123 (construing C.C.P. § 902).
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B. As the Party Who Filed the Appeal That Resulted in the Reversal of
18 the Final Judgment, Correa Has an Unconditional Right to Make a
Post-Appeal Peremptory Challenge
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Code of Civil Procedure § 170.6(a)(2) provides that “the party who filed the appeal that
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resulted in the reversal of a final judgment of a trial court may make a motion under this section
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regardless of whether that party or side has previously done so.” Here, Correa is the party who
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filed the appeal that resulted in the reversal of the final judgment. Thus, she has an
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unconditional right to make this peremptory challenge.
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C. Correa Is Entitled to a Post-Appeal Peremptory Challenge Because
25 the Trial Judge in the Prior Proceeding Has Been Assigned to
26 Conduct a New Trial on the Matter
Alternatively, Correa is entitled to a post-appeal peremptory challenge because the
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challenge follows “reversal on appeal of a trial court’s final judgment” and “the trial judge in the
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MOTION UNDER C.C.P. § 170.6
1 prior proceeding [has been] assigned to conduct a new trial on the matter.” C.C.P. § 170.6(a)(2).
2 Courts uniformly hold that a “new trial:”
3 “[D]oes not turn on whether the issue(s) to be resolved on remand are
4 limited, but what the court must do to resolve them. If the court's function
is merely a ministerial act (such as the recalculation of interest), the 1985
5 amendment does not apply. If, however, the court must conduct an actual
retrial, even if that trial involves only one issue, the court may be
6 disqualified upon a timely affidavit....” Later cases have followed that
reasoning to permit a challenge whenever a decision is sent back to the
7 trial judge for rulings on the merits of the litigation. (E.g. People v.
8 Superior Court (Maloy), supra, 91 Cal.App.4th at p. 397, 109 Cal.Rptr.2d
897 [reversal of dismissal on jurisdictional grounds required a new trial];
9 Stubblefield Construction Co. v. Superior Court, supra, 81 Cal.App.4th at
p. 765, 97 Cal.Rptr.2d 121 [reversal of summary judgment required a new
10 trial].)”
11 Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761, 767.
12 Here, the Challenged Judge rendered the original judgment approving the PAGA
13 settlement. The Court of Appeal reversed this judgment, concluding that at least one of Correa’s
14 objections to the original judgment had merit. Moniz, supra, 72 Cal.App.5th at 87 (“We find that
15 Correa’s third argument has merit and warrants reversal, so we decline to address the other two
16 arguments” 2). The Court of Appeal also concluded “the trial court abused its discretion in
17 approving the settlement.” Id. at 89. The same trial judge has now been assigned to conduct a
18 new trial which will require rulings on the merits of the litigation, including with respect to the
19 upcoming renewed motion for settlement approval. Section 170.6 thus expressly permits a
20 peremptory challenge with respect to the Challenged Judge.
21 This serves as an alternative ground for Correa’s post-judgment peremptory challenge.
22 D. Correa’s Post-Appeal Peremptory Challenge Is Timely
23 Code of Civil Procedure § 170.6 permits a party to make a post-appeal peremptory
24 challenge within 60-day after the party or the party’s attorney has been notified of the
25 assignment. Here, the Court of Appeal issued its remittitur to this Court on February 7, 2022.
26 Correa learned of the assignment to the Challenged Judge on March 4, 2022, when the Court
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Correa made other arguments as well, which the Court of Appeal declined to address in light of
28 the reversal. E.g., Id. at 89, n. 21.
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MOTION UNDER C.C.P. § 170.6
1 entered Case Management Order No. 13. This motion, made on March 16, 2022, is thus timely.
2 It is made less than sixty days after notice of the assignment following the appeal.
3 E. Correa’s C.C.P § 170.6 Affidavit Is in Proper Form
4 The affidavit submitted by Correa’s counsel to make the C.C.P § 170.6 challenge is in
5 proper form. It contains the requisite language set forth in CCP § 170.6(a)(6).
6 III. CONCLUSION
7 For these reasons, the Court should grant the instant and irrevocable peremptory
8 challenge of aggrieved party of record Paola Correa, and a new judge should be assigned.
9 Dated: March 16, 2022 BAKER CURTIS & SCHWARTZ, P.C.
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11 By:
Chris Baker
12 Attorneys for Aggrieved Party of Record
PAOLA CORREA
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MOTION UNDER C.C.P. § 170.6
1 DECLARATION OF CHRIS BAKER
2 I, Chris Baker, declare as follows:
3 1. I am an attorney-at-law, duly licensed to practice in the state of California, and am
4 a partner in the firm of Baker Curtis & Schwartz, P.C., counsel of record for aggrieved party of
5 record and successful appellant Paola Correa. As such, I am personally familiar with this action
6 and have personal knowledge of the facts set forth herein and could competently testify thereto.
7 2. Judge Marie S. Weiner rendered the February 10, 2019 judgment in this Action.
8 Correa filed a post judgment motion for a new trial and to vacate the judgment, thus becoming a
9 party of record in this case. She appealed Judge Weiner’s decrees, and the Court of Appeal
10 reversed Judge Weiner’s judgment on November 30, 2021. Moniz v. Adecco/Adecco v. Correa
11 (2021) 72 Cal.App.5th 56.
12 3. The Court of Appeal issued its remittitur in Moniz to this Court on February 7,
13 2022. I first learned of the reassignment of this case to Judge Weiner on March 4, 2022, when
14 the Court entered Case Management Order No. 13.
15 4. I submit this declaration for purposes of a motion under Code of Civil Procedure
16 § 170.6 only. Consistent with the practices and procedures under that statute, I am informed and
17 believe that Judge Weiner, to whom this action is assigned for trial, is prejudiced against
18 aggrieved party of record Paola Correa and her counsel, and the interests of Correa and her
19 counsel, so that Correa cannot or believes she cannot have a fair and impartial hearing of the
20 matters associated with this action.
21 I declare under penalty of perjury under the laws of California that the foregoing is true
22 and correct. Executed on March 16, 2022, in the City and County of San Francisco, California.
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24 Chris Baker
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MOTION UNDER C.C.P. § 170.6
Preview
Chris Baker (SBN 181557) 1 Deborah Schwartz (SBN 208934) 2 BAKER CURTIS & SCHWARTZ, P.C. 1 California St., Suite 1250 3 San Francisco, CA 94111 Telephone: (415) 433-1064 4 Fax: (415) 366-2525 Email: cbaker@bakerlp.com 5 dschwartz@bakerlp.com 6 Jahan C. Sagafi (SBN 224887) 7 OUTTEN & GOLDEN LLP One California Street, 12th Fl 8 San Francisco, CA 94111 Telephone: (415) 638-8800 9 Fax: (415) 638-8810 10 Email: jsagafi@outtengolden.com 11 Attorneys for Aggrieved Party of Record PAOLA CORREA 12 13 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SAN MATEO 15 16 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 17 California and aggrieved employees, Assigned for All Purposes to 18 Hon. Marie S. Weiner Plaintiff, 19 vs. AGGRIEVED PARTY OF RECORD 20 PAOLA CORREA’S PEREMPTORY CHALLENGE MOTION UNDER 21 ADECCO USA, INC., and DOES 1-50, inclusive, C.C.P. 170.6; DECLARATION OF Defendants. CHRIS BAKER IN SUPPORT 22 23 _______________________ Motion to Be Filed with Hon. Leland Davis, III, Presiding Judge 24 Department 1, Courtroom 2H PAOLA CORREA, Aggrieved Party of Record 25 Complaint Filed: April 18, 2017 and Successful Appellant. 26 Settlement Approval Hearing: 27 May 24, 2022 28 MOTION UNDER C.C.P. § 170.6 1 TO PLAINTIFF RACHEL MONIZ, DEFENDANT ADECCO USA, INC., AND THE LABOR 2 AND WORKFORCE DEVELOPMENT AGENCY (AND THEIR ATTORNEYS OF 3 RECORD): 4 PLEASE TAKE NOTICE that, pursuant to Section 170.6 of the California Code of Civil 5 Procedure, aggrieved party of record and successful appellant Paola Correa, through her counsel, 6 hereby respectfully files a peremptory challenge to the reassignment of Judge Marie S. Weiner 7 (“the Challenged Judge”) to this case for all purposes. 8 When a cause is assigned to a single assignment judge, a party may direct her peremptory 9 challenge to either that judge or the presiding judge. C.C.P. § 170.6(a)(2). Here, Correa directs 10 her motion to the presiding judge. 11 California Code of Civil Procedure 170.6(a)(2) states a peremptory challenge “motion 12 under this paragraph may be made following reversal on appeal of a trial court’s decision, or 13 following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior 14 proceeding is assigned to conduct a new trial on the matter.” It also states: “Notwithstanding 15 paragraph (4) [concerning the number of peremptory challenges], the party who filed the appeal 16 that resulted in the reversal of a final judgment of a trial court may make a motion under this 17 section regardless of whether that party or side has previously done so.” Finally, it states the 18 peremptory challenge motion “shall be made within 60 days after the party or the party’s 19 attorney has been notified of the assignment.” 20 Here, Correa is the aggrieved party of record who filed the appeal that resulted in the 21 reversal of a final judgment of the trial court. Moniz v. Adecco/Adecco v. Correa (2021) 72 22 Cal.App.5th 56, 70, 89 (Moniz). Correa therefore has the unconditional right to make this 23 peremptory challenge. Furthermore, the Challenged Judge rendered the judgment reversed on 24 appeal, and this same judge has been assigned to conduct a new trial on this matter, e.g., a new 25 settlement approval hearing. This is an alternative basis for granting Correa’s motion. The 26 motion is timely because it is made within 60 days of the February 7, 2022 remittitur and the 27 March 4, 2022 Case Management Order No. 13. The March 4, 2022 Order was Correa’s first 28 notification of the case’s post-appeal assignment to the Challenged Judge. -1- MOTION UNDER C.C.P. § 170.6 1 WHEREFORE, aggrieved party of record/successful appellant Paola Correa respectfully 2 requests that her motion for automatic reassignment pursuant to Code of Civil Procedure Section 3 170.6 be granted. 4 Dated: March 16, 2022 BAKER CURTIS & SCHWARTZ, P.C. 5 6 By: _________________________________ 7 Chris Baker Attorneys for Aggrieved Party of Record 8 Paola Correa 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MOTION UNDER C.C.P. § 170.6 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. FACTS 3 On February 10, 2022, the Challenged Judge rendered a judgment approving a PAGA 4 settlement in this action. Moniz, supra, 72 Cal.App.5th at 69.1 “Correa moved for a new trial 5 pursuant to C.C.P. §§ 657 and 659, and to vacate the judgment under Code of Civil Procedure 6 section 663 and 473, subdivision (d).” Id. By doing so, Correa became an aggrieved party of 7 record in the action. Id. at 71-72; See, also, People ex rel Reisig v. Broderick Boys, 149 8 Cal.App.4th 1506, 1516 (“it is always permissible for the one injured [by a decree] to make 9 himself a party to the litigation, if he has not been a party, and after he has submitted to the 10 jurisdiction of the court, to move for vacation of the decree or appealable order injuriously 11 affecting his interests, and to appeal if the motion is denied.”). 12 Correa appealed the trial court’s judgment and order denying her post-judgment motion. 13 Moniz, supra, 72 Cal.App.5th at 70. On November 30, 2021, the Court of Appeal reversed the 14 trial court’s judgment. In doing so, the Court of Appeal stated there was merit to Correa’s 15 argument that the allocation in the PAGA settlement approved by the trial court “was unjustified 16 and unfair.” Id. at 87. It found “the trial court abused its discretion in approving the settlement,” 17 Id. at 89, and concluded: 18 The unsubstantiated and disproportionate allocation of civil 19 penalties between Associates and Colleagues provides sufficient cause for us to question the scrutiny applied here [by the trial 20 court] and remand the matter. 21 Disposition 22 The judgment is reversed. 23 Id. 24 On February 7, 2022, the Court of Appeal issued its remittitur. On March 4, 2022, the 25 Challenged Judge entered Case Management Order No. 13, setting a hearing date of April 5, 26 2022 for Plaintiff’s renewed motion for settlement approval. This was Correa’s first notification 27 1 The Court of Appeal’s opinion in Moniz is attached to the February 7, 2022 remittitur, on file 28 with this Court. -3- MOTION UNDER C.C.P. § 170.6 1 that the case had been assigned to the Challenged Judge post-appeal. On March 11, 2022, the 2 Challenged Judge continued this hearing date to May 24, 2022. 3 II. ARGUMENT 4 A. The Court Must Grant Correa’s 170.6 Motion 5 C.C.P. § 170.6 “permits ‘[a] party . . . appearing in . . . an action or proceeding’ to 6 disqualify the judge based on the sworn statement of the party’s belief that the judge is 7 prejudiced against that party or the party’s attorneys.” Sunrise Financial, L.L.C. v. Superior 8 Court (2019) 32 Cal.App.5th 114, 122. If a C.C.P § 170.6 affidavit is filed timely and in proper 9 form, the challenged judge is disqualified “instantly and irrevocably.” Davcon, Inc. v Roberts & 10 Morgan (2003) 110 Cal.App.4th 1355, 1360. The trial court is bound to accept the peremptory 11 challenge without further inquiry. Barrett v Sup. Ct. (People) (1999) 77 Cal.App.4th 1, 4; 12 Stephens v Sup. Ct. (Stephens) (2002) 96 Cal.App.4th 54, 59. Similar to the right to appeal set 13 forth in C.C.P. § 902, “as a remedial statute, section 170.6 is to be liberally construed in favor of 14 allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely 15 forbids it.” Sunrise Financial, supra, 32 Cal.App.4th at 123; Cf, Moniz, supra, 72 Cal.App.5th at 16 123 (construing C.C.P. § 902). 17 B. As the Party Who Filed the Appeal That Resulted in the Reversal of 18 the Final Judgment, Correa Has an Unconditional Right to Make a Post-Appeal Peremptory Challenge 19 Code of Civil Procedure § 170.6(a)(2) provides that “the party who filed the appeal that 20 resulted in the reversal of a final judgment of a trial court may make a motion under this section 21 regardless of whether that party or side has previously done so.” Here, Correa is the party who 22 filed the appeal that resulted in the reversal of the final judgment. Thus, she has an 23 unconditional right to make this peremptory challenge. 24 C. Correa Is Entitled to a Post-Appeal Peremptory Challenge Because 25 the Trial Judge in the Prior Proceeding Has Been Assigned to 26 Conduct a New Trial on the Matter Alternatively, Correa is entitled to a post-appeal peremptory challenge because the 27 challenge follows “reversal on appeal of a trial court’s final judgment” and “the trial judge in the 28 -4- MOTION UNDER C.C.P. § 170.6 1 prior proceeding [has been] assigned to conduct a new trial on the matter.” C.C.P. § 170.6(a)(2). 2 Courts uniformly hold that a “new trial:” 3 “[D]oes not turn on whether the issue(s) to be resolved on remand are 4 limited, but what the court must do to resolve them. If the court's function is merely a ministerial act (such as the recalculation of interest), the 1985 5 amendment does not apply. If, however, the court must conduct an actual retrial, even if that trial involves only one issue, the court may be 6 disqualified upon a timely affidavit....” Later cases have followed that reasoning to permit a challenge whenever a decision is sent back to the 7 trial judge for rulings on the merits of the litigation. (E.g. People v. 8 Superior Court (Maloy), supra, 91 Cal.App.4th at p. 397, 109 Cal.Rptr.2d 897 [reversal of dismissal on jurisdictional grounds required a new trial]; 9 Stubblefield Construction Co. v. Superior Court, supra, 81 Cal.App.4th at p. 765, 97 Cal.Rptr.2d 121 [reversal of summary judgment required a new 10 trial].)” 11 Pfeiffer Venice Properties v. Superior Court (2003) 107 Cal.App.4th 761, 767. 12 Here, the Challenged Judge rendered the original judgment approving the PAGA 13 settlement. The Court of Appeal reversed this judgment, concluding that at least one of Correa’s 14 objections to the original judgment had merit. Moniz, supra, 72 Cal.App.5th at 87 (“We find that 15 Correa’s third argument has merit and warrants reversal, so we decline to address the other two 16 arguments” 2). The Court of Appeal also concluded “the trial court abused its discretion in 17 approving the settlement.” Id. at 89. The same trial judge has now been assigned to conduct a 18 new trial which will require rulings on the merits of the litigation, including with respect to the 19 upcoming renewed motion for settlement approval. Section 170.6 thus expressly permits a 20 peremptory challenge with respect to the Challenged Judge. 21 This serves as an alternative ground for Correa’s post-judgment peremptory challenge. 22 D. Correa’s Post-Appeal Peremptory Challenge Is Timely 23 Code of Civil Procedure § 170.6 permits a party to make a post-appeal peremptory 24 challenge within 60-day after the party or the party’s attorney has been notified of the 25 assignment. Here, the Court of Appeal issued its remittitur to this Court on February 7, 2022. 26 Correa learned of the assignment to the Challenged Judge on March 4, 2022, when the Court 27 2 Correa made other arguments as well, which the Court of Appeal declined to address in light of 28 the reversal. E.g., Id. at 89, n. 21. -5- MOTION UNDER C.C.P. § 170.6 1 entered Case Management Order No. 13. This motion, made on March 16, 2022, is thus timely. 2 It is made less than sixty days after notice of the assignment following the appeal. 3 E. Correa’s C.C.P § 170.6 Affidavit Is in Proper Form 4 The affidavit submitted by Correa’s counsel to make the C.C.P § 170.6 challenge is in 5 proper form. It contains the requisite language set forth in CCP § 170.6(a)(6). 6 III. CONCLUSION 7 For these reasons, the Court should grant the instant and irrevocable peremptory 8 challenge of aggrieved party of record Paola Correa, and a new judge should be assigned. 9 Dated: March 16, 2022 BAKER CURTIS & SCHWARTZ, P.C. 10 11 By: Chris Baker 12 Attorneys for Aggrieved Party of Record PAOLA CORREA 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- MOTION UNDER C.C.P. § 170.6 1 DECLARATION OF CHRIS BAKER 2 I, Chris Baker, declare as follows: 3 1. I am an attorney-at-law, duly licensed to practice in the state of California, and am 4 a partner in the firm of Baker Curtis & Schwartz, P.C., counsel of record for aggrieved party of 5 record and successful appellant Paola Correa. As such, I am personally familiar with this action 6 and have personal knowledge of the facts set forth herein and could competently testify thereto. 7 2. Judge Marie S. Weiner rendered the February 10, 2019 judgment in this Action. 8 Correa filed a post judgment motion for a new trial and to vacate the judgment, thus becoming a 9 party of record in this case. She appealed Judge Weiner’s decrees, and the Court of Appeal 10 reversed Judge Weiner’s judgment on November 30, 2021. Moniz v. Adecco/Adecco v. Correa 11 (2021) 72 Cal.App.5th 56. 12 3. The Court of Appeal issued its remittitur in Moniz to this Court on February 7, 13 2022. I first learned of the reassignment of this case to Judge Weiner on March 4, 2022, when 14 the Court entered Case Management Order No. 13. 15 4. I submit this declaration for purposes of a motion under Code of Civil Procedure 16 § 170.6 only. Consistent with the practices and procedures under that statute, I am informed and 17 believe that Judge Weiner, to whom this action is assigned for trial, is prejudiced against 18 aggrieved party of record Paola Correa and her counsel, and the interests of Correa and her 19 counsel, so that Correa cannot or believes she cannot have a fair and impartial hearing of the 20 matters associated with this action. 21 I declare under penalty of perjury under the laws of California that the foregoing is true 22 and correct. Executed on March 16, 2022, in the City and County of San Francisco, California. 23 _________________________________ 24 Chris Baker 25 26 27 28 -7- MOTION UNDER C.C.P. § 170.6