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judicial bias calif ccp 170

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U

uncle

Guest
What is the name of your state? California PLEASE HELP ANYONE! I desperately and immediately need to know the correct procedure to paper a judge in superior court. the court has shown tremendous bias. is there a form available through the court? do i file it exparte in master calender? how much notice do i give the opposing counsel? i have a copy of ccp 170-170.9 but can't figure it out. although no formal motion has been filed before the court. the court has taken action in this case. please please anyone, how do i paper this judge, before it's too late
 


I AM ALWAYS LIABLE

Senior Member
My response:

You file it with the clerk of the judge who is assigned to the case.

California Rules of Court, Rule 379 (Ex-Party Procedure)
http://www.courtinfo.ca.gov/rules/2002/titletwo/301-391-68.htm#TopOfPage

DISQUALIFICATION:
Judges may not disqualify themselves absent a valid statutory ground for disqualification. [See Ca Civ Pro § 170; Briggs v. Sup.Ct. (People) (2001) 87 Cal.App.4th 312, 318-319, 104 Cal.Rptr.2d 445, 449-450--"The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified"; and

If a judge determines there are grounds for his or her disqualification, the judge must either:
-- disclose such grounds on the record and (if the grounds are waivable, see below) ask the parties whether they wish to waive the disqualification; or
-- notify the presiding judge of his or her recusal. (If he or she is the only judge or is the presiding judge of the court, the notice must be given to whomever has authority to assign another judge to the matter.) [Ca Civ Pro § 170.3(a),(b)]

Except as noted below, the timely filing of an "affidavit of prejudice" disqualifies the judge without any showing of cause. The "affidavit of prejudice" is incontestable and disqualification is automatic. [See Ca Civ Pro § 170.6(2)]

Language in some cases suggests a § 170.6 challenge must be based on a "good faith belief" of prejudice. [See McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531, 116 Cal.Rptr. 260, 274]

However, there is no way to test "good faith." Once a § 170.6 affidavit is filed, "the court has no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the affidavit or its technical sufficiency under the statute . . . immediate disqualification is mandatory." [McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d at 531-532, 116 Cal.Rptr. at 274 (emphasis added); Grant v. Sup.Ct. (Jacobs) (2001) 90 Cal.App.4th 518, 524, 108 Cal.Rptr.2d 825, 829--where § 170.6 challenge is timely filed and in proper form, "trial court is bound to accept it without further inquiry"]

"The law assumes that a party who disqualifies a judge by a motion under section 170.6 does so in good faith. It is common knowledge that some attorneys or parties may abuse the statutory privilege by disqualifying a judge for tactical reasons, without any genuine belief that the judge is prejudiced. (citations) Nevertheless, section 170.6 provides that without any inquiry as to the motives of the moving party . . . the judge is thereupon disqualified." [Brown v. Sup.Ct. (14011 Ventura) (1981) 124 Cal.App.3d 1059, 1061-1062, 177 Cal.Rptr. 756, 758 (emphasis added)]

Thus, a timely § 170.6 challenge must be granted even if the court suspects that the party is abusing the right and is challenging the judge for tactical reasons. [Solberg v. Sup.Ct. (People) (1977) 19 Cal.3d 182, 196-198, 137 Cal.Rptr. 460, 469-470; see La Seigneurie U.S. Holdings v. Sup.Ct. (Clark) (1994) 29 Cal.App.4th 1500, 1505, 35 Cal.Rptr.2d 175, 178--successive timely challenges by codefendants represented by same counsel]

..............................
..............................
..............................
..............................
State Bar No. ................

Attorney for .................







........ COURT OF THE STATE OF CALIFORNIA

COUNTY OF ........



............................., ) CASE NO.: ........
)
Plaintiffs, ) OBJECTION TO JUDGE PRESIDING AT
) TRIAL [CCP Sec. 170.3(c) ]
vs. )
)
............................., )
) DATE ACTION FILED: ..................
Defendants. ) DATE SET FOR TRIAL: ....... (if set)
)
______________________________ )


TO: THE CLERK OF THIS COURT AND TO ALL PARTIES TO THIS ACTION

[Plaintiff/Defendant] ... (name) ... HEREBY OBJECTS to Judge ....

name.... presiding at the trial of this action or in any further

proceedings concerning this action.

Said objection is based on the facts and upon the grounds set forth

in the attached [sworn statement/declaration] (*) of ....................

....................................

DATED: .............., ....

/s/________________________________
Attorney for ......................


____________
(*) CCP Sec. 170.3(c) requires a "verified statement" by a "party"; but
an
attorney's declaration under penalty of perjury is held to satisfy
this requirement.

...................................
...................................
...................................
...................................
State Bar No.: ....................

Attorney for ......................







........ COURT OF THE STATE OF CALIFORNIA

COUNTY OF ........



............................., ) CASE NO.: ........
)
Plaintiffs, ) DECLARATION IN SUPPORT OF OBJECTION
) TO JUDGE PRESIDING AT TRIAL [CCP
vs. ) Sec. 170.3(c) ]
)
............................., )
) DATE ACTION FILED: ..................
Defendants. ) DATE SET FOR TRIAL: ....... (if set)
)
______________________________ )


.... (name ).... declares as follows:

(1) I am the attorney for.... (name ).... in this action.

(2) Judge.... (name ).... is disqualified to preside at the trial of

this action on the ground that: .... (one or more statutory grounds

enumerated ...... in CCP Sec. 170.1 ) ......

(3) I have personal knowledge of the following facts supporting the

said ground for disqualification of said judge: .... (competent,

nonhearsay ........ evidence required ) ........

(4) I first discovered these facts on or about.... (date )....

through the following means: .........................................

..............................

(5) This declaration and the attached Objection are presented at the

earliest practicable opportunity after discovery of the facts stated

herein constituting the grounds for disqualification of the said judge.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

DATED: ........, ....

/s/ _______________________________
Attorney for ......................
 

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