BILL NUMBER: AB 1894 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Monning
FEBRUARY 16, 2010
An act to amend Section 170.6 of the Code of Civil Procedure, and
to amend Section 68616 of the Government Code, relating to judges.
LEGISLATIVE COUNSEL'S DIGEST
AB 1894, as introduced, Monning. Judges: disqualification.
Existing law authorizes a party or attorney in an action or
proceeding to move to disqualify a judge, court commissioner, or
referee for prejudice against a party or attorney or the interest of
a party or attorney, as specified. Prejudice may be established by an
oral or written motion without notice supported by affidavit or
declaration under penalty of perjury, or an oral statement under
oath, that the judge, court commissioner, or referee 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. Existing
law specifies the period during which the motion is required to be
made for specified trials and hearings, including, for the trial of a
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 10 days after notice of the all purpose assignment, or
if the party has not yet appeared in the action, then within 10 days
after the appearance.
This bill would require that the supporting affidavit or
declaration under penalty of perjury, or oral statement under oath,
state that the party or attorney is exercising his or her rights
under these provisions. The bill would extend the time period for
making the motion in the trial of a cause that has been assigned to a
judge for all purposes from the 10-day period described above to a
15-day period. The bill would require a party making a motion
pursuant to these provisions to serve notice on all parties within 5
days of making the motion. The bill would make other technical and
conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 170.6 of the Code of Civil Procedure is amended
to read:
170.6. (a) (1) No A judge, court
commissioner, or referee of any a
superior court of the State of California shall not try
any 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
shall be is established as
hereinafter provided in this section that the
judge or court commissioner is prejudiced against any
a party or attorney or the interest of
any a party or attorney appearing in the action
or proceeding.
(2) Any A party to , or
any an attorney appearing in
any , an action or proceeding may establish this
prejudice by an oral or written motion without notice supported by
affidavit or declaration under penalty of perjury , or an
oral statement under oath , that the party or attorney is
exercising his or her rights under this section and that the
judge, court commissioner, or referee before whom the action or
proceeding is pending , or to whom it is assigned ,
is prejudiced against any 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.
Where 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. If directed to the trial of a cause where
there is 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. If directed to the
trial of a 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 10 15 days
after notice of the all purpose assignment, or if the party has not
yet appeared in the action, then within 10 15
days after the appearance. If the court in which the action is
pending is authorized to have no more than one judge ,
and the motion claims that the duly elected or appointed judge of
that court is prejudiced, the motion shall be made before the
expiration of 30 days from the date of the first appearance in the
action of the party who is making the motion or whose attorney is
making the motion. In no event shall any a
judge, court commissioner, or referee entertain the motion if
it be is made after the drawing of the
name of the first juror, or if there be 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. If
the motion is directed to a hearing (other ,
other than the trial of a cause) cause
, the motion shall be made not later than the commencement of
the hearing. In the case of trials or hearings not herein
specifically provided for in this paragraph , the
procedure herein specified herein
shall be followed as nearly as may be
possible . The fact that a judge, court commissioner, or
referee has presided at , or acted in connection with
, a pretrial conference or other hearing, proceeding, or
motion prior to trial , and not involving a determination
of contested fact issues relating to the merits , shall
not preclude the later making of the motion provided for
herein in this paragraph at the time and in the
manner hereinbefore herein provided.
A motion under this paragraph may be made following reversal on
appeal of a trial court's decision, or following reversal on appeal
of a trial court's final judgment, if the trial judge in the prior
proceeding is assigned to conduct a new trial on the matter.
Notwithstanding paragraph (3), the party who filed the appeal that
resulted in the reversal of a final judgment of a trial court may
make a motion under this section regardless of whether that party or
side has previously done so. The motion shall be made within 60 days
after the party or the party's attorney has been notified of the
assignment.
(3) A party making that motion under this section shall serve
notice on all parties within five days of making the motion.
(3)
(4) If the motion is duly presented , and
the affidavit or declaration under penalty of perjury is duly filed
or an oral statement under oath is duly made, thereupon and without
any further act or proof, the judge supervising the master calendar,
if any, shall assign some other judge, court commissioner, or referee
to try the cause or hear the matter. In other cases, the trial of
the cause or the hearing of the matter shall be assigned or
transferred to another judge, court commissioner, or referee of the
court in which the trial or matter is pending or, if there is no
other judge, court commissioner, or referee of the court in which the
trial or matter is pending, the Chair of the Judicial Council shall
assign some other judge, court commissioner, or referee to try the
cause or hear the matter as promptly as possible. Except as provided
in this section, no party or attorney shall be permitted to make more
than one such motion in any one action or special proceeding
pursuant to this section ; and in . In
actions or special proceedings where there may be more than one
plaintiff or similar party or more than one defendant or similar
party appearing in the action or special proceeding, only one motion
for each side may be made in any one action or special proceeding.
(4)
(5) Unless required for the convenience of the court or
unless good cause is shown, a continuance of the trial or hearing
shall not be granted by reason of the making of a motion under this
section. If a continuance is granted, the cause or matter shall be
continued from day to day or for other limited periods upon the trial
or other calendar and shall be reassigned or transferred for trial
or hearing as promptly as possible.
(5)
(6) Any affidavit filed pursuant to this section shall
be in substantially the following form:
(Here set forth court and cause)
State of California,
)) ss. PEREMPTORY CHALLENGE
County of ___________
____, being duly sworn, deposes and says: That
he or she is
a party (or attorney for a party) to the within
action (or special
proceeding). That ____
proceeding), is exercising his or her right
pursuant to
paragraph (2) of subdivision (a) of Section 170.6
of the Code of
Civil Procedure, and is requesting that the
the judge, court commissioner, or
referee before whom the trial of the (or a
hearing in the)
aforesaid
the)
action (or special proceeding) is pending (or to
whom it is
assigned) is prejudiced against the party (or his
or her attorney) or
assigned)
the interest of the party (or his or her
attorney) so that affiant
cannot or believes that he or she cannot have a
fair and impartial
may
not consider any matter therein that involves a
contested issue of law
or fact. The moving party understands that by
duly presenting an
affidavit or declaration under penalty of
perjury, or by making an oral
statement under oath, without any further act of
proof, the judge shall
assign another judge to hear the matter.
trial or hearing before the judge, court
commissioner, or referee
.
Subscribed and sworn to before me this
______ day of ______, 20__.
(Clerk or notary public or other
officer administering oath)
(6)
(7) Any oral statement under oath or declaration under
penalty of perjury made pursuant to this section shall include
substantially the same contents as the affidavit above.
(b) Nothing in this section shall affect or limit Section 170 or
Title 4 (commencing with Section 392) of Part 2, and this section
shall be construed as cumulative thereto.
(c) If any provision of this section or the application to any
person or circumstance is held invalid, that invalidity shall not
affect other provisions or applications of the section that can be
given effect without the invalid provision or application and ,
to this end , the provisions of this section are
declared to be severable.
SEC. 2. Section 68616 of the Government Code is amended to read:
68616. Delay reduction rules shall not require shorter time
periods than as follows:
(a) Service of the complaint within 60 days after filing.
Exceptions, for longer periods of time, (1) may be granted as
authorized by local rule , and (2) shall be granted on a
showing that service could not reasonably be achieved within the time
required with the exercise of due diligence , consistent
with the amount in controversy.
(b) Service of responsive pleadings within 30 days after service
of the complaint. The parties may stipulate to an additional 15 days.
Exceptions, for longer periods of time, may be granted as authorized
by local rule.
(c) Time for service of notice or other paper under Sections 1005
and 1013 of the Code of Civil Procedure , and time to plead
after service of summons under Section 412.20 of the Code of Civil
Procedure , shall not be shortened , except as
provided in those sections.
(d) Within 30 days of service of the responsive pleadings, the
parties may, by stipulation filed with the court, agree to a single
continuance not to exceed 30 days.
It is the intent of the Legislature that these stipulations not
detract from the efforts of the courts to comply with standards of
timely disposition. To this extent, the Judicial Council shall
develop statistics that distinguish between cases involving, and not
involving, these stipulations.
(e) No A status conference, or
similar event, other than a challenge to the jurisdiction of the
court, may shall not be required to be
conducted sooner than 30 days after service of the first responsive
pleadings, or no sooner than 30 days after
expiration of a stipulated continuance, if any, pursuant to
subdivision (d).
(f) Title 4 (commencing with Section 2016.010) of Part 4 of the
Code of Civil Procedure shall govern discovery, except in arbitration
proceedings.
(g) No case may A case shall not be
referred to arbitration prior to 210 days after the filing of the
complaint, exclusive of the stipulated period provided for in
subdivision (d). No Any rule adopted
pursuant to this article may shall not
contravene Sections 638 and 639 of the Code of Civil Procedure.
(h) Unnamed (DOE) defendants shall not be dismissed or severed
prior to the conclusion of the introduction of evidence at trial,
except upon stipulation or motion of the parties.
(i) Notwithstanding Section 170.6 of the Code of Civil Procedure,
in direct calendar courts, challenges pursuant to that section shall
be exercised within 15 days of the party's first appearance. Master
calendar courts shall be governed solely by Section 170.6 of the Code
of Civil Procedure.