Bill Text: CA AB1894 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Judges: disqualification.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2010-08-13 - Chaptered by Secretary of State - Chapter 131, Statutes of 2010. [AB1894 Detail]

Download: California-2009-AB1894-Amended.html

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BILL NUMBER: AB 1894	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 15, 2010
	AMENDED IN ASSEMBLY  APRIL 7, 2010

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 amended, 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 civil 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 to
a civil action 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) 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.
   (2) 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 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 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. 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 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 criminal 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.
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. 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 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. If the motion is
directed to a hearing, other than the trial of a cause, the motion
shall be made not later than the commencement of the hearing. In the
case of trials or hearings not specifically provided for in this
paragraph, the procedure specified herein shall be followed as nearly
as 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 in this paragraph at the time and in the manner 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 (4), 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 to a civil action making that motion under this
section shall serve notice on all parties within five days of making
the motion.
   (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. 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.
   (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.
   (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), 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 
 judge, court commissioner, or 
 referee before whom the trial of the (or a 
 hearing in 
 the) 
 action (or special proceeding) is pending (or to 
 whom it is 
 assigned) 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. 
 proceeding). That ____ the judge, court 
 commissioner, or referee before whom the trial of 
 the (or a hearing in the) action (or special 
 proceeding) is pending (or to whom it is 
 assigned) is prejudiced against the party (or his 
 or her attorney) or 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 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)


   (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) A status conference, or similar event, other than a challenge
to the jurisdiction of the court, shall not be required to be
conducted sooner than 30 days after service of the first responsive
pleadings, or 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) 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). Any rule adopted pursuant to this
article 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.