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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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This question is for Socrateaser: Id like to know more

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This question is for Socrateaser:

I'd like to know more about the peremptory challenge (PC) process. I had filed the PC on 7/1, expecting the clerk to kick it back to me because of the form I used. I never heard back. At my hearing on 7/10 the judge had my PC then (it was file stamped 7/10) and he denied it as untimely and that I indicated code 170.3 stating that since court had heard issues on 3/28/13, 3/14/12, & 7/11/11 - this is not a cause challenge rather it is a peremptory challenge per 170.6. I know the form was questionable, but I thought I was filing under the correct code, as I had been advised. Please explain the filing process. I don't want to re-file it only to have it presented on the same day as another of my hearings and for it to be deemed "untimely." Thank you. Also, the judge told me I could present it to him orally and he would swear me in and here my PC so I took this to mean that I can re-submit. Am I correct?
Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.

Hello again,

I'm sorry you're having difficulties. California law is very complicated. You may want to restrict your questions to attorneys who are licensed in the jurisdiction.

Anyway, the law boils down to this. A one-time peremptory challenge may be made by a party against a judge pursuant to CCP 170.6 But such challenge is not allowed if the judge has decided a contested fact issue relating to the merits and the party appears in the same proceedings or in a continuation of the proceedings in which the contested fact issue was decided. See Stephens v. Sup.Ct. (Lawrence John Stephens Trust) (2002) 96 CA4th 54, 61.

Since your judge apparently has heard several issues in the case, you cannot disqualify the judge using a peremptory challenge. Your only recourse is to challenge the judge for cause, pursuant to CCP 170.3(c).

Hope this helps.

Customer: replied 1 year ago.

Thanks, XXXXX XXXXX difficult and Ca. Law is very complicated. Here is my confusion: I was told to file the PC under 170.6 by a lawyer I consulted with. I think you then told me it needed to be under 170.3 because the judge had heard issues in the case. And to further complicate this (for me) the judge wrote on the minute order that my form indicated the challenge is per 170.3. This is not a 'cause' challenge, rather, it is a Peremptory Challenge per 170.6...


 


All the info conflicts and all I want to do is get rid of this rotten judge. Please provide the instructions, CCP, and form needed via link if possible. I'm not giving up yet, I don't go down that easy. Stupid-stubborn maybe, but I'm still in this.

Expert:  socrateaser replied 1 year ago.
Ah yes. I just reviewed the relevant previous Q&A session, and I remember you now. You got all twisted around by the previous misinformation you received -- and you're still apparently twisted around.

Our previous Q&A describes the only disqualification option that you have available (click here) -- which is a 170.3(c) cause-based disqualification.

Just because someone here tells you something, doesn't make it true. The judge in your case has effectively confirmed my answer and rejected the other answer(s) you have received here. Those answer(s) were wrong then, and they are still wrong now. No matter how many times you attempt to a peremptory disqualification, you will be rejected, because your judge has already heard a contested matter in your case.

Please review our previous Q&A session, because it explains in detail what you must do to try to remove the judge.

Hope this helps.
Customer: replied 1 year ago.

Please bare with me as I am not trying to be difficult, I'm just trying to get this straight.


1. a) I used a wrong form on two accounts - an LA County stock form for b) Peremptory Challenge referencing 170.3


 


2. The gal with me was to have it court filed - instead put it in the drop box on 7/1 (while I was in hearing) and it ended up stamped 7/10 - day of my hearing. Embarrassing on both counts.


 


3. I now understand I should have filed a Verified Statement of Disqualification of Judge corresponding to 170.3. I accepted your info initially, but I missed the details of your response and added to my own confusion. Thank you for sending links to prior Q&A.


 


 


4. I know your info is/was good. I was further confused by the min order verbiage: http://www.mediafire.com/?tlhyyb8khz7ymkb


but now I get it.


 


5. Lastly, can I file the Verified Statement at any time? Will it be file stamped at the time of filing and will I have to come back for a hearing on it?


 


Thank you.


Melissa


 


 


 

Expert:  socrateaser replied 1 year ago.
Lastly, can I file the Verified Statement at any time?

A: Yes, but the judge's prior rulings will stand, unless it is determined that the judge's bias/impropriety began at some date prior to making a subsequent ruling in a specific matter before the court.

Will it be file stamped at the time of filing and will I have to come back for a hearing on it?

A: The pleading is time stamped when accepted by the clerk. It's legally possible for a judge to order a specific time stamp, but I can't imagine why the judge would do so in your case.

Re another hearing, assuming that your verified statement shows credible evidence that the judge is biased, or acting in some unlawful manner, then the statement and the judge's response, if any, will be sent to a different judge in another county for a determination. That judge can order a hearing, or determine the matter without a hearing. So, it's possible that you may be subjected to another hearing, but it's not guaranteed, one way or the other.

Hope this helps (and, sorry for any confusion).
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 34834
Experience: Retired (mostly)
socrateaser and 5 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. It helps very much. I will ask a new question - regarding part of your response.


 


Thanks, again.

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