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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 29268
Experience:  29 years in civil, probate, real estate, elder law
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California Procedure: DOES A MOTION FOR JUDICIAL RECUSAL PURSUANT

Resolved Question:

California Procedure: DOES A MOTION FOR JUDICIAL RECUSAL PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 170.6 EXTEND THE 30 DAY TIME PERIOD TO RESPOND TO A COMPLAINT? CCP 170.6 DOES NOT REQUIRE CAUSE, IT IS PREMEMTIVE AND AUTOMATICALLY GRANTED. IT IS BEING FILED BEFORE THE FIRST APPEARANCE IN THE CASE--SO, DOES THAT EXTEND TIME WHILE THE ASSIGNMENT TO A NEW JUDGE IS TAKING PLACE?
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

RayAnswers :

Thanks for your question and good evening to you.

RayAnswers :

No you can make the complaint here but you need to file your response to the complaint as well.These are sort of apples and oranges.The motion for recussal here is whether the original judge is going to hear the case or be recused.It does not affect the law suit itself and the need to respond to it timely.Here are the rules that govern responding here.Whatever judge ultimately hears the matter will look to see that you responded timely to the suit itself as well.

RayAnswers :

Reference to the rules.

RayAnswers :

430.40. (a) A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint. (b) A party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer

RayAnswers :

More for you..

Customer:

Got it. I have a motion to strike and demur to file tomorrow. I am also filing my CCP 170.6 challenge and I didn't know if I had to file my response given the 170.6 challenge.

RayAnswers :

I wish you good luck here.It sounds like you have a good grasp on it all.Honestly it is hard to win a motion for recusal.I hope you are one of hte luck ones.Thanks so much for letting me help you.

RayAnswers :

Have a happy new year .

RayAnswers :

If you can leave a positive rating it is much appreciated.

Customer:

CCP 170.6 is automatic. It is automatically granted. Can do it only once.

RayAnswers :

It may get you a more favorable court and judge here I hope.

RayAnswers :

Rule for reference

RayAnswers :

(a)(1)No judge, court commissioner, or referee of any superior court of the State of California shall try any 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 established as hereinafter provided that the judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in the action or proceeding.


(2)Any party to or any attorney appearing in any 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 judge, court commissioner, or referee before whom the action or proceeding is pending or to whom it is assigned is prejudiced against any 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 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 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 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 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 judge, court commissioner, or referee entertain the motion if it be made after the drawing of the name of the first juror, or if there be 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 herein specifically provided for, the procedure herein specified shall be followed as nearly as may be. 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 at the time and in the manner hereinbefore 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)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 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)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)Any affidavit filed pursuant to this section shall be in substantially the following form:















(Here set forth court and cause)



State of California,
County of



?­?



ss.



PEREMPTORY CHALLENGE






















____, 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 ____ the judge, court commissioner, or
referee before whom the trial of the (or a hearing in the) aforesaid
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)



(6)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.

Ray, Lawyer
Category: Legal
Satisfied Customers: 29268
Experience: 29 years in civil, probate, real estate, elder law
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