BILL NUMBER: AB 1199 CHAPTERED
BILL TEXT
CHAPTER 167
FILED WITH SECRETARY OF STATE JULY 20, 1998
APPROVED BY GOVERNOR JULY 18, 1998
PASSED THE ASSEMBLY JULY 2, 1998
PASSED THE SENATE JUNE 18, 1998
AMENDED IN SENATE JUNE 1, 1998
AMENDED IN ASSEMBLY JANUARY 20, 1998
AMENDED IN ASSEMBLY JANUARY 5, 1998
INTRODUCED BY Assembly Member Alby
(Coauthors: Assembly Members Bordonaro, Honda, Kuehl, Leach,
Margett, Oller, Ortiz, and Pacheco)
FEBRUARY 28, 1997
An act to amend Section 170.6 of the Code of Civil Procedure,
relating to court proceedings.
LEGISLATIVE COUNSEL'S DIGEST
AB 1199, Alby. Court proceedings: disqualification of judges.
Existing law provides that a party to a civil or criminal action
or proceeding may move to disqualify a judge, commissioner, or
referee for prejudice, as specified, including following reversal on
appeal of a trial court decision if the trial judge in the prior
proceeding is assigned to conduct a new trial on the matter. No
party or attorney, however, may make more than one motion to
disqualify in any one action or special proceeding, as specified.
This bill would also provide that a motion to disqualify may be
made following reversal on appeal of a trial court's final judgment
by the party or side that filed the appeal, and would create an
exception allowing that party or side to make this motion without
regard to whether that party or side has made a previous motion to
disqualify for prejudice.
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. (1) No judge, court commissioner, or referee of any
superior or municipal 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 such 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 such
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 five 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
such statement, 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) of this section, 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 such 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, ) PEREMPTORY CHALLENGE
County of __________ ) ss.
_______, 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 _______, 19__.
(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.
(7) 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.
(8) 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.