BILL ANALYSIS
AB 1894
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1894 (Monning) - As Introduced: February 16, 2010
Proposed Consent (As Proposed To Be Amended)
SUBJECT : Judges: Disqualification
KEY ISSUE : Should the time frame for making a peremptory
challenge to a judge be extended from 10 to 15 days in order to
clarify discrepancies in existing law?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial measure is sponsored by the Consumer
Attorneys of California, but is nonetheless a product of rare
consensus between the Consumer Attorneys and the California
Defense Counsel. Under existing law any party has a right to
make a peremptory challenge to a judge assigned to his or her
case so long as the motion to exercise the challenge is made
within 10 days of the all purpose assignment of a judge.
However, a more recently enacted statute gave parties in
so-called "fast track" (or delay reduction) cases 15 days to
make the motion in "direct calendar" and 10 days to make the
motion in "master calendar" courts. In practice, these two
statutes often create confusion as to the whether a 10-day or
15-day period applies, depending upon whether the case is
designated "fast track" and upon the type of court calendar. In
order to eliminate confusion, this bill would create a uniform
15-day period for all civil cases. Criminal cases would
continue to be subject to the 10-day period. In addition, this
bill would require a party making a challenge to serve notice on
all other parties no later than five days after making the
motion. This change would codify existing practice. This
analysis reflects amendments that the author has agreed to take
in this Committee. There is no known opposition to this bill.
SUMMARY : Extends, for civil cases only, the time period for
moving to disqualify a judge for prejudice from 10 to 15 days
and requires the party challenging the judge to notify all other
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parties within five days of making the motion.
EXISTING LAW :
1)Permits any party or any attorney appearing in a civil or
criminal matter to make a motion challenging a superior court
judge, commissioner, or referee that is assigned to the
matter. Specifies that the motion, which may be written or
oral, must be supported by an affidavit or declaration made
under penalty of perjury that the assigned judge,
commissioner, or referee is prejudiced against the party or
attorney and therefore cannot give the party or attorney a
fair and impartial trial or hearing. (Code of Civil Procedure
Section 170.6.)
2)Provides that the motion described above must be made to the
assigned judge or the presiding judge within 10 days after the
all purpose assignment, or if the party has not yet appeared
in the action, then within 10 days after appearance. (Code of
Civil Procedure 170.6 (a)(2).)
3)Provides, under the Trial Court Delay Reduction Act, that in a
case subject to delay reduction rules the time for challenging
the assignment of a judge, commissioner, or referee shall be
exercised, in direct calendar courts, within 15 days of the
party's first appearance, whereas challenges made in master
calendar courts shall be made within the 10-day period
provided in Section 170.6 of the Code of Civil Procedure.
(Government Code Section 68816 (i).)
COMMENTS : This non-controversial measure, which is sponsored by
the Consumer Attorneys of California, seeks to reconcile two
statutes that have apparently created confusion surrounding the
appropriate time frame in which a party may challenge the
assignment of a particular superior court judge, commissioner,
or referee (hereafter "judge") in a civil case. Under existing
law any party or any attorney has a right to make a peremptory
challenge to the judge assigned to the case. The motion to
challenge, which can be made orally or in writing, must be
supported by an affidavit and declaration stating that the party
or attorney believes that the assigned judge is prejudiced
against the party or attorney to such an extent that the party
or attorney will be denied a fair and impartial trial. The
party or attorney does not need establish the facts showing this
prejudice, but only needs to attest under penalty of perjury his
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or her belief that the judge is prejudiced. Under the Code of
Civil Procedure, the motion to exercise the challenge must be
made within 10 days of the all purpose assignment.
However the Trial Court Delay Reduction Act of 1990 (Government
Code Section 68600 et seq.) creates a special rule for cases
subject to the Act to delay reduction rules (so-called "fast
track" cases). Under the Act, the time frame for making a
motion to challenge the assignment of the judge is 15 days if it
is in a "direct calendar" court and 10 days if it is a "master
calendar" court. In practice, the different code provisions can
create confusion as to the whether a 10-day or 15-day period
applies - depending as it does on whether the case is designated
"fast track" and whether it is in a "direct calendar" or "master
calendar" court. In order to eliminate the confusion, this bill
would create a uniform 15-day period for all civil cases.
Criminal cases would continue to be subject to the 10-day
period. This bill would delete the provision in the Trial Court
Reduction Act that creates the 10- and 15-day distinction, as
this will no longer be necessary since all civil cases will be
subject to the 15-day rule.
In addition, this bill will codify existing court practice by
requiring the party making the challenge to notify all other
parties within five days after making the motion.
ARGUMENTS IN SUPPORT : According to the sponsor, Consumer
Attorneys of California (CAOC), the 15-day time frame created in
the Government Code for certain "fast track" cases "has been
drafted in a way that has led to a great deal of confusion."
CAOC believes that this measure will eliminate this confusion by
putting all language regarding peremptory challenges in Section
170.6 of the Code of Civil Procedure and by creating a uniform
15-day period for all civil cases. In short, this measure "will
simplify the law and avoid traps for unwary litigants." The
California Employment Lawyers Association and the California
Defense Counsel support this bill for substantially the same
reasons.
REGISTERED SUPPORT / OPPOSITION :
Support
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Consumer Attorneys of California (sponsor)
California Defense Counsel
California Employment Lawyers Association
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334