BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1894 (Monning)
As Amended June 10, 2010
Hearing Date: June 22, 2010
Fiscal: No
Urgency: No
SK:jd
SUBJECT
Judges: Disqualification
DESCRIPTION
This bill would extend, for civil cases only, the time period
for making a motion to disqualify a judge from 10 to 15 days.
This bill would also provide that a party making a motion to
disqualify a judge must serve notice on all parties no later
than five days after making the motion.
BACKGROUND
Existing law, Code of Civil Procedure Section 170.6, permits a
party in an action to bring a motion to disqualify a judge and
requires that such a motion be in the proper form and meet
specified timeframes. For example, a motion to disqualify a
judge must be made by a party within 10 days of the all purpose
assignment of a judge or, if the party has not yet appeared in
the action, within 10 days of the appearance. Under Government
Code Section 68616(i), however, in a direct calendar court,
challenges to a judge shall be exercised within 15 days of the
party's first appearance.
This bill would repeal the 15-day time frame in Government Code
Section 68616(i) and extend the time frame under Code of Civil
Procedure Section 170.6 to 15 days from 10 days in civil cases
only.
CHANGES TO EXISTING LAW
1.Existing law provides that a judge has a duty to decide any
(more)
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proceeding in which he or she is not disqualified, and
provides that a judge shall be disqualified in certain
instances. (Code Civ. Proc. Secs. 170, 170.1.)
Existing law provides that a judge may not try a civil or
criminal action when it is established that the judge is
prejudiced against a party or attorney or the interest of a
party or attorney appearing in the action or proceeding.
(Code Civ. Proc. Sec. 170.6(a).)
Existing law provides that a party or an attorney appearing in
an action 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 is prejudiced against a party or attorney, or the
interest of the party or attorney, so that the party or
attorney cannot or believes he or she cannot have a fair and
impartial trial or hearing before the judge. (Code Civ. Proc.
Sec. 170.6(a).)
Existing law specifies that if the motion to disqualify a judge
is duly presented and timely, the judge supervising the master
calendar shall assign another judge to the matter. A party is
limited to one such peremptory challenge, except as specified.
(Code Civ. Proc. Sec. 170.6(a)(3).)
Existing law specifies the time period in which a motion to
disqualify a judge must be made and provides that in a trial
that has been assigned to a judge for all purposes, the motion
must be made to the assigned judge or the presiding judge by a
party within 10 days after notice of the assignment or, if the
party has not yet appeared in the action, then within 10 days
of the appearance. (Code Civ. Proc. Sec. 170.6(a)(2).)
This bill would extend, for civil cases only, the
above-described time period from 10 days to 15 days for making
a motion to disqualify a judge.
This bill would provide that a party to a civil action making a
motion to disqualify a judge shall serve notice on all parties
no later than five days after making the motion.
2.Existing law , the Trial Court Delay Reduction Act, provides
that, notwithstanding Code of Civil Procedure Section 170.6,
in direct calendar courts, challenges to a judge shall be
exercised within 15 days of the party's first appearance.
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(Gov. Code Sec. 68616(i).)
This bill would repeal this provision.
COMMENT
1. Stated need for the bill
The author writes:
Under the current law, the time frames prescribed for
exercising a peremptory challenge are included in [Section]
170.6 which dictates a 10-day time frame in which a party may
exercise a peremptory challenge. Government Code [Section]
68616(i) is an exception to the rule, and gives parties 15
days to exercise a peremptory challenge in "fast track" cases.
However, Gov. Code [Section] 68616(i) was drafted in a way
that has led to a great deal of confusion. This bill will
eliminate that confusion by putting all language regarding
peremptory challenges of judges within [Section] 170.6, and
repealing Gov. Code [Section] 68616(i). In addition,
[Section] 170.6 will allow a 5 day time frame in which an
attorney or party can exercise a peremptory challenge. This
will simplify the law, which will avoid traps for unwary
litigants.
Co-sponsor Consumer Attorneys of California write that the
measure will "require service of notice on all parties once the
peremptory challenge is made. This will codify already existing
practices and ensure that all parties are fully informed
throughout the litigation process."
The California Defense Counsel, co-sponsor, asserts that the
bill's clarifications of the time frames for making a motion to
disqualify a judge and the notice provisions are "common-sense
improvements to the law which will benefit litigants, lawyers,
and the courts."
2. Time frames for exercising a peremptory challenge of a judge
This bill would extend, for civil cases only, the time period
for making a motion to disqualify a judge from 10 to 15 days.
This bill would not change the current 10-day time frame for
criminal cases. Under existing law, a motion to disqualify a
judge must be made by a party within 10 days of the all purpose
assignment of a judge or, if the party has not yet appeared in
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the action, within 10 days of the appearance. Government Code
Section 68616(i), however, provides for an exception to this
10-day time frame for cases subject to that Act (often called
"fast track" cases). Instead, Section 68616(i) specifies that,
in a direct calendar court, a motion to disqualify a judge shall
be exercised within 15 days of the party's first appearance.
The co-sponsors of this bill assert that the time frames
contained in these two statutes have "led to a great deal of
confusion." As an example, CAOC points to a legislative
proposal, which this bill implements, put forward by the State
Bar's Committee on Administration of Justice which noted that
courts have created inconsistent rules for measuring the time to
file a challenge to a judge, and stated:
The 15-day period under Government Code Section 68616(i) to
file a challenge to a direct calendar judge in certain
circumstances not expressly contemplated by the statute begins
to run either (1) on the date of the assignment, under Fight
for the Rams, supra, 41 Cal.App.4th 953; (2) on the date of
receipt of notice of the assignment, under Cybermedia, supra,
72 Cal.App.4th 910; or (3) on the date of service of notice of
the assignment (plus five days for service by mail), under
Motion Picture, supra, 88 Cal.App.4th 488. In contrast,
Stubblefield suggests that Government Code Section 68616(i) is
inapplicable if the judge was assigned after the date the
complaint was filed, and that Code of Civil Procedure Section
170.6(a)(2) governs in those circumstances, so that any
challenge must be filed within 10 days after the notice of
assignment or, if the moving party has not appeared as of that
date, within 10 days after the party's appearance.
As a result, this bill would create one uniform time frame for
making a motion to disqualify a judge in civil cases. The bill
would create that uniform standard by repealing the 15-day time
period in Government Code Section 68616(i) and would instead
provide that in a civil trial that has been assigned to a judge
for all purposes, the motion must be made by a party within 15
days after notice of the assignment or, if the party has not yet
appeared in the action, then within 15 days of the appearance.
In addition to creating a uniform standard for all civil cases,
the bill would also revise the rules applicable to fast track
cases by requiring that the motion must be made within a
specified time frame linked to the assignment rather than a time
frame linked to the party's first appearance.
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Supporter Judicial Council notes that creating a uniform time
frame in civil cases "makes sense, especially since the 15-day
timeline currently applies in most jurisdictions throughout the
state."
3. Providing notice to all parties in the case
This bill would also provide that a party making a motion to
disqualify a judge must serve notice on all parties no later
than five days after making the motion. Existing law does not
currently require that notice of a motion to disqualify a judge
be provided to the other parties in the case. According to
co-sponsor Consumer Attorneys of California, this provision of
the bill codifies existing practices.
Support : Judicial Council; California Employment Lawyers
Association
Opposition : None Known
HISTORY
Source : California Defense Counsel; Consumer Attorneys of
California
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 73, Noes 0)
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