Code of Civil Procedure section 170.1 provides that a judge shall be disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Does the fact that a judge officiates at a wedding of a close relative of the adverse party’s attorney require disqualification?
No, writes the court in Wechsler v. Superior Court citing California Supreme Court authority. When a judge has no personal or social relationship with the attorney and the judge’s only role at the wedding is that of an officiant, disclosure is required but disqualification is not mandated absent additional facts which clearly establish the appearance of bias. [Statutes relating to the disqualifications of judges can be found at Code of Civil Procedure sections 170-170.9.]
If a party dies between the time the court orally grants a judgment of dissolution and the time the court enters a written judgment — does the court lose jurisdiction to enter judgment nunc pro tunc? No, writes the court in Marriage of Martin. Continue reading
The Appellate Division, County of Los Angeles, holds that the trial court must exercise its discretion and consider the merits of a motion for relief from forfeiture made pursuant to Code of Civil Procedure section 1179, where plaintiff has obtained a default judgment in an unlawful detainer action. Continue reading
The Sixth Appellate District concludes, in Nativi v. Deutche Bank, that the Protecting Tenants Against Foreclosure Act of 2009 (scheduled to sunset the end of 2014) causes a bona fide lease for a term to survive foreclosure through the end of the lease term — subject to the limited authority of the immediate successor in interest to terminate the lease, with proper notice, upon sale to a purchaser who intends to occupy the unit as a primary residence. The Act impliedly overrides state laws that provide less protection but expressly allows states to retain the authority to enact greater protections. Bona fide tenancies for a term that continue by operation of the PTFA remain protected by California law.
The Orange County Appellate Division concludes in Huntington Continental v. JM Trust that the Davis-Stirling Common Interest Development Act compels a homeowner’s association to accept and apply partial payments that reduce delinquent assessments owed, but not any other amounts due such as late fees, interest, attorney fees, and costs. This is true even if an action has been commenced to foreclose the lien since there is nothing in the Act precluding the acceptance of partial payments of delinquent assessments once litigation has commenced. Continue reading
Code of Civil Procedure section 685.040 authorizes the court to award a judgment creditor attorney fees incurred in enforcing a judgment if the underlying judgment included an award of fees as costs. Continue reading
The California Supreme Court concludes in Donkin v. Donkin that safe harbor proceedings filed before 2010 are not affected by the repeal of former Probate Code section 21320, which previously authorized safe harbor applications. With respect to substantive questions as to whether a claim triggers a no contest clause, pursuant to Probate Code section 21315, current law is applicable to all instruments which became irrevocable on or after January 1, 2001. Continue reading
I have previously posted: “Papering the Judge: The Rules.” Those rules state that a motion to disqualify a judge pursuant to Code of Civil Procedure section 170.6 (also known as a peremptory challenge) shall be made to the assigned judge or to the presiding judge: failure to follow this rule can be grounds to deny the motion.
How do you fax file a motion to disqualify a judge? The Facsimile Transmission Cover Sheet (MC-005) must include processing instructions as a separate attachment, indicated by a check mark at Paragraph 2. The processing instructions must clearly indicate the specific judge to which the Affidavit of Prejudice is directed. For example: Please immediately direct this Affidavit of Prejudice to assigned Judge [Name ] in Department XX.
In Fry v. Superior Court the fax-filing cover sheet failed to direct the affidavit to any particularly judge and therefore the motion to disqualify was properly denied because it was not directed to either the assigned or presiding judge.
Final judgments are appealable. Some orders are appealable. The time to appeal is jurisdictional. If you appeal from an order or judgment too late, your appeal must be dismissed. California Rules of Court, Rule 8.104 sets forth the time to appeal in an unlimited civil case. The general rules for time to appeal are as follows: One must file the appeal on or before the earliest of the following: Continue reading
In law school we learned the value of reading dissenting opinions. If you have ever wondered what “abuse of discretion” means and how to convince an appellate judge that a trial court abused its discretion – or how to convince a trial judge in the first instance how discretion should be exercised – this concurring and dissenting opinion by Justice Rubin in Gaines v. Fidelity National Title is worthwhile reading. The bookmark is at page 27.