Code of Civil Procedure 170.6 provides the statutory basis to disqualify a judge from hearing a proceeding. A peremptory challenge is usually made by filing an affidavit or declaration under penalty of perjury that the judge is prejudiced against a party or attorney for a party using a locally approved form.
If the affidavit is duly presented (timely), no further act or proof is required and a new judge must be assigned, except that no party or attorney shall be permitted to make more than one such motion in any action or proceeding, and if there are multiple plaintiffs or defendants, only one motion for each side may be made.
What about the circumstance where an appeal is taken from a judgment or interim order? In that circumstance, section 170.6 provides that a successful party on appeal may exercise a second peremptory challenge provided the appeal is from a final judgment, but not if the appeal is from an interim order.
The case is McNair v. Superior Court (National Collegiate Athletic Assn.): “…[W]e hold that Code of Civil Procedure section 170.6, subdivision (a)(2) allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision.”
Welfare and Institutions Code section 15634 in the Elder Abuse and Dependent Adult Civil Protection Act provides mandated reporters absolute immunity from false arrest claims that stem from the duty to report suspected financial abuse of an elder, including the act of signing a citizen’s arrest form. The case is Santos v. Kisco Senior Living.
In Yvanova v. New Century Mortgage Corpthe California Supreme Court held that in a case where a homeowner alleges a nonjudicial foreclosure sale was wrongful because of a void assignment, the homeowner has standing to sue for wrongful foreclosure.
In Sciarratta v. U.S. Bank National Association the question of “prejudice” left open in Yvanova was decided. Where a homeowner alleges foreclosure by one with no right to do so, do such allegations alone establish the requisite prejudice or harm necessary to state a cause of action for wrongful foreclosure? Or instead, to adequately plead prejudice, does the plaintiff-homeowner have to allege the wrongful foreclosure interfered with his or her ability to pay on the debt, or lead to a foreclosure that would not have otherwise occurred? Continue reading →
There is no federal or state constitutional right to maintain the privacy of tax returns. However, California courts have interpreted state taxation statutes as creating a statutory privilege against the disclosure of tax returns. The purpose is to encourage voluntary filing of tax reporting of income and thus to facilitate tax collection.
The privilege is not absolute. It will not be upheld in three situations: when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. This last exception is narrow and applies only “when warranted by a legislatively declared public policy.” Continue reading →
The California Supreme Court holds that where a plaintiff’s injury results from alleged negligence in the use and maintenance of equipment needed to implement a physician’s order concerning plaintiff’s medical treatment, the claim sounds in professional, rather than ordinary, negligence. The special statute of limitations period “for injury or death against a health care provider based upon such person’s alleged professional negligence” is applicable.
Generally, a personal injury action generally must be filed within two years of the date on which the challenged act or omission occurred. [Code Civ. Proc., § 335.1.] However, unlike most personal injury actions, professional negligence actions against health care providers must be brought within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” [Code Civ. Proc., § 340.5.]
The facts of any particular case for personal injury against a health care provider will determine whether the statute of limitations is lengthened, or shortened, by this holding. The case is Flores v. Presbyterian Intercommunity Hospital.
In Glaski v. Bank of America, the appellate court held a borrower may base a wrongful foreclosure claim on allegations that the foreclosing party acted without authority because the assignment by which it purportedly became beneficiary under the deed of trust was not merely voidable but void. Subsequent appellate court opinions, for a variety of reasons, refused to follow Glaski.
In Yvanova v. New Century Mortgage the California Supreme Court considered the narrow question, considered in Glaski, of whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void. Continue reading →
Code of Civil Procedure section 473, subdivision (b), contains the attorney-fault provision for relief from default which provides “…the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Relief under the statute is mandatory if the conditions are fulfilled. The motion is timely if filed within six months of the entry of default judgment or dismissal. Due diligence is not required. Nor is it necessary for the attorney attesting to mistake, inadvertence, surprise or neglect be attorney of record for the party requesting relief. The statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal. Continue reading →
It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. Continue reading →
What is the statute of limitations on a promissory note? The statute of limitations for an action upon any contract, obligation or liability founded upon an instrument in writing is four years from breach per Code of Civil Procedure section 337. However, Commercial Code section 3118(a) provides a six-year statute of limitations for “an action to enforce the obligation of a party to pay a note payable at a definite time.” The period runs from “the due date or dates stated in the note.” Continue reading →
The California Supreme Court holds that Code of Civil Procedure section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, governs renewed applications for mandatory relief under Code of Civil Procedure section 473, subdivision (b), for relief from default based on an attorney’s “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”
Section 1008 requires a party filing a renewed application to submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier. [See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC.]
Mr. Daymude consults with clients and accepts cases involving relief from default and default judgments, including those based upon an attorney’s mistake, inadvertence, surprise, or neglect. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.