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  1. #1

    Default Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    My question involves a traffic ticket from the state of: CA

    Filed a 170.6 yesterday. Today, a judge (assigned to a court different than where my trial will be held) DENIED my Peremptory Challenge. No reason for the denial appears on my court's website. Her order was apparently mailed to me today. But, of course, I won't have her written decision until AFTER my trial.

    Female judge who issued the denial is NOT a presiding judge. So why was my challenge of a male judge (working out of a different court) sent to her for review?

    Also, there's NO basis for the denial. If timely, a 170.6 is automatic.

    Now I'm stuck with my original judge tomorrow. (And, of course, he knows that I "booted" him).

    When I appear before him, I'll ask for a continuance, claiming I need time to petition an appellate court for writ of mandate. (I know it's something rarely granted. But I want to seek one anyway).

    Naturally, my request will be DENIED, even though I have just 10 days to demand a writ, and even though a 170.6 is generally NOT reviewable by traditional appeal. I've claimed he's prejudiced against me. So I will refuse to let him hear my case until AFTER an appellate court grants/denies review of that bullsh** 170.6 ruling.

    Any advice?

    "It is well recognized that in enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is 'automatic' in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.] ... When the affidavit is timely and properly made, immediate disqualification is mandatory. (Jacobs v. Superior Court, ... 53 Cal. 2d 187, 190. ...) Hence, [the court] was bound to accept proper affidavits without further inquiry. ..." (McCartney v. Commission on Judicial Qualifications, 12 Cal. 3d 512, 531-532 [116 Cal. Rptr. 260, 526 P.2d 268].) (See also Johnson v. Superior Court, 50 Cal. 2d 693, 698 [329 P.2d 5], and Pappa v. Superior Court, 54 Cal. 2d 350, 354 [5 Cal. Rptr. 703, 353 P.2d 311].)

    https://law.justia.com/cases/califor...3d/47/408.html

  2. #2
    Join Date
    Jan 2006
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    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    You filed for the disqualification yesterday and your trial is tomorrow


    i haven’t looked to check on any time frame but that surely sounds like your request wasn’t filed in a timely manner.

    You can seek a continance. Unless your filing was timely, I wouldn’t expect the motion to be granted

  3. #3

    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    Quote Quoting jk
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    You filed for the disqualification yesterday and your trial is tomorrow


    i haven’t looked to check on any time frame but that surely sounds like your request wasn’t filed in a timely manner.

    You can seek a continuance. Unless your filing was timely, I wouldn’t expect the motion to be granted
    On 7-30-18, my court assigned a judge to my case "for all purposes, leaving FEWER THAN 10 days between the assignment to my judge "for all purposes" & my court date. Therefore, I should've been allowed to file a 170.6 up until a day after my trial date (although filing AFTER my trial date would've been idiotic, assuming I had appeared before my current judge).

    A "5-day-before-trial-date" rule exists for a case where a judge is NOT assigned "for all purposes." (This rule doesn't apply to my case, however, since my court's website shows my judge assigned to my case "for all purposes").

    http://leginfo.legislature.ca.gov/fa...6.&lawCode=CCP

  4. #4
    Join Date
    Jan 2006
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    38,867

    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    Since the other judge did not justify their reason for denying the request for disqualification, I would suggest seeking reconsideration on that point. If denied, then seek a continuance.

    I woild still suggest being as prepped for trial as you can be. You may have to proceed with the trial and appeal any negative decision.

  5. #5

    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    As a rule, a 170.6 denial must be by "writ of mandate." (Some very narrow exceptions exist. But they're tricky, and , therefore, generally handled by an appellate lawyer who specializes in this area of law). Tomorrow, I CANNOT ask for a reconsideration, since it's NOT available at a district-court level.

    I can do one of three things.

    ONE: Ask for a continuance, so that I can file a writ of mandate. If a continuance were denied, I could participate in my trial. But I think this is a BAD IDEA, since I'd be undermining my claim of prejudice. If you though a judge were "against you," would you let him hear your case BEFORE exhausting another remedy?

    TWO: Accept the 170.6 denial & participate in trial. Again, this undermines my claim of prejudice.

    THREE: Request continuance. If denied, refuse to participate in trial, setting up a basis for appeal of trial verdict (which would most likely be GUILTY). This option is what I'm going to do, since it shows that I STRONGLY BELIEVE judge is prejudiced against me.

  6. #6
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    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    Quote Quoting superXpert
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    THREE: Request continuance. If denied, refuse to participate in trial, setting up a basis for appeal of trial verdict (which would most likely be GUILTY). This option is what I'm going to do, since it shows that I STRONGLY BELIEVE judge is prejudiced against me.
    You can still argue you believe you were prejudiced and present your best case hoping for a positive outcome anyway. There is nothing illogical about that. Instead, you are making full use of the options available to you. If you refuse to participate and you lose (as you likely would since you'd present no defense) then you may end up with an uphill battle to overturn it. If you participate you at least may have shot at winning anyway, and if you lose you basically have the same uphill battle to overturn it.

  7. #7

    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    Quote Quoting Taxing Matters
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    You can still argue you believe you were prejudiced and present your best case hoping for a positive outcome anyway. There is nothing illogical about that. Instead, you are making full use of the options available to you. If you refuse to participate and you lose (as you likely would since you'd present no defense) then you may end up with an uphill battle to overturn it. If you participate you at least may have shot at winning anyway, and if you lose you basically have the same uphill battle to overturn it.
    On my cover sheet for my Trial De Novo request, I asked for a trial date in early September. But court subsequently notified me on 8-1-18 (by mail) that my trial was on 8-8-18. I then called court on 8-1-18, requesting a continuance. But a court clerk said she couldn't grant one. She then told me to fax a request to judge assigned to my case. Afterwards, I faxed my request to him on that same day (8-1-18). He then DENIED my request, claiming it was "untimely," despite receipt of it on same day that I had received my paper notice of trial date. RIDICULOUS!

    I then had a friend mail an Informal Discovery Request to my DA on 8-2-18. But, as of 8-7-18, neither DA nor CHP has sent me any discovery. (Of course, I did NOT serve CHP. But technically my DA was to ask CHP for whatever it had).

    Both my Informal Discovery Request & My Proof of Service are on file with court (or should be, since I faxed both documents on 8-2-18).

    So, if my judge were to DENY my request for a continuance for a Writ of Mandate, I'd subsequently request a continuance for lack of discovery.

    Without discovery, I'm at a big disadvantage in court. If I participated in my trail, at least I'd have another basis for appeal.

  8. #8
    Join Date
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    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    Quote Quoting superXpert
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    why was my challenge of a male judge (working out of a different court) sent to her for review?
    How should we know? And why do these judges' genders matter?

    Quote Quoting superXpert
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    I've claimed he's prejudiced against me.
    Is there any truth to your claim, or are you just engaging in procedural gamesmanship?

    Quote Quoting superXpert
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    Any advice?
    I suggest you read the disclaimer at the bottom of the page.

    Absent more relevant information, it sounds like you're just playing games and, if you have no valid defense to the ticket, you should see if traffic school is still a possibility.

  9. #9

    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    UPDATE:

    TLDR: Got a new judge. Also granted a continuance until early September.

    Went to court.

    Got to wait, while judge heard several other cases.

    Didn't initially recognize my cop, as he had put on a few pounds. But his name was eventually called, before he testified in several other cases before mine (Lots of problems with his testimony. But he wasn't called out. Even lawyers let him slide. Except for cutting deals, the lawyers I saw were virtually worthless. Their cross-examinations were WORSE than what I'd expect from a Pro Per who had read How to Beat Your Ticket).

    Went before judge. Said "I believe my 170.6 challenge was both proper & timely. Because denial was in error, I'd like a continuance, so that I can request a writ of mandate."

    He looked at my 170.6, saying that it was NOT "timely."

    Then I said, "It was timely, since there were fewer than 10 day between my request for a Trial De Novo & notice of my trial date."

    He then said, "You've already had 18 days."

    I said, "There aren't 18 days between X-XX-XXXX & today."

    Then he said, "Oh right, sorry. Ok, I'm assigning you to Dept. XX for trial today."

    Cop & I went there.

    I then explained to new judge that DA hadn't responded to my Informal Discovery Request. And I explained that there hadn't been enough time for the DA to respond, since my trial date was <10 days after my TDN request.

    Afterwards, judge looked at my IDR & Proof of Service. Then he said, "Yea, you weren't given enough time. How much time do you need?"

    I said "30 days."

    Then he said, "Are you willing to waive time?"

    I said, "No"

    Then he said, "You can't have it both ways."

    I said, "I believe that a 30-day continuance would still fall within my 45-day window."

    Then he assigned me a court date in early September, and told me to serve CHP.

    Cop will show up AGAIN, as he was granted a new subpoena. Also, he was on VACATION today. Yet he STILL appeared. FML!

    EDIT: In CA, 25 over = Eligibility for traffic school (Just realized this....Previously thought eligibility was <20 mph over). Therefore, I might call cop's station, asking whether he'd be ok with my pleading "no contest" to a 22356 (95/70).

    Quote Quoting pg1067
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    How should we know? And why do these judges' genders matter?



    Is there any truth to your claim, or are you just engaging in procedural gamesmanship?



    I suggest you read the disclaimer at the bottom of the page.

    Absent more relevant information, it sounds like you're just playing games and, if you have no valid defense to the ticket, you should see if traffic school is still a possibility.
    I mentioned "gender" for clarity.

    A 170.6 does NOT require "truth" or "proof." All that's necessary is a "good faith belief." If you "swear" to a "good faith belief" that your assigned judge is prejudiced against you, & you submit a timely motion, your request is supposed to be granted AUTOMATICALLY.

    Yes, I am just playing games, as it's tough to beat a ticket for >110/70, without resorting to procedural shenanigans.

    I just realized that a 95/70 QUALIFIES for traffic school. If my chippy were to "green light" my proposal, I'd most likely plea bargain my way out of this mess.

  10. #10
    Join Date
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    Default Re: Judge Denied My Peremptory Challenge (170.6) of Judge Assigned to My Case

    Quote Quoting superXpert
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    Cop will show up AGAIN, as he was granted a new subpoena. Also, he was on VACATION today. Yet he STILL appeared. FML!
    I don't know if you realize it, but that court appearance earned the officer an additional $303 on top of his day's pay for vacation. Bless you my son. You just helped make his next car payment.

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