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JAN

1 9

2010

*;

A-

CLARKe,

exECUTilf,

OFFICER

SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF LOS ANGELES

GARY

KURTZ,

Plaintiff,

v.A.

J.

WEBERMANDefendant.

CASE NO.

LC084486ORDER STRIKING STATEMENTOFDISQUALIFICATION

On

January

12, 2010

Defendant

filed

a pleading captioned as a

"Peremptory Challenge."

Insofar

as Defendant may have intended the document to be a motion to

disqualify

under section

170.6

of the Code of Civil Procedure, it is untimely and denied. Moreover, "no party or attorney

shall

be permitted to make more than one such motion in any one

action

or special proceedingpursuant to this section." Code of Civil Procedure section 170.6(a)(3). Defendant has alreadyexercised a

170.6

challenge in this matter as to Judge Michael

Harwin.

Notwithstanding what appears to be a captioning error, Defendant clearly intended thepleading

to be a

statement

of

disqualification

for

cause

filed

pursuant

to

Code

of

Civil Proceduresection

170.3(c)(l).

The court treats the pleading as such. The unsigned pleading is not

verified

as

required by the Code, was not properly served, is untimely, and demonstrates on its

face

no

legal

grounds for

disqualification.

Accordingly, it is stricken pursuant to Code of CivilProcedure §170.4, subdivision (b).

1

Order Striking Statement of Disqualification

 

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1. The statement of disqualification is not verified.

Astatementofdisqualification mustbesignedandverified. CodeofCivil Procedure§170.3(c)(l);Code of Civil Procedure § 2015.5. The object of verification is to assure good

faith

in

the

averments

or

statements

of the

party.

H.G. Bittleston

Law and

Collection

Agency

v.

Howard

(1916)

172

Cal.

357, 360;

Silcox

v.

Lang

(1889)

78

Call

18,

122.

Defendant's

unsigned

pleading may not be

considered

verified

in

accordance with

the

provisions

of

C.C.P.

section446(a)

as

required

by

C.C.P. section

170.3(c)(l)

and

section

2015.5.

2.

The

statement

of

disqualification

was not

properly served.

Code

of

Civil

Procedure

§

170.3, subdivision

(c)(l)

requires that

the

statement

of

disqualification "be personally served on the judge alleged to be disqualified, or on his or her

clerk,

provided that the judge is present in the courthouse or in chambers." In this instance there

was

no

personal service

on

either

the

judge

or the

clerk.

Defendant's

proof

of

service

filed

with

the

pleading indicates service by U.S. Mail.

3. The

statement

of disqualification is

untimely.

Code

of

Civil

Procedure

§

170, subdivision

(c)(l)

requires

that

any

statement

of

disqualification must "be presented at the earliest practical opportunity

after

discovery of the

facts

constituting the ground for disqualification." While no specific time period is set

forth

in

Code

of Civil Procedure section 170.3(c), beyond the requirement that statements be

filed

at the

earliest

practical opportunity

after

discovery

of the

facts

upon which

the

grounds

are

based,

it is

clear

that the time period is very short. For example, review of a decision such as this one must

be

perfected within

10

days.

See

Code

of

Civil Procedure section 170.3, subdivision (d).Here,

the

most recent hearing giving

rise to

Defendant's allegation

was on

December

8,

2009.

The

statement

of

disqualification

is

unsupported

by any

justification

that

would

warrant

a

month-long delay in filing. Under these circumstances, the pleading is untimely. By not

filing

atimely motion to disqualify, objections to the assigned judge are waived.

In re

Steven

O.

(1991)229 Cal.App.3d46.

4. Alleged comments attributed

to the

court

are not

disqualifying.

Defendant's

stated grounds

for

disqualification include alleged comments made

by the

2

Order Striking Statement of Disqualification

 

,

1

court

at

hearing

on

December

8,

2009.

The

facts

and

circumstances prompting

a

challenge

for

2 cause must be evaluated in the context of the entire proceeding and not based solely uponisolated

conduct

or remarks.

Flier v. Superior Court

(1994) 23 Cal.App.4th

165.

Where bias isasserted,

"[I]t

mustbe

more than

a

quick flare-up

or

isolated occurrence."

The Rutter

Group,

Civil

Trials

and

Evidence,

page 3-13, citing

In re Buckley

(1973) 10 Cal.3d 237. Evenassuming

that

the statements alleged to have been made by the court were made verbatim asstatedin Defendant's pleading, the court's statement was harmless. A party's

hypersensitive

overreaction to them does not provide a

basis

for disqualification. The test is an objective one,

not

a

subjective

one.

This

objective test

requires

consideration

of the

facts

from

the

standpoint

10

of a

"well-informed,

thoughtful,

and objective

observer,"

and not

that

of a

"hypersensitive,

11

cynical,andsuspicious

person."

United

States

v.

Jordan

(5

th

Cir. 1995)49F.3d 152, 156.

12

A

party's

or an

attorney's belief

as to a

judge's

bias

and

prejudice

is

irrelevant

and not

13

controlling

in a

motion

to

disqualify

for

cause,

as the

test applied

is an

objective one.

United

14

Farm

Workers

of

America

v.

Superior Court

(1985)

170

Cal.App.3d

97,

104;

Stanford

15

University

v.

Superior Court

(1985) 173

Cal.App.3d

403, 408 ("the litigants' necessarily partisan

16

views do not provide the applicable

frame

of reference.") Mere conclusions of the pleader are

17

insufficient.

In re

Morelli

(1970)

11

Cal.App.3d 819, 843;

Urias

v.

Harris Farms, Inc.

(1991)18

234

Cal.App.3d

415, 426.

19

5. The

pleading does not,

on its

face, demonstrate lawful grounds

for

20

disqualification.

21

Bias

and

prejudice

are

never impled.

Gai v.

City

ofSelma

(1998)

68

Cal.App.4th 213,22 219: '"Bias and prejudice are never implied and must be established by clear averments."23

[Citation.]

Indeed, a party's unilateral perception of an appearance of

bias

cannot be a ground24 fordisqualification unlesswe arereadytotolerateasysteminwhich disgruntledordilatory25 litigants can wreak havoc with the orderly administration of dispute-resolving tribunals.'

26

[Citations.]"

Statements of disqualification cannot be based upon hearsay or other inadmissible

27

evidence. See,

United Farmworkers

of

America,

AFL-CIO v.

Superior Court

(1985)

170

28

Cal.App.3d 97,

note

6 at

106.

They may not be based upon inadmissible information

from

theOrder Striking Statement

of Disqualification