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
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
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.
It is fundamental that a judgment of a sister state must be given full faith and credit if that sister state had jurisdiction over the parties and the subject matter, and all interested parties were given reasonable notice and opportunity to be heard. To fulfill this mandate in California a sister state or foreign money judgment may be registered and enforced pursuant to the Sister State and Foreign Money-Judgment Act (SSFMJA) codified at Code of Civil Procedure sections 1710.10-1710.65. Continue reading
Unemployment Insurance Code section 1960 provides that any finding, judgment, or final order of the Unemployment Insurance Appeals Board shall not be used as evidence in any separate or subsequent action or proceeding between an employee and present or prior employer.
In Kurz v. Syrus Systems the Court of Appeals held that section 1960 operated as a bar to the maintenance of a cause of action for malicious prosecution in a cross-complaint Kurz’s prior employer asserted against Kurz. The offending cause of action alleged that Kurz had maliciously prosecuted a meritless claim for unemployment insurance benefits that terminated in Syrus’s favor when the claim was denied and the denial was upheld on appeal by a decision of the Board. Continue reading
Code of Civil Procedure section 437c governs the service and contents of motions for summary judgment and summary adjudication. The times specified for filing and service have been held to be jurisdictional in the sense that lack of proper notice defeats the motion. Continue reading
There is a right to a jury trial in an unlawful detainer action, unless waived. A waiver may occur pursuant to Code of Civil Procedure section 631 only by:
1) Failure to timely demand a jury trial;
2) Failure to appear at trial;
3) By written consent;
4) By oral consent in open court, entered in the minutes;
5) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation;
6) By failing to pay jury fees as required by statute. Continue reading
Revenue and Taxation Code § 23301 provides that the corporate powers, rights and privileges of a domestic taxpayer may be suspended if it fails to pay any tax, penalty, or interest that is due and payable to the Franchise Tax Board. Except for filing an application for tax-exempt status or amending the articles of incorporation to establish a new corporate name, a suspended corporation is disqualified from exercising any right, power or privilege. Continue reading
A trustee is required to provide notice to heirs and beneficiaries when all or part of a revocable trust becomes irrevocable due to the death of a settlor pursuant to Probate Code section 16061.7. Under Probate Code section 16061.8 any action contesting the trust must be filed within 120 days from the date the notification by trustee is served upon the contestant “or 60 days from the day on which a copy of the terms of the trust is mailed or personally delivered to him or her during that 120-day period, whichever is later.”
Does Code of Civil Procedure section 1013 (which extends time for service by means other than personal delivery) apply to section 16061.8? No. A petition filed past the limitations period is untimely and a demurrer to the petition is properly sustained without leave to amend. Bridgeman v. Allen.
Peremptory challenges of a trial judge are governed by Code of Civil Procedure section 170.6. The section permits a party to an action to summarily disqualify a judge based on a sworn statement of the party’s belief that the judge is prejudiced against that party or the party’s attorney.
Provided the statement is timely and in proper form, the judge has no discretion and must accept the challenge. The right to disqualify a judge under section 170.6 is automatic in the sense that a good faith belief in prejudice is sufficient – no showing of actual prejudice is required. In common parlance the use of an affidavit pursuant to section 170.6 is known as “papering the judge.” Continue reading