Procedure to disqualify a judge in California

The procedure to disqualify a judge in California is the topic of this blog post. A party can invoke the procedure to disqualify a judge in specific situations. Examples of these situations which are common include cases where the judge has a financial interest in a party to the legal action such as a judge that owns stock in a big bank or corporation, or cases where a judge has exhibited a clear bias or prejudice against an attorney, party or witness. Note that a party can also disqualify a court commissioner as well as a referee using the same procedure. I want to emphasize that just because a judge has repeatedly ruled against a party does not constitute sufficient evidence by itself to prove bias or prejudice.

Any attorney or party that wishes to disqualify a judge should act at the earliest opportunity after they discover the facts that constitute grounds to disqualify the judge. They must also serve copies of the verified statement and all attachments on each party or their attorney who have appeared in the case and also personally serve copies of this statement and all attachments on the judge, or on his or her clerk, provided that the judge is present in the courthouse or in chambers. See Code of Civil Procedure section 170.1 for more details.   Click here to read the statutes http://leginfo.legislature.ca.gov/faces/codes.xhtml

Code of Civil Procedure section 170.1 lists numerous situations where a judge is considered disqualified but to keep this blog post as brief as possible I will only discuss the two most common examples I have come across.

Code of Civil Procedure section § 170.1 states in pertinent part that a judge is disqualified where, for any reason:

“The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding”. See Code of Civil Procedure § 170.1(a)(3)(A)

“Other persons aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”. See Code of Civil Procedure § 170.1(a)(6)(A)(iii).

Code of Civil Procedure §170.5 states in pertinent part that, “For the purposes of Sections 170 to 170.5, inclusive, the following definitions apply:

(a) “Judge” means judges of the superior courts, and court commissioners and referees.

(b) “Financial interest” means ownership of more than a 1 percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value in excess of one thousand five hundred dollars ($1,500), or a relationship as director, advisor or other active participant in the affairs of a party, except as follows:

(1) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in those securities unless the judge participates in the management of the fund.”

The fact that a judge has a financial interest in a party to a legal action in which they are presiding is grounds for disqualification not to mention the fact that other persons aware of this fact might reasonably entertain a doubt that the judge would be able to be impartial.

A California Court of Appeal has stated that the test is objective in that “The situation must be viewed through the eyes of the … average person on the street” as of the time the motion is brought. United Farm Workers of America v. Sup.Ct. (Maggio, Inc). (1985) 170 Cal. App. 3d 97, 104 (emphasis added).

“The word ‘might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” United Farm Workers of America v. Sup.Ct. (Maggio, Inc.), supra, 170 Cal.App. 3d at p. 104 (emphasis added).

Published cases from the California Courts of Appeal have stated that bias exists when there is evidence showing that a judge is clearly predisposed to a case or a particular issue in a certain way or exhibits bias toward a party. This means prejudging a case or issue before all of the facts and evidence have been presented.

The United States Supreme Court has stated that when a judge exhibits bias and prejudice towards an attorney, party or witness that deprives a party of their right to a fair and impartial adjudicator and also deprives them of the right to a fair trial in a fair tribunal which is a basic requirement of due process.

The Canons of Judicial Ethics also prohibit exhibiting bias or prejudice as well.

Attorneys or parties in California that would like to view a sample 12 page verified statement to disqualify a judge in California containing brief instructions, a sample declaration and memorandum of points and authorities with citations to case law and statutory authority and verification sold by the author of this blog post can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in California civil litigation, california dissolution, California Dissolution of Marriage, california divorce, California evictions, California freelance paralegal, California legal topics, California unlawful detainer, Uncategorized | Tagged , , , , , , | Leave a comment

The Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (FDCPA) is the topic of this blog post. This post will mainly discuss the Federal Fair Debt Collections Practices Act found in Title 15 of the United States Code, section 1692, et seq. although many states, including California have their own version.

One critical difference between the Federal version of the FDCPA and the California version is that the federal version ONLY applies to third-party debt collectors such as collection agencies and their employees and does NOT apply to an original creditor which basically means any company that is collecting their own debts. The California version however applies to anyone who regularly engages in debt collection in the ordinary course of business on behalf of himself or herself or others.

Debtors have certain rights and if they do not know what their rights are they cannot stand up for their rights. I believe in empowering people with legal information that gives them at least a basic knowledge of their rights.

The Federal FDCPA states that third-party debt collectors may not:

Contact a debtor before 8 a.m. or after 9 p.m., unless that debtor has asked them to;

Contact a debtor at work once they have been told not to;

Use threats of violence or harm against a debtor;

Publish a list of names of people who refuse to pay their debts although this information can be legally provided to credit bureaus;

Use obscene or profane language;

Repeatedly use the phone to annoy someone;

Falsely claim that they are attorneys or government representatives;

Falsely claim that the debtor has committed a crime;

Falsely represent that they operate or work for a credit reporting company;

Misrepresent the amount that the debtor owes;

Indicate that papers they send to the debtor are legal forms if they aren’t, or indicate that papers they send to the debtor aren’t legal forms if they are.

Claim that the debtor can be arrested if they don’t pay the debt;

Threaten to seize, garnish, attach, or sell property or wages of the debtor unless they are permitted by law to take the action and intend to do so;

Threaten legal action in cases where doing so would be illegal or if they don’t intend to take the action;

Provide false credit information about a debtor to anyone, including a credit reporting company;

Send anything to a debtor that looks like an official document from a court or government agency if it isn’t;

Use a false company name;

Try to collect any interest, fee, or other charge on top of the amount owed unless the contract that created the debt or state law where the debtor resides allows the charge;

Deposit a post-dated check early;

Take or threaten to take property of the debtor unless it can be done legally;

Contact a debtor by postcard.

Contact a debtor after they have received a letter from the debtor stating that they do not wish to be contacted any further about the debt. The collector can still contact the debtor to confirm there will be no further contact or to advise the debtor of additional actions being taken against the debtor, such as a lawsuit.

Years ago I briefly worked in the Southern California office of a major nationwide debt collection agency and I have personally seen several of their employees cursing and swearing at debtor’s using very obscene and profane language, repeatedly calling debtor’s, threatening to seize personal property of the debtor such as “their precious household goods” as well as calling the debtor at work even though they had been requested not to.

In fact I recently “Googled” the name of that company and discovered that shortly after I resigned the company entered into a settlement and consent decree with the Federal Trade Commission over charges that they repeatedly violated the FDCPA. However I have also dealt with collection agencies that did not violate the FDCPA so I fully realize that not all debt collectors are abusive. As with any other business there are always a few “bad apples.”

Attorneys or parties in California that would like to view a portion of a sample complaint for violations of both the California and Federal Fair Debt Collection Practices Act including brief instructions sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

 

Posted in debt collection abuses, debt collections, debtor's rights, Fair Debt Collection Practices Act, FDCPA | Tagged , , , , , | Leave a comment

Fight California eviction without an attorney

Fight California eviction without an attorney by purchasing the California unlawful detainer (eviction) litigation document package. This package contains over 25 documents including an answer, demurrer, motion to quash, motion to strike, trial brief and more! The documents have a list price of over $395.00 if purchased separately but you can purchase the entire collection for only $69.99 which is a discount of over 65% off compared to the individual list price for each document.

This document package was just updated on December 30, 2014 with over 5 new documents. All of the sample documents are in Microsoft Word format and can be modified for use in most situations.

My name is Stan Burman and I have worked in California and Federal litigation since 1995 and worked in both residential and commercial property management before that so I know the ins and outs of fighting an eviction as I have worked on both the landlord side and the tenant side. I created this package to empower California tenants in asserting their legal rights by fighting eviction.

The sample litigation documents for California unlawful detainer (eviction) cases that are included in this package are:

Affirmative Defenses to an Unlawful Detainer (Eviction) Complaint in California newsletter issues (2) issues included

Answer to Unlawful Detainer Complaint in California newsletter issue

Demurrer to Unlawful Detainer Complaint in California newsletter issue

FREE Legal Research Links for California and Federal law

Motion to Strike Unlawful Detainer Complaint in California newsletter issue

Sample Answer to Unlawful Detainer (Eviction) Complaint in California

Sample California Complaint Against Landlord

Sample California Security Deposit Dispute Letter

Sample Demurrer to Unlawful Detainer (Eviction) Complaint in California

Sample Ex-Parte Application for Extension of Time to Plead in California

Sample Ex-Parte Application for Stay of Execution in California

Sample Ex-Parte Application to Continue Trial Date in California

Sample Ex-Parte Application to Vacate Judgment in California

Sample Motion for Directed Verdict in California

Sample Motion for Judgment under CCP section 631.8 in California

Sample Motion for Judgment Notwithstanding the Verdict in California

Sample Motion for Relief from Lease Forfeiture in California

Sample Motion for New Trial in California

Sample Motion for Summary Judgment in California eviction

Sample Motion to Quash Service for California eviction

Sample Motion to Strike for eviction in California

Sample Motion to Vacate Judgment and Enter Another and Different Judgment under CCP section 663 in California

Sample Opposition to Motion for New Trial in California Eviction

Sample Opposition to Motion for Summary Judgment in California Eviction

Sample Requests for Admission for California Eviction

Sample Requests for Production of Documents for California Eviction

Sample Trial Brief for California eviction

Tenant’s Rights in California

 

California unlawful detainer (eviction) document collection

Posted in California evictions, California legal topics, California unlawful detainer | Tagged , , , , , | Leave a comment

A Rule 201 request for judicial notice

A Rule 201 request for judicial notice in United States Bankruptcy Court is the topic of this blog post. Rule 201 refers to Rule 201 of the Federal Rules of Evidence which both authorizes judicial notice and also specifies which facts may be judicial noticed. Requesting that a court take judicial notice of certain adjudicative facts is an excellent litigation tool if used in the right situations.

Judicial notice can be taken in both United States Bankruptcy Court and United States District Court as Rule 1101(a) of the Federal Rules of Evidence states that the Federal Rules of Evidence apply to proceedings before United States Bankruptcy Judges and Rule 1101(b) further states that the Federal Rules of Evidence apply in Bankruptcy cases.

As an example a court can take judicial notice of its own records and records of other court cases.

Rule 201 states that, “Judicial Notice of Adjudicative Facts

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.”

I want to stress that the party requesting judicial notice of certain adjudicative facts must supply the court with the necessary information in support of their request and should attach copies of any exhibits that support the request for judicial notice. If they fail to do so the court may deny their request.

Attorneys or parties that would like to view a sample request for judicial notice in United States Bankruptcy Court created by the author and available for FREE download in Microsoft Word format can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

Posted in adversary complaint, Bankruptcy Court Adversary Proceedings, Bankruptcy Litigation, Federal Rules of Evidence, Judicial notice under Rule 201, Uncategorized, United States Bankruptcy Court | Tagged , , , , , | Leave a comment

Correct clerical error in a California divorce judgment

A motion to correct clerical error in a California divorce judgment to correct a clerical error under Code of Civil Procedure section 473(d) and Family Code section 210 is the topic of this blog post. This motion is initiated by the filing of a notice of motion or request for order requesting that the court amend the judgment to correct inadvertence or errors in recording the judgment, it cannot be used to contest the intended terms of the judgment. The moving party can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.

A request to correct a clerical error can be filed in any California divorce, legal separation or nullity case as Family Code § 210 states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

This motion is designed to correct clerical errors only and is a limited tool in that it can only be used in certain situations. I do want to point out however that the trial court is given broad discretion in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is critical as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even many years after the case has closed. However a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

The moving party that is seeking to persuade the court that the error was merely clerical must be very be aware of how to properly characterize the error, and be sure that the error is in fact clerical and not judicial.

Again there are many instances in which published California Supreme Court and Court of Appeal decisions have stated an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party’s attorney’s and accountant’s fees when recording a judgment;

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff, and

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective prior to the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree.

Attorneys or parties in California who would like to view a portion of a 13 page sample motion to amend a divorce judgment to correct a clerical error containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Posted in california dissolution, California Dissolution of Marriage, california divorce, California freelance paralegal, law and motion, Uncategorized | Tagged , , , | Leave a comment