Thursday, May 4, 2017

Dependency Prelim Isn’t Determination of Fact that Precludes § 170.6 Strike

Johnny W. v. Superior Court, No. A150579 (D1d1 Mar. 9, 2017)

Code of Civil Procedure § 170.6 permits a party to strike a trial judge by filing an “affidavit of prejudice.” The affidavit purports to attest that the party has reason to believe the judge is prejudiced. No further inquiry is permitted. If the affidavit is properly filed, disqualification is automatic. There are, however, some limits, mostly addressed to timeliness. And even if a challenge is timely, a party can’t invoke § 170.6 once the trial court has made “a determination of contested fact issues related to the merits.”

The issue on this writ petition is whether the trial court made a determination of contested fact at an initial detention hearing in a dependency matter. It didn’t. The standard at that hearing was a prima facie; it was addressed only to the sufficiency of the evidence. The court didn’t weigh anything; it just determined that the agency’s case was supported by evidence that, if credited, was substantial. Analogizing to criminal cases holding that a § 170.6 can be timely filed after a prelim, the court holds that the hearing here doesn’t constitute a determination of contested fact issues.

Writ granted.

One interesting random thing: this opinion is a per curiam that doesn’t identify an authoring justice. Don’t see those too much in California, at least in civil appeals. 

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