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CA UD: Can D paper for ex parte hearing under CCP 1174.3 the judge who ruled no oral lease in CA and ordered D to vacate?

Walnut Creek, CA |

Writ of Execution prejudgment Claim of Right to Possession NOT served in compliance with CCP 415.46. “The court will hear objections to enforcement of the judgment under CCP 1174.3 on the following dates (specify): Any court business day at 10:30 a.m.”

D over 60, alleges extreme hardship and fulfillment of the covenants of oral agreement with P, who variously claimed “forfeiture under the agreement,” “never an agreement” and that parties had "an understanding."

D realizes original judge hearing the matter (who erroneously ruled parties had no written agreement, so D had no legal standing to contest occupancy) will rule on her Relief Against Forfeiture.

D is going ex parte (notified opposing) but it is no appearance and D can file papers during court hours.

Can D paper the judge?

Attorney Answers 1


  1. I am not quite sure as to what your question is. If what you mean by the phrase "paper the judge" is to try and have him removed from your case and have your case assigned to another judge, then you need to look to C.C.P. Sections 170 - 170.9.

    Unfortunately, pursuant to Section 170.6, such a challenge to the judge will not be entertained after a trial on the cause has already commenced. And it appears that since a Writ of Execution has been given by the Court that not only has the trial been commenced, it's over and done with and a judgment has been entered against you.

    It is therefore too late to try and disqualify the judge. However, if you appeal the judgment and that judgment is reversed, then at that time you may bring a motion to disqualify the judge pursuant to C.C.P. Section 170.6.

    The following is the relevant portion of C.C.P. Section 170.6"...In no event shall a judge, court commissioner, or referee entertain the motion if it is made after the drawing of the name of the first juror, or if there is no jury, after the making of an opening statement by counsel for plaintiff, or if there is no opening statement by counsel for plaintiff, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced."

    For the complete text of C.C.P. Section 170 - 170.9 please follow this link:

    http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=35900519659+0+0+0&WAISaction=retrieve

    This response does not create an attorney-client relationship between you and I. I am not your lawyer and I am not representing you in the underlying issue stated in your question. The response I have offered is not intended to be relied upon, you should seek out an attorney to assist in this matter.

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