REBUTTALS TO JUDGE SMALL

Besides, the judge already stands disqualified for filing the order striking the second statement late. It is a requirement for the judge to strike the statement within the 10-day period prescribed in section 170.3, subdivision (c)(3) for filing an answer. Thereafter, the judge is deemed disqualified and has no power to act in the case. Lewis v. Superior Court (1988) 198 Cal.App.3d 1101, 1104 [ 244 Cal.Rptr. 328].

Plaintiff sent her second statement on May 3, 2023. The judge was therefore mandated to file the order striking the statement by May 13, 2023. However, the judge issued the order on May 22, 2023. Accordingly, the judge is deemed disqualified, and has no jurisdiction over this case.

Here, first, it was pertinent to file the second statement. The second statement was filed because, per 170.6, judge did not need to file a verified answer but he did, and his response (see verified answer) warranted a second statement of disqualification. In the verified answer, judge Small clearly stated, that Plaintiff’s new case is subject to civil code of procedure for vexatious litigant, even though it was filed prior to being named a vexatious litigant and a minute order issued on 04/11/2023, clearly noted that, Plaintiff’s status as a vexatious litigant will be addressed for continued litigation. This ground itself amounted to additional facts that warranted the second statement of disqualification.

Next, the Judge’s order is null and void because it was filed beyond the ten days prescribed by the statute.

Lastly, the second statement should have been determined by a different judge as opposed to Judge Small. The foresaid statute clearly provides that a separate judge should determine the matter, at the stage where it is at the moment. It follows; the mere reason that Judge Small still handles this matter is sufficient ground to overturn the Judge’s order.

On September 19, 2022, the Honorable Steven J. Kleified judgement entered in favor of defendant in this action.

Notice of the entry of judgement was filed on September 21, 2022. Thus, this case has concluded and the deadline to appeal has expired.

Next, Judge Small vacated and consolidated the proceedings in Plaintiff’s new case (22STCV37929), which is still pending. Interestingly, Judge Small has made himself the lead judge in the case. It is notable that the new case is not disposed and it was filed prior to being named a vexatious litigant. The judge’s actions are evidently replete with bad faith, and ulterior motive to harass Plaintiff, and to obstruct her access to justice.

Further, Plaintiff had filed a motion to take judicial notice that was on docket for 09/22/2022. A case management hearing was also on the docket for 09/29/2022. But on 09/19/2022, Judge Kleifield vacated CM hearing for 09/29/2022 and hearing to take judicial notice set for 09/22/2022. The pending motion to file the first amended complaint was also vacated. Then, an ex-parte hearing was filed for Nov 3, 2022. Plaintiff filed a continuance to that hearing due to severe chest pains from trauma caused by defendant, requiring leave to be evaluated by emergency room physician. The hearing to deem Plaintiff vexatious was moved to December 9, 2022, at which time it was granted.

On March 27, 2023, Plaintiff filed the first Statement, accompanied by an affidavit by Plaintiff. On April 6, 2023, Plaintiff filed an updated affidavit. The First Statement was not personally served.

The mere fact that Judge Small presided over the matter of his dismissal, where he was, by statute, obligated to allow a different judge preside, speaks to the validity of the written order.

On May 3, 2023, just seven days after this Court struck the First Statement, Plaintiff served and filed a second statement. The second statement is repetitive of the First Statement in that it relies on the same untimely claims, cites disagreement with the same court rulings, and repeats the same opinions and conclusions about the assigned judge, the previously assigned judge, other judicial officers and Plaintiff’s prior counsel.

Here, the judge made rulings in Plaintiffs new case, pursuant to civ code of procedures for vexatious litigant. It is notable that the said case was filed before Plaintiff was deemed vexatious. The foregoing therefore amounts to a discovery of facts that justify the second statement. Plaintiff has submitted evidence that demonstrated fraud and per the civ codes for procedure that describe a vexatious litigant, Plaintiff clearly does not fall in that category.

Instead, he grants defendants 391 (a), which is contradictory. The said section provides in pertinent part that: indeed, in any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.

Plaintiff asserts that since the matter has never been decided on its merits since its inception, no determination has been sufficiently made to satisfy the allegation that Plaintiff has no reasonable probability that she will prevail in the case.

A party may file no more than one statement of disqualification unless facts suggesting new grounds for disqualification are first learned of or arise after the first statement was filed. (Code Civ. Proc., § 170.4, subd. (c)(3).)

Here, the judge made rulings in Plaintiffs new case, pursuant to civ code of procedures for vexatious litigant. It is notable that the said case was filed before Plaintiff was deemed vexatious. The foregoing therefore amounts to a discovery of facts that justify the second statement. Plaintiff has submitted evidence that demonstrated fraud and per the civ codes for procedure that describe a vexatious litigant, Plaintiff clearly does not fall in that category.

The Court incorporates its April 26, 2023, Order Striking Statement of Disqualification into this Order.

As the Second Statement is repetitive of the First Statement, it is stricken on that basis.

(Code Civ. Proc., § 170.4, subd. (c)(3).)

Here, the judge made rulings in Plaintiffs new case, pursuant to civ code of procedures for vexatious litigant. It is notable that the said case was filed before Plaintiff was deemed vexatious. The foregoing therefore amounts to a discovery of facts that justify the second statement. Plaintiff has submitted evidence that demonstrated fraud and per the civ codes for procedure that describe a vexatious litigant, Plaintiff clearly does not fall in that category.

Further, the Judge is lying blatantly. It is disastrous for a judge to misrepresent facts. The judge is aware that the second statement is based on the Court’s insistence on the vexatious litigant issue. This is after the Court dismissed the first statement, and went on to rely on the vexatious litigation argument. Clearly, the second statement is based on matters as recent as the Court’s most recent order.

“The reason for requiring a prompt claim of bias is that a party should not be allowed to play fast and loose with the administration of justice by deliberately refraining from raising any objection, on the chance that he might get a favorable decision, and still be free to urge the objection as grounds for upsetting an unfavorable judgment.” (Kearing v. Superior Court (1955) 45 Cal.2d 440, 446, internal citation omitted.)

Here, Plaintiff seeks disqualification based on rulings and hearings that occurred long ago. As the Second Statement was not brought at the earliest practical opportunity, it is stricken as untimely pursuant to Code of Civil Procedure section 170.4, subdivision (b).

It follows, Plaintiff was only required to point out the slightest incidence of bias, which she did, to sufficiently claim the judge’s disqualification.

Plaintiff seeks disqualification based on her opinions and conclusions about the assigned judge’s alleged bias.

Plaintiff’s opinions and conclusions are insufficient to disqualify a judge. Code of Civil

Procedure section 170.3, subdivision (c)(1) requires the disqualification statement to set forth “the facts constituting the grounds” for disqualification of the judge.

The foregoing example clearly shows that Plaintiff’s claims against the judge are not merely based on Plaintiff’s opinions and/or belief. A reasonable person will have doubts as to the bias of the judge.

The Second Statement alleges misconduct by Plaintiff’s prior counsel, defendant, defendant’s attorneys and other judicial officers. Such allegations are irrelevant to disqualification of the judge.

A judge has both an ethical and statutory duty to decide cases where, as here, there are no for disqualification. Code Ju Ethics, canon 3B(8); Code Civ. Proc., § 170; Cal. Rules of Court, rule 10.608.)

Since Plaintiff’s Second Statement is repetitive of Plaintiff’s prior statement, is based on untimely allegations, and does not state legal grounds for disqualification for cause, it is ordered stricken pursuant to Code of Civil Procedure section 170.4, subdivisions (b) and (c)(3). The Court vacates the May 24, 2023, hearing on Plaintiff’s Motion to Disqualify.

It follows; this action by the judge amounts to an abuse of the Court’s discretion. “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” Shamblin v. Brattain, 44 Cal.3d 474, 478 (Cal. 1988). Clearly, the Court abused its discretion.

The parties are reminded that the determination of the question of the disqualification is not an appealable order and may be reviewed only by a writ of mandate from the Court of Appeal sought within 10 days of written notice to the parties of the decision. (Code Civ. Proc., § 170.3, subd. (d).)