1 Kenneth House et al.

P. O. BOX 2644
2 RANCHO CUCAMONGA, CA 91729

4 COURT NAME

5 JURISDICTION

6 KENNETH HOUSE ET AL., Case No.: Number

7 Appellants,

8 vs. PEREMPTORY CHALLENGE

9 MARIO MARTINEZ,

10 Defendant

11 APPEAL FROM THE SUPERIOR COURT OF SAN BERNARDINO COUNTY

12 Honorable _________________, Judge

13 APPELLANT’S MOTION TO RECALL THE REMITTITUR AND REINSTATE THE APPEAL

14 TO THE HONORABLE PRESIDING JUSTICE _____________AND ASSOCIATE JUSTICES

15 OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT,

16 DIVISION ___________:

17 Pursuant to California Rules of Court, rules 8.272(c), 8.366(a),

18 appellant Kenneth House et al. hereby moves to recall the remittitur the court

19 issued on April 25, 2019 and to reinstate his appeal. The grounds for this MOTION TO RECALL

20 THE REMITTITUR TO THE HONORABLE ARTHUR G. SCOTLAND, PRESIDING JUSTICE, AND TO THE

21 ASSOCIATE JUSTICES OF THE COURT OF APPEAL:

22 Appellant/petitioner, Kenneth House, Rosa House, respectfully moves this court for an

23 order recalling the remittitur and permitting them to reinstate their appeal in this case.

24 This motion is based upon the following points and authorities and the attached

25 declarations.

26 Dated: Respectfully submitted,

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1 Kenneth House et al

3 POINTS AND AUTHORITIES IN SUPPORT OF MOTION

4 TO RECALL REMITTITUR

6 Following the order and judgment entered on March 25, 2019, in San Bernardino County

7 No. ##, appellant filed a notice of appeal on [DATE].

8 [DESCRIBE DETAILS OF ISSUANCE OF REMITTITUR THAT SHOULD NOW

9 BE SET ASIDE e.g., Included with the notice of appeal, appellant submitted an Application for Appointment

10 of Counsel for the Third District Court of Appeal. On June 26, 1990, appellant received correspondence

11 from the Central California Appellate Program advising her that the application submitted was invalid in

12 that she had failed to include any income or expense information even though she was not incarcerated. (See

13 Exhibit A, attached hereto.) On June 28, 1990, appellant mailed another application to the program.

14 Appellant received a letter dated July 2, 1990, that advised her that this application also was invalid because

15 the form was not completely filled out. (See Exhibit B, attached hereto.) Appellant contends that she

16 immediately filled out the new application and mailed it to the program. (See Exhibit C, attached hereto.)

17 During this period of time, appellant was taking a medication, Dilantin, prescribed

18 by her physician, Dr. Porter, of the Primary Care Center. Appellant suffers from seizures occurring two or

19 three times a week and is currently taking Phenobarbital prescribed by her physician. (See Exhibit C.)

20 Appellant maintains that she believed her application for appointment of counsel

21 was in the mail and that she would soon be hearing from her appointed attorney. (See Exhibit C.)

22 On September 13, 1990, appellant was informed by the Central California Appellate

23 Program that the record on appeal was being returned to her because her appeal had been dismissed. (See

24 Exhibit C.)

25 Appellant immediately telephoned the Central California Appellate Program to ask

26 for assistance in reinstating her appeal.

27 Appellant, a layperson of the law, should not be penalized for being ignorant of

28 appellate procedures. (People v. Davis (1965) 62 Cal.2d 806.) Moreover, the court must consider appellant’s
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1 state of health and the bewilderment she must have felt in attempting to provide the court with a proper

2 application. Appellant sincerely believed that she had proceeded properly and that she had legal

3 representation on appeal. (People v. Hickok (1949) 92 Cal.App.2d 539.)]

4 Appellant respectfully requests this court to consider her

5 application in light of the standards announced in People v. Ribero (1971) 4 Cal.3d 55, 65, that the

6 power of appellate courts to grant relief from default ". . . is to be liberally construed to protect the right to appeal."

7 Dated: Respectfully submitted,

9 [YOUR NAME]

10 Address / telephone

11 Code of Civil Procedure - CCP170.6. CHAPTER 3. Disqualifications of

12 Judges [170 - 170.9]

13 170.1.

14 (a) A judge shall be disqualified if any one or more of the following are true:

15 (1) (A) The judge has personal knowledge of disputed evidentiary facts concerning the

16 proceeding.

17 (6) (A) For any reason:

18 (i) The judge believes his or her recusal would further the interests of justice.

19 (ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial.

20 (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be

21 able to be impartial.

22 (B) Bias or prejudice toward a lawyer in the proceeding may be grounds for disqualification.

23 (ii) The matter before the judge includes issues relating to the enforcement of either an

24 agreement to submit a dispute to an alternative dispute resolution process or an award or other final decision

25 by a dispute resolution neutral.

26 (B) For the purposes of this paragraph, all of the following apply:

27

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1 (iii) “Dispute resolution neutral” means an arbitrator, mediator, temporary judge appointed

2 under Section 21 of Article VI of the California Constitution, referee appointed under Section 638 or 639,

3 special master, neutral evaluator, settlement officer, or settlement facilitator.

4 (b) A judge before whom a proceeding was tried or heard shall be disqualified from

5 participating in any appellate review of that proceeding.

6 (c) At the request of a party or on its own motion an appellate court shall consider whether

7 in the interests of justice it should direct that further proceedings be heard before a trial judge other than the

8 judge whose judgment or order was reviewed by the appellate court.

10 The Basic Law

11 California Code of Civil Procedure Section 170.6 allows a party who timely files an “affidavit of

12 prejudice” to disqualify a judge without any showing of cause. The affidavit of prejudice is not contestable and the

13 disqualification of the judge is automatic. (CCP §170.6(a))

14 However, only one such peremptory challenge is allowed per side. (CCP § 170.6(a)(3)) Note a

15 peremptory challenge under CCP §170.6 is not the same as a motion to disqualify a judge by a party or an attorney,

16 i.e., a challenge for cause which is discussed in the Code at CCP §170.1.

17 (a) (1) A judge, court commissioner, or referee of a superior court of the State of California

18 shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter

19 therein that involves a contested issue of law or fact when it is established as provided in this section that the

20 judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney

21 appearing in the action or proceeding.

22 (2) A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by

23 an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an

24 oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is

25 pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney,

26 so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before

27 the judge, court commissioner, or referee. If the judge, other than a judge assigned to the case for all purposes, court

28 commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least 10
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1 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date. If directed to

2 the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not

3 later than the time the cause is assigned for trial. If directed to the trial of a civil cause that has been assigned to a

4 judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15

5 days after notice of the all-purpose assignment, or if the party has not yet appeared in the action, then within 15 days

6 after the appearance. If the court in which the action is pending is authorized to have no more than one judge, and

7 the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made

8 before the expiration of 30 days from the date of the first appearance in the action of the party who is making the

9 motion or whose attorney is making the motion. In no event shall a judge, court commissioner, or referee entertain

10 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

11 opening statement by counsel for plaintiff, or if there is no opening statement by counsel for plaintiff, then after

12 swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced. If the

13 motion is directed to a hearing, other than the trial of a cause, the motion shall be made not later than the

14 commencement of the hearing. In the case of trials or hearings not specifically provided for in this paragraph, the

15 procedure specified herein shall be followed as nearly as possible. The fact that a judge, court commissioner, or

16 referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion

17 prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the

18 later making of the motion provided for in this paragraph at the time and in the manner herein provided.

19 A motion under this paragraph may be made following reversal on appeal of a trial court’s

20 decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is

21 assigned to conduct a new trial on the matter. Notwithstanding paragraph (4), the party who filed the appeal that

22 resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of

23 whether that party or side has previously done so. The motion shall be made within 60 days after the party or the

24 party’s attorney has been notified of the assignment.

25 (3) A party to a civil action making that motion under this section shall serve notice on all parties

26 no later than five days after making the motion.

27 (4) If the motion is duly presented, and the affidavit or declaration under penalty of perjury is duly

28 filed or an oral statement under oath is duly made, thereupon and without any further act or proof, the judge
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1 supervising the master calendar, if any, shall assign some other judge, court commissioner, or referee to try the

2 cause or hear the matter. In other cases, the trial of the cause or the hearing of the matter shall be assigned or

3 transferred to another judge, court commissioner, or referee of the court in which the trial or matter is pending or, if

4 there is no other judge, court commissioner, or referee of the court in which the trial or matter is pending, the Chair

5 of the Judicial Council shall assign some other judge, court commissioner, or referee to try the cause or hear the

6 matter as promptly as possible. Except as provided in this section, no party or attorney shall be permitted to make

7 more than one such motion in any one action or special proceeding pursuant to this section. In actions or special

8 proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party

9 appearing in the action or special proceeding, only one motion for each side may be made in any one action or

10 special proceeding.

11 (5) Unless required for the convenience of the court or unless good cause is shown, a continuance

12 of the trial or hearing shall not be granted by reason of the making of a motion under this section. If a continuance is

13 granted, the cause or matter shall be continued from day to day or for other limited periods upon the trial or other

14 calendar and shall be reassigned or transferred for trial or hearing as promptly as possible.

15 CONCLUSION

16 As demonstrated, Kenneth House et al., decided after the remittitur in this

17 case, requires a different result. Petitioner requests the recall of the

18 remittitur and reinstatement of his appeal because the state law applied in

19 the opinion is contrary to an intervening decision of the United States

20 Supreme Court.

21

22 Dated: Respectfully submitted,

23

24 ___________________ Attorney for Appellant and Defendant

25 (6) Any affidavit filed pursuant to this section shall be in substantially the following form:

26 ____, being duly sworn, deposes and says: That he or she is

27 a party (or attorney for a party) to the within action (or special proceeding). That ____ the judge, court
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1 commissioner, or referee before whom the trial of the (or a hearing in the) action (or special proceeding) is
2 pending (or to whom it is assigned) is prejudiced against the party (or his or her attorney) or the interest of the
3 party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial
4 or hearing before the judge, court commissioner, or referee.
5

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Subscribed and sworn to before me this
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8 ______ day of ______, 20__.

9
(Clerk or notary public or other
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11 officer administering oath)

12
I declare under penalty of perjury under the laws of the State of California that the foregoingis true
13
and correct and that this declaration is executed on May 4, 2019 at Ontario, California
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Dated this 4th of May, 2019.
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