by Sean W. Morrisroe –
The judge assigned for an expedited hearing may very well be the judge for all remaining hearings and trials on your case. So, if you do not want that judge, strike quickly!
Occasionally, the first hearing in a matter is an expedited hearing, set early in a case, over temporary disability or other priority issues. It often occurs even be before defense counsel appears in the case. For instance, the applicant’s attorney quickly files a Declaration of Readiness over alleged wrongful failure to pay temporary disability. An expedited hearing, the first hearing in the case, is then set within thirty (30) days with a designated judge per LC § 5502(b). Absent a quick “Petition for Automatic Reassignment” per CCR §10453, the assigned judge could very well be the judge for all future hearings in the case. Bottom line: if you do not want that judge on the case, you must quickly strike that judge.
Why? You may be stuck with the expedited hearing judge for the life of the case since a party is not usually allowed to petition for reassignment after the swearing of the first witness at a trial or an expedited hearing. So, if a judge has already conducted proceedings in a case, such as at an expedited hearing, a party would normally not have the right to object to that judge in later proceedings.
Moreover, you might even be stuck with that judge if no testimony is taken at the expedited hearing! At the Oakland WCAB, for instance, the standard operating practice is that all future hearings are set with the same judge with whom the initial trial was set, whether or not testimony was taken. Arguably, there may be a legal challenge as to whether that assignment practice is legally supportable or whether you are still entitled to a reassignment. However, if you go to an expedited hearing and are able to resolve the dispute short of trial, there is the risk that you are handcuffed to that same judge for the remainder of the case.
What to do? If the first hearing set in a case is an expedited hearing, quickly decide if you want to strike the judge, and if so, immediately file the requisite Petition for Automatic Reassignment per CCR §10453. You do not need to allege bias or give any other reason for the request. It is automatically given. The petition must be filed within five (5) days after service of the expedited hearing notice. If the notice of expedited hearing is served by mail, you may be entitled to an additional five (5) days per CCP §1013.
Sadly, this right to strike is not often exercised. But it is a right that may prevent litigation headaches for years to come. So when the DOR for, or notice of, an expedited hearing arrives, get prepared to quickly strike.
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