Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)
B. THE JUDGE HAS REPEATEDLY ABDICATED HIS RESPONSIBILITIES AS JUDGE AND DELEGATED SOLE ARBITRARY AUTHORITY TO THE DEFENSE TO SCHEDULE THE DATES OF ALL OF PLAINTIFF’S DEPOSITIONS OF DEFENSE EXPERTS
Plaintiff hereby incorporates by reference thereto the Declaration of John J. Green in support of this objection.
On at least two occasions Plaintiff applied to the Court to required the Defendant to present himself and his medical malpractice experts for depositions in a more timely manner, instead of setting the depositions for weeks and months after the date set forth in Plaintiff’s notice. On each occasion Judge Smith absolutely refused to hear much less requested an explanation from defense counsel (Betty Howe) as to why the depositions had been scheduled so for out, but simply told her to get the best dates available and confirm them with Plaintiff’s counsel by 5 pm today . On each occasion defense counsel contacted Plaintiff’s counsel with the same dates that she had previously offered and Plaintiff’s counsel was thereby forced to accede to dates that pushed his discovery up to July 13 with a July 27 trial call.
Likewise at the July 5, 2005 hearing the Judge improperly violated Plaintiff’s constitutional rights to due process by first taking up defense counsel’s request that Plaintiff’s noticed depositions of treating experts be limited in time and that the location be changed. No prior notice had been given that any such request would be made, only a frivolous request to quash the depositions. The Judge ignored Plaintiff’s objection on due process grounds and without giving Plaintiff’s counsel an opportunity to object quickly agreed with an attorney for Dr. Brown that the latter’s deposition be taken at the latter’s office and limited to two hours.
Plaintiff’s counsel then attempted to explain that the judge’s order would prevent the taking of the deposition of Dr. Brown because it would be logistically impossible to comply with it. The Judge responded “You’ll have to do the best you can.” As a consequence the Judge deprived Plaintiff of important pretrial discovery.
MEMORANDUM OF POINTS AND AUTHORITIES
Cal. Code of Civil Procedure 170.1 provides:
(a) A judge shall be disqualified if any one or more of the following is true: …(6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification.
Cal. Code of Civil Procedure 170.3 provides:
(a) (1) Whenever a judge determines himself or herself to be disqualified, the judge shall notify the presiding judge of the court of his or her recusal and shall not further participate in the proceeding, except as provided in Section 170.4, unless his or her disqualification is waived by the parties as provided in subdivision (b).
Canons of Code of Judicial Ethics provides:
Canon 1. A judge shall uphold the integrity and independence of the judiciary.
Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
Canon 3. A judge shall perform the duties of judicial office impartially and diligently.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.