District Attorney files motion to disqualify Judge Miles from Ortiz case

The District Attorney's office has filed a 170.6 motion to disqualify Judge Marilyn Miles from the Ortiz case.

I did contact DA Maggie Fleming for comment. Her response via email was, "I won’t comment on disqualifications, John."

Mr. Casey Russo, who is representing Rodney Ortiz, said that disqualification is not automatic. 

Please read the information below on 170.6.

From athenaroussoslaw.com:

California law permits a litigant to use a peremptory challenge to disqualify a judge based on an affidavit that the party believes the judge is prejudiced against that party or his or her attorney. Code Civ. Proc. § 170.6. A new judge will be automatically assigned to the case so long as the challenge is timely and in proper form.


From leginfo.ca. gov:

170.6.  (a) (1) A judge, court commissioner, or referee of a
superior court of the State of California shall not try a civil or
criminal action or special proceeding of any kind or character nor
hear any matter therein that involves a contested issue of law or
fact when it is established as provided in this section that the
judge or court commissioner is prejudiced against a party or attorney
or the interest of a party or attorney appearing in the action or
proceeding.
   (2) A party to, or an attorney appearing in, an action or
proceeding may establish this prejudice by an oral or written motion
without prior notice supported by affidavit or declaration under
penalty of perjury, or an oral statement under oath, that the judge,
court commissioner, or referee before whom the action or proceeding
is pending, or to whom it is assigned, is prejudiced against a party
or attorney, or the interest of the party or attorney, so that the
party or attorney cannot, or believes that he or she cannot, have a
fair and impartial trial or hearing before the judge, court
commissioner, or referee. If the judge, other than a judge assigned
to the case for all purposes, court commissioner, or referee assigned
to, or who is scheduled to try, the cause or hear the matter is
known at least 10 days before the date set for trial or hearing, the
motion shall be made at least 5 days before that date. If directed to
the trial of a cause with a master calendar, the motion shall be
made to the judge supervising the master calendar not later than the
time the cause is assigned for trial. If directed to the trial of a
criminal cause that has been assigned to a judge for all purposes,
the motion shall be made to the assigned judge or to the presiding
judge by a party within 10 days after notice of the all purpose
assignment, or if the party has not yet appeared in the action, then
within 10 days after the appearance. If directed to the trial of a
civil cause that has been assigned to a judge for all purposes, the
motion shall be made to the assigned judge or to the presiding judge
by a party within 15 days after notice of the all purpose assignment,
or if the party has not yet appeared in the action, then within 15
days after the appearance. If the court in which the action is
pending is authorized to have no more than one judge, and the motion
claims that the duly elected or appointed judge of that court is
prejudiced, the motion shall be made before the expiration of 30 days
from the date of the first appearance in the action of the party who
is making the motion or whose attorney is making the motion. 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. If the motion is directed to a hearing, other
than the trial of a cause, the motion shall be made not later than
the commencement of the hearing. In the case of trials or hearings
not specifically provided for in this paragraph, the procedure
specified herein shall be followed as nearly as possible. The fact
that a judge, court commissioner, or referee has presided at, or
acted in connection with, a pretrial conference or other hearing,
proceeding, or motion prior to trial, and not involving a
determination of contested fact issues relating to the merits, shall
not preclude the later making of the motion provided for in this
paragraph at the time and in the manner herein provided.
   A motion under this paragraph may be made following reversal on
appeal of a trial court's decision, or following reversal on appeal
of a trial court's final judgment, if the trial judge in the prior
proceeding is assigned to conduct a new trial on the matter.
Notwithstanding paragraph (4), the party who filed the appeal that
resulted in the reversal of a final judgment of a trial court may
make a motion under this section regardless of whether that party or
side has previously done so. The motion shall be made within 60 days
after the party or the party's attorney has been notified of the
assignment.