9/21/07 Judge Breen
recuses self after petitioners' filing of Petition for Writ of Mandate in Sixth District because of Judge Breen's
refusal to bow to effective challenge for cause (CCP §170.1), one hour before hearing, expressing sympathy for defendants and thus openly admitting bias.
A new out of county retired judge, Hon. Thomas P. Breen
, from Hollister, was assigned to the case to sit in Santa Clara County.
Our first hearing with Judge Breen
was held on August 23, 2007.
We reiterated our request for a change of venue, because if there is no judge qualified to act then why are we there?
Because Judge Breen
is not available except on noticed scheduled court days, it is impossible to have emergency (24hr.) ex parte hearings.
There is no other judge that can act on them in the courthouse.
There is no discovery judge available, and no probate judge to appoint a guardian ad litem for Nancy.
In addition, Judge Breen
is not allowing any oral argument on the motions, even though he
is clearly confused on the simplest points of law he
has ruled on so far.
This is unworkable.
Now, on Monday we found that Judge Breen has a prima facie conflict of interest, too, in that he is a trustee for an affiliated state agency, Gavilan College in Gilroy/Hollister in a lawsuit against the State represented by the Attorney General!
As such there is an explicit provision in the code for disqualification for cause that applies to him (CCP §170.1(a)(4)).
was formally challenged on Monday, September 17, 2007, before hearing.
decided to disregard the challenge and go ahead in spite of the conflict of interest, claiming that the challenge was too late.
did not file an Answer.
A CCP 170.1 is not untimely if it is served at the earliest practicable opportunity after discovery of the facts supporting grounds for disqualification, which was done.
nevertheless intends to go forward in demurrer hearing on Friday September 21, 2007 where he
could dispose of the entire case, even though he
does not dispute the facts supporting grounds for disqualification!
does all his
rulings are void or voidable, and he
had a duty to inform us of these conflicts before we found him out.
We are therefore about to file a writ of mandate to ask the Sixth District Court of Appeal to force Judge Breen
has offered no solution to this problem and we are now approaching demurrers without Nancy having any legal representative.
The County and SARC
have insisted that they have veto power over appointment of any GAL that represents Nancy and really wants no one to represent her
so they can throw her
case out of court.
In the alternative, if the defendants pick their own GAL for Nancy, she
would have the standing to dispose of all Nancy's claims without a single witness appearing or a single juror sitting.