Appellant's contention was rejected. ( Ensher, Alexander Barsoom, Inc. v. Ensher, 225 Cal.App.2d 318, 323 [ 37 Cal.Rptr. 327].) Another ground of the appeal was that Judge Christian had vacated his office.
( Solberg v. Superior Court (1977) supra, 19 Cal.3d 182.) The proper analysis of the section was set forth in Ensher,Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [ 37 Cal.Rptr. 327]: "In order for the judge to be disqualified, the prejudice must be against a particular party [citations] and sufficient to impair the judge's impartiality so that it appears probable that a fair trial cannot be held." (Italics added.)
Section 1005.5, enacted in 1953, abrogated the former rule that a motion was made only upon oral presentation of a request to the court. ( Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 324-325 [ 37 Cal.Rptr. 327]; Milstein v. Sartain (1943) 56 Cal.App.2d 924, 930-931 [ 133 P.2d 836] [stating the former rule].) In light of sections 1003 and 1005.5, we conclude that an application for relief under section 473, subdivision (b), is a motion and that an application for relief under the statute is deemed to be made upon filing in court of a notice of motion and service of the notice of motion on the adverse party.
As explained by Professor Witkin, the Legislature enacted section 1005.5 to abolish the former requirement that a motion required an " oral application" to the court, but at the same time to "protect the right of either party to appear and be heard." (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, ยง 36, p. 431; see Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 325 [37 Cal.Rptr. 327].) Because the Legislature intentionally retained the concept of a party's right to appear and to orally argue a motion when it eliminated the requirement that a notice of motion be presented orally, we conclude the Legislature intended to provide parties to a summary judgment motion with this right because there is no language to the contrary in the summary judgment statute.
Under such circumstances, the court's action may be reviewed for harmless error. (See Mediterranean Construction Co. v. State Farm Fire Casualty Co. (1998) 66 Cal.App.4th 257, 267; M. E. Gray Co. v. Gray (1985) 163 Cal.App.3d 1025, 1037; Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 324-325.) Applying this harmless error analysis, we conclude Bravo suffered no prejudice from the denial of an oral hearing.
At most, they contain nothing more than a sentence or two announcing a generalized proposition without explanation or analysis. In many, the court found no prejudicial error, either because "the record was completely devoid of any grounds to support granting the motion" ( Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 325; see also Sullivan v. Dunnigan (1959) 171 Cal.App.2d 662, 669), or because oral argument was offered but declined ( Oil Workers Intl. Union v. Superior Court (1951) 103 Cal.App.2d 512, 581), or because oral argument in fact was conducted ( Gillette v. Gillette (1960) 180 Cal.App.2d 777, 782 [". . . a review of the transcript indicates that counsel did have ample opportunity to argue the case"]). Others concerned litigants who sought to introduce oral testimony at hearings, not oral argument โ clearly, a different issue (see, e.g., McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359; Haldane v. Haldane (1962) 210 Cal.App.2d 587, 593; Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 698, fn. 3.)
"Bias or prejudice consists of a `mental attitude or disposition of the judge towards [or against] a party to the litigation. . . .'" ( Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [ 37 Cal.Rptr. 327], quoting Evans v. Superior Court (1930) 107 Cal.App. 372, 380 [ 290 P. 662].) Neither strained relations between a judge and an attorney for a party nor "[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are . . . evidence of bias or prejudice. [Citation.]"
' (Italics added.)" ( Andrews, supra, 28 Cal. 3d at p. 792, quoting Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [ 37 Cal.Rptr. 327].) The Supreme Court explained this two-tier inquiry as follows, "The first inquiry consists of deciding whether the moving party has set forth legally sufficient facts to demonstrate the bias of the judicial officer.
to receive or read the briefs]); Oil Workers Intl. Union v. Superior Court (1951) 103 Cal.App.2d 512, 581 [ 230 P.2d 71] (oral argument in general in court trial is a privilege, not a right); Muller v. Muller (1956) 141 Cal.App.2d 722, 731 [ 297 P.2d 789] ("It is, of course, the law, that a trial judge is not required to listen to oral arguments in support of a motion, but may, in his discretion, decide it solely on the basis of the supporting affidavits."); Beckett v. Kaynar Mfg. Co., Inc. (1958) 49 Cal.2d 695, 698, fn. 3 [ 321 P.2d 749] (motions made and heard on affidavits alone); Sullivan v. Dunnigan (1959) 171 Cal.App.2d 662, 669 [ 341 P.2d 404] (no error in denial of oral argument in support of motion for nonsuit); Gillette v. Gillette (1960) 180 Cal.App.2d 777, 781 [ 4 Cal.Rptr. 700] (argument properly precluded in court trial); Haldane v. Haldane (1962) 210 Cal.App.2d 587, 593 [ 26 Cal.Rptr. 670] (motion for marital support properly decided on basis only of paperwork); Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 325 [ 37 Cal.Rptr. 327] (no error in refusing to hear argument on plaintiff's motion to reopen); McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359 [ 100 Cal.Rptr. 258] (motion for fees may be decided on affidavits alone). Thus, although we usually prefer to rest a decision upon recent authorities of, say the 1980's or 1990's, the length and unanimity of this seasoned line of cases, stretching from 1930 to 1972, convince us of the proposition: a court may decide a motion without hearing oral argument.
( People v. Brown, supra, 6 Cal.4th at pp. 336-337; and see UnitedStates v. Carmichael (4th Cir. 1984) 726 F.2d 158, 160-161; Wolfson v. Palmieri (2d Cir. 1968) 396 F.2d 121, 125.) The challenge must be to the effect that the judge would not be able to be impartial toward a particular party. ( Ensher, Alexander Barsoom v. Ensher (1964) 225 Cal.App.2d 318, 322 [ 37 Cal.Rptr. 327] .) (4) Relying on Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1061 [ 232 Cal.Rptr. 528, 728 P.2d 1163], Mr. Perkins contends that the question whether "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial" (ยง 170.1(a)(6)(C)) is one of fact, decided adversely to Judge Flier by respondent superior court.