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Disqualifying Judges

By Frederick R. Bennett

      California litigants are allowed to disqualify judges from presiding over their cases both as a matter of right or peremptorily and on a showing of cause, even though exercising such rights may be disruptive or abused. To minimize such abuse and disruption, the California Supreme Court has directed trial-court judges to "be vigilant to enforce the statutory restrictions on the number and timing of motions permitted." Solberg v. Superior Court (1977) 19 Cal.3d 182, 198.
      Accordingly, litigants' knowledge of the fundamental rules concerning disqualification is essential to successful practice. Bench officers also must be thoroughly familiar with these rules because the "duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified." UFW of Am. v. Superior Court (1985) 170 Cal.App.3d 97, 100.
      The objective of this article and self-study test is to review the basic rules concerning disqualification of judges in California. By reading the article and taking the test, lawyers and bench officers will learn important time limits and rulings that will bar the filing of peremptory challenges to judges (Code of Civ. Proc., section 170.6), as well as critical procedural issues regarding challenges to judges for cause (Code of Civ. Proc., section 170.1). Although bench officers may apply to their presiding judges for self-study credit, this self-study test has not been approved by CJER for judicial ethics credit under the state-provided CJP insurance program.

      Peremptory Challenges
      Timeliness is the touchstone for motions to disqualify judges on a peremptory basis under Code of Civil Procedure section 170.6. Assuming the motion is timely, the judge must disqualify himself or herself. If the motion is untimely, the motion should be denied. The rules in this area of law with respect to both civil and criminal cases are substantially the same. See McClenny v. Superior Court (1964) 60 Cal.2d 677, 685.
      All that is required for a peremptory challenge is a declaration under oath that the judge is "prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge." Code of Civ. Proc., section 170.6(a)(5). So long as a timely declaration is made substantially stating the quoted language above, the judge has no recourse but to disqualify himself or herself.
      The only exception to this rule is if it can be shown that the peremptory challenge was filed because the judge is a member of a cognizable group. This is the same as the principle that forbids a party from exercising a peremptory challenge against a potential juror during jury selection because of membership in a cognizable class. Akin to jury Batson/Wheeler challenges, the opposing party has the burden of establishing a prima facie case that the challenge was exercised because of group bias; if a prima facie case is proved, the burden shifts to the party that made the challenge to prove that noncognizable group reasons supported the challenge. See People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 708-709.

      Timeliness Issues
      The general rule concerning timeliness is that a section 170.6 challenge will be timely so long as it is filed at any time before the start of the hearing toward which it is directed and none of the exceptions to this rule apply. Augustyn v. Superior Court (1986) 186 Cal.App.3d 1221, 1226. The four primary exceptions are listed in section 170.6(2): (1) The Master Calendar exception (applies if case is sent to start trial from "master calendar court"); (2) The 10-day/5-day exception (if the judge is known at least 10 days before start of hearing, the section 170.6 challenge must be filed at least 5 days before the hearing starts); (3) The All Purpose Assignment exception (if a case is assigned to a judge "for all purposes," then the section 170.6 challenge must be filed within 10 days of notice of such an assignment; 15 days if the assignment is by court rule. Gov. Code section 68616(i)); and (4) The Ruling on the Merits exception (a section 170.6 challenge cannot be filed after a judge has made a "ruling on the merits" of the case). (A concise explanation of these exceptions can be found in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1177-1183.)
      For purposes of the exceptions, the substitution of counsel does not begin new time periods. See People v. Superior Court (Smith) (1987) 190 Cal.App.3d 427. Further, a party may not continue a case deliberately to gain time to file an otherwise untimely challenge. People v. Richard (1978) 85 Cal.App.3d 292. Only one peremptory challenge is permitted per side unless substantially adverse interests between multiple parties are established. Avital v. Superior Court (1981) 114 Cal.App.3d 297, 301.
      Regarding the exception for when a judge has made a "ruling on the merits," appellate cases have set forth several rulings in criminal cases that are on the merits that will bar a section 170.6 disqualification, including a motion to suppress evidence under the Fourth Amendment (In re Abdul Y. (1982) 130 Cal.App.3d 847), the acceptance of a plea bargain (Lyons v. Superior Court (1977) 73 Cal.App.3d 625), and a trial, for example when a mistrial results (People v. Richard (1978) 85 Cal.App.3d 292). Note, however, that if a case is reversed by an appellate court, a section 170.6 may be timely regarding the retrial if made within 60 days after assignment to the same judge. Code of Civil Procedure section 170.6(2). This rule does not apply to pretrial decisions that do not result in a judgment, such as motions in limine or pretrial conflict-of-laws motions. State Farm v. Superior Court (2004) 20 Cal.Rptr.3d 850.
      Rulings in criminal cases that have been held not to be on the merits include a motion to set aside an information under Penal Code section 995 (Kohn v. Superior Court (1966) 239 Cal.App.2d 428), the discussion of a possible plea bargain where the bargain is not accepted by the parties (People v. Montalvo (1981) 117 Cal.App.3d 790), and the ruling on a demurrer (Fraijo v. Superior Court (1973) 34 Cal.App.3d 222).
      In civil cases, rulings that are on the merits that will bar a section 170.6 disqualification include ruling on an injunction (Astourian v. Superior Court (1990) 226 Cal.App.3d 720), summary adjudication involving complex questions of law (Cal. Fed. Sav. & Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267), and appointment of a conservator (Conservatorship of Durham (1988) 205 Cal.App.3d 548).
      Rulings in civil cases held not to bar a section 170.6 include ruling on a temporary restraining order (Landmark Holding Group Inc. v. Superior Court (1987) 193 Cal.App.3d 525), ruling on a summary judgment motion (Bambula v. Superior Court (1985) 174 Cal.App.3d 653), and ruling on a motion to transfer and for continuance (Los Angeles County Dept. of Pub. Soc. Servs. v. Superior Court (1977) 69 Cal.App.3d 407).

      Challenges for Cause
      A section 170.1 challenge can be filed at any stage of the proceedings. However, the challenge can be waived if it is not asserted "at the earliest practicable opportunity after discovery of the disqualifying facts." Code of Civ. Proc., section 170.6(2). Although no specific time period is stated, the time period is short. A party cannot wait to see what happens or until the matter comes up on calendar. In re Steven O. (1991) 229 Cal.App.3d 46.
      No formal "motion" is needed to disqualify a judge either peremptorily or for cause. However, it must be in a form sufficient to give the judge clear notice. McCartney v. Superior Court (1990) 223 Cal.App.3d 1334, 1340. Although a one-page affidavit is sufficient for a peremptory challenge, a challenge for cause must be formal and in writing. A mere request that a judge disqualify himself or herself is insufficient. People v. Kirk (1950) 98 Cal.App.2d 687, 693.
      The motion must be based on facts, not opinion or conclusion. Code of Civ. Proc., section 170.3(c)(1); Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 426. It cannot be based on information and belief, hearsay or other inadmissible evidence. Anastos v Lee (2004) 118 Cal.App.4th 1314, 1319. A "trial court's numerous rulings against a party - even when erroneous - do not establish a charge of judicial bias, especially when they are subject to review." People v. Guerra (2006) 37 Cal.4th 1067, 1112.
      There are two general grounds for a section 170.1 challenge for cause. One group consists of judges' ties to the parties or actions, such as when the judge has personal knowledge of disputed evidentiary facts, or when the judge or his kin are related to the parties, or when the judge has a financial interest in the proceedings. Code of Civil Proc. section 170.1(a)(1)-(5), (7), (8). The other group is when the judge believes he or she cannot be fair, when the judge is actually biased against a party, or when a person might reasonably entertain a doubt regarding the judge's ability to be fair. Code of Civil Procedure section 170.1(a)(6).
      Most of the grounds for disqualification for cause are very straightforward: A judge either is or is not related to a party. The more subjective ones, such as whether the judge is biased, are much more difficult to prove. The party seeking disqualification has the burden of proof. Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.

      Procedures After Filing
      After the challenge for cause is filed, without conceding disqualification, the judge can consent that the matter be heard by another judge. Code of Civil Procedure section 170.3(c)(2). If the judge does not strike the disqualification statement or file a verified answer within 10 days of service, the judge is deemed to be disqualified. Code of Civ. Proc. section 170.3(c)(4); Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 419. There must be personal service on the judge or on the judge's clerk while the judge is in the courthouse to start the 10-day period. Code of Civ. Prod., section 170.3(c)(1).
      A judge may strike a disqualification statement that is untimely or demonstrates on its face no legal grounds for disqualification. Code of Civ. Proc. section 170.4(b). The latter typically include statements based on rulings, opinion, speculation or inadmissible evidence. A strike order may and often does include an alternative answer to be on file in the event that a reviewing court finds that the statement was improperly stricken. See PBA, LLC v. KPOD, LTD (2003) 112 Cal.App.4th 965, 972.
      If a verified answer is filed, the matter is referred to another judge to determine the question of disqualification. Although the statute permits referral to a judge stipulated to by the parties, there is normally no such stipulation, and the referral is to a judge from another county by the Chief Justice. Code of Civil Procedure section 170.3(c)(5).

      Appellate Review
      The exclusive means of seeking appellate review of the denial of a peremptory challenge or of a statutory ground for disqualification for cause is an appellate writ taken within 10 days of the disqualification determination, whether by denial, striking or decision. The issue is not normally preserved for an appeal. Code of Civ. Proc. section 170.3(d); People v. Hull (1991) 1 Cal.4th 266.
      Since a defendant has the constitutional right to be tried before an unbiased judge, nonstatutory grounds for disqualification might be preserved on appeal. People v. Brown (1993) 6 Cal.4th 322, 334-335. However, a defendant may, and should, try to resolve such issues by statutory means, because the negligent failure to do so may constitute a forfeiture of the constitutional claim. Id.
      Frederick R. Bennett is court counsel for the Los Angeles County Superior Court.

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