Code of Civil Procedure 170.6 – Disqualification of a Judge on Grounds of Prejudice

Code of Civil Procedure 170.6 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial if the judge is prejudiced against a party or attorney.

In particular, the statute states:

“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.”

Please note that when a party tries to challenge, or disqualify, a judge on the basis of prejudice, the challenge is often referred to as a “peremptory challenge.”

“Disqualification” means that a judge is removed from a court case and an alternate judge gets assigned to the proceedings.

To exercise a peremptory challenge, a party must:

1. file a motion to recuse, and
2. follow the proper procedural elements as to filing this motion.

Please note that under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal matter.

A peremptory challenge, per CCP 170,6 is different than a “for cause” challenge, per Code of Civil Procedure 170.1. A “for cause” challenge means that a party can try to disqualify, or remove, a judge if certain circumstances are present (e.g., the judge has a personal interest in the case).

In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon:

• California’s probate code – for disqualification of probate judges, and
• California’s Constitution – for removal when it is recommended by the Commission on Judicial Performance.

Our California criminal defense attorneys will highlight the following in this article:

• 1.When can a judge be disqualified from a legal case under CCP 170.6?
• 2. How does a party attempt to disqualify a judge per Code of Civil Procedure 170.6?
• 2.1 What is a motion to recuse?
• 2.2 What are the procedural elements in filing a motion to recuse?
• 3. What is a “for cause” challenge under Code of Civil Procedure 170.1?
• 4. Are there other grounds for removal of a judge?

1. When can a judge be disqualified from a legal case under CCP 170.6?

Code of Civil Procedure 170.6 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial if the judge is prejudiced against a party or attorney.

When bringing a peremptory challenge, it is not necessary for the party to show that the judge is actually biased. It is also not necessary for the party to provide any factual basis for his claim.¹

The party just has to state that he believes the judge is prejudiced against him and the party does not believe he can have a fair and impartial trial.²

Once a peremptory challenge is made, the judge cannot oppose it. As long as the challenge is made in a timely manner, the judge immediately loses jurisdiction over the case. This means any action that he makes in the case shall be considered “void.”³

Please note that only one peremptory challenge is allowed per side in a legal case.

2. How does a party attempt to disqualify a judge per Code of Civil Procedure 170.6?

To properly exercise a peremptory challenge, per CCP 170.6, a party must do two things. These are:

1. file a motion to recuse, and
2. follow the proper procedural elements as to filing this motion.

2.1 What is a motion to recuse?

A motion to recuse is a legal motion filed in court that says a judge should be disqualified, or removed, from a legal case. In the context of CCP 170.6, the motion would state that a judge should be removed because he/she is biased.

The motion can be brought by either a prosecutor or a defense attorney, or a plaintiff or defendant. And, a motion to recuse can be filed in either a civil suit or in a criminal trial.

Please note that under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal case.

2.2 What are the procedural elements in filing a motion to recuse?

When raising a peremptory challenge, a party must file an MTR that includes specific language listed in CCP 170.6.⁴

Note that this motion must be timely filed. In general, this means that a disqualification of a judge can be attempted any time prior to the commencement of trial.⁵

Typically, though, a party tries to file a motion to recuse, for a peremptory challenge, prior to a judge determining a contested issue of fact in a case. This usually means a party has to file a motion to recuse within 10 days after the party receives notice of the judge’s assignment to the case.⁶

If a peremptory challenge is granted, a new judge will be assigned to the case. If a challenge is denied, the judge will remain on the case.

3. What is a “for cause” challenge under Code of Civil Procedure 170.1?

California Code of Civil Procedure 170.1 states that a party can try to remove a judge “for cause.”⁷

Under CCP 170.1, a judge can be removed “for cause” if any one or more of the following are true:

• the judge has personal knowledge of disputed facts in the case,
• the judge served as a lawyer in the proceeding or advised a party in the proceeding,
• the judge has a financial interest in the proceeding,
• the judge, or the judge’s spouse, is a party in the case or an officer, director, or trustee of a party, or
• the judge, or a person related to the judge, is associated in private practice of law with a lawyer in the case.⁸

In addition, a judge can remove himself from a case, “for cause,” if for any reason:

• the judge believes his recusal would further the interests of justice,
• the judge believes there is a substantial doubt as to his ability to be impartial, or
• a person aware of the facts might cast doubt on the judge’s ability to be impartial.⁹

4. Are there other grounds for removal of a judge?

In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon some statutes and the State Constitution.

For example, California Probate Code 7060 allows for the disqualification of probate judges in some circumstances.

Further, the California Constitution provides for the disqualification of judges who have been either indicted or recommended for removal by the Commission on Judicial Performance.

For legal representation…

For questions on motions to recuse a judge in Colorado, please see our article on How to File a “Motion to Recuse a Judge” in Colorado.

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