CCP 170.1 – Motion to Recuse a Judge in California

Code of Civil Procedure 170.1 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial in certain situations. In particular, the code section states:

“(a) A judge shall be disqualified if any one or more of the following are true:

(1) (A) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding….

(2) (A) The judge served as a lawyer in the proceeding…

(3) (A) The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding…”

Please note that other reasons do exist and the reasons within the statute are often referred to as “for cause” reasons to disqualify a judge.

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

If one of the reasons within CCP 170.1 exists, then a party attempts to disqualify a judge by:

1. filing a motion to recuse, and
2. following 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.

Challenges “for cause” are different than peremptory challenges of a judge, per Code of Civil Procedure 170.6. A “peremptory” challenge means that a party can try to disqualify a judge on the basis that he/she is biased.

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 under CCP 170.1?
• 2. How does a party attempt to disqualify a judge?
  • 2.1. What is a motion to recuse?
  • 2.2. What are the procedural elements?
• 3. What are peremptory challenges of a judge?
• 4. Are there other grounds for removal of a judge?

California Code of Civil Procedure 170.1 CCP states that a party to a civil or criminal case can try to remove a judge “for cause.”

1. When can a judge be disqualified under CCP 170.1?

California Code of Civil Procedure 170.1 CCP states that a party to a civil or criminal case can try to remove a judge “for cause.” This means that the judge can be removed, or disqualified, from a case for a reason specifically listed within the statute.

Under CCP 1701.1, the “for cause” reasons as to when a judge can be disqualified are when any one or more of the following are true:

• the judge has personal knowledge of disputed evidentiary facts concerning the proceeding¹,
• the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding²,
• the judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding³,
• the judge, or the spouse of the judge, is a party to the proceeding or is an officer, director, or trustee of a party⁴,
• a lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding⁵,
• by reason of permanent or temporary physical impairment, the judge is unable to perceive the evidence properly or is unable to conduct the proceeding properly, or
• the judge has received a contribution in excess of $1500 from a party or lawyer in the proceeding⁷.

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.⁸

2. How does a party attempt to disqualify a judge?

If one of the reasons within CCP 170.1 exists, then a party can attempt to disqualify a judge by:

1. filing a motion to recuse, and
2. following 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 for a reason listed within CCP 170.1.

The motion can be brought by either a prosecutor or a defense attorney. 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?

When filing a motion to recuse, the document must state the specific grounds for which the judge should be disqualified.

If the motion is granted, the judge is removed from the case. If the MTR is denied, the judge remains on the case.

California law states that a challenge for cause must be filed at the earliest practicable opportunity after a party discovers the grounds for disqualification. The determination as to what is “the earliest practicable opportunity” is largely based on the facts of a given case.

Past California court cases have said that a motion to recuse was timely filed when it was brought:

• before the hearing of any issue of fact in the action⁹,
• before trial commenced¹⁰,
• before the judgment became final¹¹, and
• after judgement where ground of disqualification was not known until that time¹².

3. What are peremptory challenges of a judge?

Challenges “for cause” and different than peremptory challenges of a judge. A “peremptory” challenge means that a party can file a motion to recuse and try to remove a judge on the basis that he/she is biased.¹³

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.¹⁴

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.¹⁵

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.”¹⁶

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.

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