Code of Civil Procedure 170.1 CCP - Grounds to Disqualify a Judge

Remove a judge from a trial? — Code of Civil Procedure 170.1 CCP

California attorney Neil Shouse explains the process of how to recuse a judge from presiding over a criminal trial or civil procedure. Code of Civil Procedure 170.1 CCP lays out the groundwork for removing a judge from either a criminal trial or civil trial. A motion to recuse a judge is the legal process also known as a “for cause” challenge. A motion to recuse can be made by either a criminal defense attorney or a prosecutor in criminal trial, and by either the plaintiff or defendant in a civil case. If the motion is granted, then a new judge will be assigned to the trial. There are several reasons why a judge can be removed or disqualified from trial, including: The judge personally knows information about the facts of the case, the judge at one time served as an attorney in the case, the judge would benefit financially from the outcome of the case in a way that makes them biased, or the judge or his/her spouse is a party in the case. But any reason that might make a judge unfairly partial to one side or the other, could possibly lead to a recusal. The Fifth and Fourteenth Amendments to the United States Constitution contain “due process” clauses which state that everybody is entitled to fair and impartial trials. A large part of that right is making sure the judge is not biased. Code of Civil Procedure 170.1 CCP lays out how that process is handled in a California court. More info at https://www.shouselaw.com/motion-to-recuse or call (888) 327-4652 for a free consultation. Contact our attorneys here at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout 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 actually 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:

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

attorney speaking with 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 from a legal case 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 properly perceive the evidence or is unable to properly conduct the proceeding6, 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 in filing a motion to recuse?

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.
attorneys hard at work
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

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.

Are you interested in trying to disqualify the judge in your California court case? Call us for help…

california legal help
Call us for help at (855) LAW-FIRM

If you or someone you know is in a civil or criminal proceeding and wishes to disqualify a judge, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.

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.

Legal References:

  1. California Code of Civil Procedure 170.1a1A CCP.

  2. California Code of Civil Procedure 170.1a2A CCP.

  3. California Code of Civil Procedure 170.1a3A CCP.

  4. California Code of Civil Procedure 170.1a4 CCP.

  5. California Code of Civil Procedure 170.1a5 CCP.

  6. California Code of Civil Procedure 170.1a7 CCP.

  7. California Code of Civil Procedure 170.1a9A CCP.

  8. California Code of Civil Procedure 170.1a6 CCP.

  9. People v. Schoonderwood (1945), 72 Cal. App. 2d 125.

  10. Jacobs v. Superior Court of Los Angeles County (1959), 53 Cal. 2d 187.

  11. Lindsay-Strathmore Irrigation Dist. v. Superior Court of Tulare County (1920), 182 Cal. 315.

  12. Muller v. Muller (1965), 235 Cal. App. 2d 341.

  13. California Code of Civil Procedure 170.6 CCP.

  14. See same. See also Solberg v. Superior Court (1977) 19 Cal.3d 182.

  15. See California Code of Civil Procedure 170.6 CCP.

  16. See same.

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