How to Make a Motion to Recuse a Judge in California

A motion to recuse (“MTR”) is a legal motion filed in court that seeks to remove a judge from presiding over a civil lawsuit or a criminal trial.

Some examples of when these motions get filed include:

  • at the beginning of a civil case, John's lawyer files an MTR to remove the judge because she knows many of the facts in the case.
  • during a rape trial, the prosecutor files a motion to recuse to disqualify the judge because he is biased.
  • a trial for burglary starts and Jamal's attorney files an MTR to remove the judge because the judge served as a lawyer earlier in the case.

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

Current law states that an MTR can be filed in order to:

  • remove a judge “for cause,” or
  • disqualify a judge due to a “peremptory” challenge.

For cause” means a party can try to disqualify a judge, per a motion to recuse, if certain circumstances are present. Some of these are if the judge:

  • has a personal interest in the case,
  • served as a lawyer in the case, or
  • has a financial interest in the proceeding.

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.

If an MTR is made and it is granted, the judge is removed from the case and a new judge is assigned. If a motion is denied, the judge remains on the case.

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:

presiding judge
A motion to recuse (“MTR”) is a legal motion filed in court that seeks to remove a judge from presiding over a civil lawsuit or a criminal trial.

1. What is the legal definition of a motion to recuse?

An MTR is a legal motion filed in court that seeks to remove or disqualify a judge from presiding over a legal case.

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.

There are a variety of reasons why a party may want to have a judge removed from a case. A few examples include situations where the judge:

  • has a personal interest in the case,
  • is biased, or
  • has a financial interest in the proceeding.

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

2. Under what circumstances can a party file an MTR?

In the 1980s, California adopted a number of statutes that determine when a party in a legal matter can file a motion to recuse a judge. Current law states that an MTR can be filed in order to:

  • remove a judge “for cause” (per California Code of Civil Procedure 170.1 through 170.5), or
  • disqualify a judge due to a “peremptory” challenge (per California Code of Civil Procedure 170.6).

3. What is a “for cause” challenge?

California Code of Civil Procedure 170.1 states that a party can try to remove a judge (per an MTR) “for cause.”1

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.2

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 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.3
motion to recuse
A party that wishes to submit a challenge for cause must do so via a motion to recuse.

4. What are the procedural matters in filing an MTR for a “for cause” challenge?

A party that wishes to submit a challenge for cause must do so via a motion to recuse. The motion has to state the 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.

5. What are “peremptory” challenges?

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.4

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.5

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.6

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.”7

6. What are the procedural matters in filing an MTR for a “peremptory” challenge?

When raising a peremptory challenge, a party must file an MTR that includes specific language listed in CCP 170.6.8

A judge can only be challenged if he has not determined a contested issue of fact in a given case. This typically means a party has to file an MTR, for a peremptory challenge, within 10 days after the party receives notice of the judge's assignment to the case.9

A peremptory challenge is also considered timely if it is filed before a hearing begins.10

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.

Please note that only one peremptory challenge can be made in any one case.11

7. 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 filing a motion to recuse in California? Call us for help…

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

If you or someone you know is in a civil or criminal proceeding and wishes to remove a judge, per a motion to recuse, 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 Nevada or Colorado, please see our article on Motions to Recuse / Disquality a Judge in Nevada and How to File a "Motion to Recuse a Judge" in Colorado.


Legal References:

  1. California Code of Civil Procedure 170.1 CCP.

  2. See same.

  3. California Code of Civil Procedure 170.1(a)(6) CCP.

  4. California Code of Civil Procedure 170.6 CCP.

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

  6. See California Code of Civil Procedure 170.6 CCP.

  7. See same.

  8. See same.

  9. See same.

  10. Villarreal v. Superior Court (1973) 35 Cal.App.3d 559.

  11. California Code of Civil Procedure 170.6 CCP.

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