The danger that a judge may be prejudiced against a particular party for whatever reason has caused the legislature of California to allow each party a right to challenge a judge assigned to a case for any or no reason…a peremptory challenge similar to those granted to parties when selecting a jury.
This right should not be confused with the right to challenge the judge for good cause (i.e., known conflict of interest or prejudice) or the duty of a judge to recuse him or herself from any case in which the judge feels he or she cannot render a fair and impartial verdict.
In the practical world of litigation, the details of this type of challenge and the strategic effects on a case must be carefully considered before it is utilized. This article shall briefly describe the law and outline some of the tactical issues confronted in its use. The reader should first read our article on American Litigation.
The Basic Law
California Code of Civil Procedure Section 170.6 allows a party who timely files an “affidavit of prejudice” to disqualify a judge without any showing of cause. The affidavit of prejudice is not contestable and the disqualification of the judge is automatic. (CCP §170.6(a))
However, only one such peremptory challenge is allowed per side. (CCP § 170.6(a)(3)) Note a peremptory challenge under CCP §170.6 is not the same as a motion to disqualify a judge by a party or an attorney, i.e., a challenge for cause which is discussed in the Code at CCP §170.1.
The basis for a CCP §170.6 challenge affidavit to be filed with the Court is that the party or attorney believes that (1) the challenged judge is prejudiced against such party or attorney or his or her interest, and (2) that the party or attorney cannot have a fair and impartial trial before that judge. (CCP §170.6 (a)(2)) Any party or attorney appearing in the action has standing to make a CCP § 170.6 challenge. (CCP § 170.6 (a)(2)) But note that if a party has more than one attorney, only one of his or her attorneys may make this challenge. (Pappa v. Sup. Ct. (1960) 54 Cal.2d 350, 355.)
Once the challenge is made, it is automatically accepted by the Court and the truth of the affidavit cannot be challenged - that is why it is peremptory.
A CCP §170.6 challenge must be timely. (Grant v. Sup. Ct. (Jacobs) (2001) 90 Cal.App.4th 518, 527) The general rule is that “disqualification of the judge is permitted any time prior to the commencement of trial.” (People v. Sup. Ct. (Lavi) (1993) 4 Cal.4th 1164, 1171) Per CCP §170.6 (a)(2), a peremptory challenge may not be made after the following things occur:
- The drawing of the name of the first juror; or
- If a nonjury trial, after plaintiff’s counsel makes his or her opening statement; or
- If there is no such opening statement, after the swearing in of the first witness or the giving of any evidence; or
- “after trial of the cause has otherwise commenced.”
However, in courts that employ the master calendar system, a CCP §170.6 challenge to the assigned judge must be made at the time of such assignment. The motion must be made to the judge supervising the master calendar, i.e., before leaving the master calendar department! (Grant, supra, 90 Cal.App.4th at 524.) The master calendar system is where trial assignments are made by assigning a “trial-ready case” to a “trial-ready courtroom.” (Grant, supra, 90 Cal.App.4th at 524; Lavi, supra, 4 Cal.4th at 1175-1177.) It is vital to note this requirement since if the party or attorney does not immediately challenge the judge assigned at that first instance, but waits until they appear before that judge or another judge, they will be deemed to have waived the right to challenge that judge.
Not all courts use a master calendar system, in which case the challenge is made when one first appears before the judge. However, note that San Francisco is a master calendar system, and a CCP §170.6 challenge must be made at the time of assignment by the Presiding Judge. Otherwise, a CCP §170.6 would not be timely.
Note that the time limits applicable for the motion may depend on the role of the assigned judge, e.g. if the assignment is for "all purpose" or a more limited assignment.
At CCP Section 170.6 it provides, in part:
(2) .... If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date. If directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. If directed to the trial of a criminal cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance. If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance. If the court in which the action is pending is authorized to have no more than one judge, and the motion claims that the duly elected or appointed judge of that court is prejudiced, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion. In no event shall a judge, court commissioner, or referee entertain the motion if it is made after the drawing of the name of the first juror, or if there is no jury, after the making of an opening statement by counsel for plaintiff, or if there is no opening statement by counsel for plaintiff, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced. If the motion is directed to a hearing, other than the trial of a cause, the motion shall be made not later than the commencement of the hearing. In the case of trials or hearings not specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly as possible. The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein provided.
Watch your time limits carefully and be sure to understand the assigned judge's status in the matter.
Once the challenge is made, it is “used up” and the party and attorney will have to take the next judge assigned unless good cause can be demonstrated under CCP §170.1.
Strategy and Cautions
Challenging a judge may be the most important step a party or attorney can take in trying a case. Especially in cases involving contested interpretations of the law or fact intensive situations in which the court may have wide discretion over legal interpretations or what evidence to allow, a poor judge can make a winning case lose. The peremptory challenge is a useful tool that should be considered seriously whenever a party or lawyer has sufficient experience or knowledge about the judge to allow a reasonable fear of prejudice to arise.
Some attorneys are loathe to alienate judges by challenging one of their own. This writer, however, has spoken to many judges about that very topic, including some who are friends, and their universal reaction is that they are quite aware that there are some biased or poor judges on the bench and they should be challenged by any competent counsel. Other judges will not hold grudges based on this strategic decision in most cases.
But it must be recalled that once the challenge is made one is left with whatever judge the perhaps annoyed calendar judge might assign. One could perhaps get an even worse judge and it is vital to check what judges are available before this decision is made.
Challenging a judge can also result in a significant delay in trial. Often there is no other judge readily available and this writer has seen opposing counsel challenge a perfectly acceptable judge simply to delay the start of trial which, in that case, resulted in a delay of over two months.
It is also vital to make sure that the challenge is made correctly, with an affidavit ready and no possible waiver due to delay or failure to abide by the time limits described above. The worst of all worlds would be to challenge a judge, fail for lack of timely challenge, and then end up before the judge one just challenged.
Thus it is wise to go over the list of judges long before the day of trial and whenever one is assigned for a particular aspect of the matter and determine which judges are to be subject to the peremptory challenges, if any. As with any other part of trial preparation, careful analysis long before the day of trial is critical.