Disqualifying a Judge in a Civil Case

What happens if you don’t like the Judge assigned to your civil case? Each “side” has the right to exercise one peremptory judicial challenge in a single action—i.e., to invoke the right to disqualify the assigned judge generally “for prejudice” without specifying or providing any particular grounds or reasons, subject to applicable time limitations. See Swift v. Super.Ct (Mitchell)(2009) 172 CA4th 878, 885, 91 CR3d 504, 509, fn. 2—party’s bad faith not a valid basis for denying timely § 170.6 challenge.

If the challenge is made in a master calendar department, the supervising judge will make the reassignment. In other cases, the § 170.6 affidavit is presented directly to the judge being challenged; and it is the challenged judge’s DUTY to transfer the matter to another judge for hearing. CCP § 170.6(a)(4).

Where a disqualification motion is timely filed and in proper form, the trial court is bound to accept it without further inquiry. (Maas v. Sup.Ct. (People)(2016) 1 C5th 962, 972, 209 CR3d 571, 575; Stephens v. Sup.Ct. (Stephens) (2002) 96 CA4th 54, 59, 116 CR2d 616, 620.) Lack of a good faith belief that the judge is prejudiced is irrelevant. An affidavit filed in “bad faith” is nonetheless effective. (School Dist. of Okaloosa County v. Sup.Ct. (City of Orange) (1997) 58 CA4th 1126, 1136, 68 CR2d 612, 619; People v. Sup.Ct. (Tejeda) (2016) 1 CA5th 892, 896, 910, 205 CR3d 200, 202-203, 222.)

The “general rule” is that a challenge is permitted any time before commencement of a trial or hearing. (People v. Sup.Ct. (Lavi) (1993) 4 C4th 1164, 1171, 17 CR2d 815, 817.) In master calendar courts, a peremptory challenge is timely if exercised no later than when the case is assigned for trial by the master calendar judge. (CCP § 170.6(a)(2); see Grant v. Sup.Ct. (Jacobs), supra, 90 CA4th at 526, 108 CR2d at 829-830.)

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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