CCP § 170.6 – Disqualification of Judge for Bias or Prejudice

Code of Civil Procedure § 170.6 CCP is the California law by which a judge can be disqualified (or removed) from presiding over a civil case or a criminal trial if the judge is prejudiced against you or your attorney. When you try to challenge or disqualify a judge on the basis of prejudice, it is referred to as a “peremptory challenge.”

Here are three key things to know:

1. To exercise a peremptory challenge, you must file a motion to recuse and follow the proper procedural elements as to filing this motion.
2. A peremptory challenge under CCP 170.6 is different than a “for cause” challenge, per Code of Civil Procedure 170.1.
3. A judge can also be removed based on California’s probate code or the state constitution.

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

• 1. When can a judge be disqualified?
• 2. How do I attempt to disqualify a judge?
• 3. What is a “for cause” challenge?
• 4. Are there other grounds for removal of a judge?
• Additional Resources

1. When can a judge be disqualified?

Code of Civil Procedure 170.6 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over

• a civil lawsuit or
• a criminal trial if the judge is prejudiced against you or your attorney.

When bringing a peremptory challenge, it is not necessary for you to show that the judge is actually biased. It is also not necessary for you to provide any factual basis for your claim.¹

You just have to state that you believe the judge is prejudiced against you and you do not believe you can have a fair and impartial trial.²

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 the judge makes in the case shall be considered “void.”³

Please note that only one peremptory challenge is allowed per side in a legal case.

2. How do I attempt to disqualify a judge?

To properly exercise a peremptory challenge, per CCP 170.6, you must do two things. These are:

1. file a motion to recuse, and
2. follow 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. In the context of CCP 170.6, the motion would state that a judge should be removed because they are biased.

The motion can be brought by either

• a prosecutor or
• a defense attorney, or
• a plaintiff or
• defendant.

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 raising a peremptory challenge, you must file an MTR that includes specific language listed in CCP 170.6.⁴

Note that this motion must be timely filed. In general, this means that disqualification of a judge can be attempted any time prior to the commencement of trial.⁵

Typically, though, you try to file a motion to recuse, for a peremptory challenge, prior to a judge determining a contested issue of fact in a case. This usually means you have to file a motion to recuse within 10 days after you receive notice of the judge’s assignment to the case.⁶

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.

3. What is a “for cause” challenge?

California Code of Civil Procedure 170.1 states that you can try to remove a judge “for cause.”⁷

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 you or other 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.⁸

In addition, a judge can remove himself from a case, “for cause,” if for any reason:

• the judge believes their 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.⁹

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.

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.

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Disqualification of Federal Judges for Bias or Prejudice – University of Chicago Law Review.
• Giving up Appearances: Judicial Disqualification and the Apprehension of Bias – British Journal of American Legal Studies.
• Disqualification for Bias of Judicial and Administrative Officers – New York University Law Quarterly Review.
• Disqualification of Judges for Bias or Prejudice–A New Approach – Utah Law Review.
• Theories of Judging and Judge Disqualification – New York University Law Review.

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