Q. What do I need to do in order to disqualify a Judge from hearing my
family law case?
A. There are two types of disqualifications available to you: Peremptory
Disqualifications and Disqualifications for Cause. This Blog discusses
only peremptory disqualification and I will write separately about disqualificaitons
A peremptory disqualification can be made without notice to the other
side and may be either in oral or written form. An oral motion must be
accompanied by a statement under oath that the judicial officer to whom
the case is assigned is prejudiced agains the party or his or her attorney
and that the party or attorney cannot receive a fair trial or hearing.
C.C.P. section 170.6(a)(2).
A written motion must include a statement under penalty of perjury also
stating that the judicial officer to whom the case is assigned is prejudiced
and the party or attorney for the party cannot obtain a fair trial or hearing.
Either way, nothing more than the conclusion needs to be offered - you
don't need to explain why you believe the judge is biased.
The form of the affidavit is set forth in C.C.P. section 170.6(a)(5).
Section 170.6(6) gives you the oral statement - which must set out substantially
the same allegations as the declaration per section 170.6(a)(5).
No formal motion needs to be filed (a Declaration is enough) so long as
the request for disqualification is express and clear.
The biggest hurdle for peremptory disqualifications is their timing: It
is must be tendered before the Judge first commences a hearing on the
merits or has issued a ruling on a disputed issues - most important, they
cannot be used to disqualify a judge whose ruling you didn't like,
after the fact. This means that you must communicate the disqualification
before the first OSC hearing or the hearing on a Motion, or if there has
been no prior hearing then before the commencement of trial. A challenge
may still be filed against a Judge who only presided over a pretrial conference
or other hearing, so long as the judge did not determine a contested issue
of fact relating to the merits of the case.
However, many jurisdictions (including the Indio Court within Riverside
County) use direct calendar assignments so a specific judge (or department
number when a particular judge is known to sit there) is assigned to the
case at the time it is first filed for all purposes. A notice is provided
the filing party advising who that judge is and giving notice that any
disqualification must be filed within 15 days after the date of the notice
(which is typically when the first party appears in the action) of the
assignment. The responding party typically must file a disqualification
within 10 days of making an appearance in the action (i.e., filing a Response
or a Responsive Declaration to an OSC or Motion), or risk being deemed
to have waived the disqualification.
Disqualifying judges for cause pursuant to
C.C.P. section 170.3 is a whole different issue, and a blog for another day.
It is imperative that you research the policies in your own particular
California jurisdiction. Different scenarios include: Assignments to judge
for all purposes (i.e., Indio, California); assignment by master calendar
judges; assignments to judges assigned to hear the case for all purposes;
one-judge courts; and former judge assigned to conduct retrial after an
appeal. The timing for filing the disqualification differs for each.
Need more information on how to disqualify your judge?
Author: T.W. Arnold