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How Do I DISQUALIFY a Judge From Hearing My Case?


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 for cause.

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