What is a Peremptory Challenge (CCP 170.6)?
“A judge, court commissioner, or referee of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” (Code Civ. Proc., § 170.6(a)(1).) A motion trying to achieve this goal is typically known as a “170.6 motion”.
How to Structure the Motion
A judge shall be disqualified if any one or more of the following are true:
- The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
- The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding.
- The judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party.
- A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding.
- A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.
- Bias or prejudice toward a lawyer in the proceeding may be grounds for disqualification.
- The judge has received a contribution in excess of one thousand five hundred dollars ($1500) from a party or lawyer in the proceeding, and either of the following applies:
- The contribution was received in support of the judge’s last election, if the last election was within the last six years.
- The contribution was received in anticipation of an upcoming election.
(Code Civ. Proc., § 170.1; Mahnke v. Super. Ct. (2009) 180 Cal.App.4th 565, 577; Gai v. City of Selma (1998) 68 Cal.App.4th 213, 230-233.)
“It shall not be grounds for disqualification that the judge:
- Is or is not a member of a racial, ethnic, religious, sexual or similar group and the proceeding involves the rights of such a group.
- Has in any capacity expressed a view on a legal or factual issue presented in the proceeding, except as provided in paragraph (2) of subdivision (a) of, or subdivision (b) or (c) of, Section 170.1.
- Has as a lawyer or public official participated in the drafting of laws or in the effort to pass or defeat laws, the meaning, effect or application of which is in issue in the proceeding unless the judge believes that his or her prior involvement was so well known as to raise a reasonable doubt in the public mind as to his or her capacity to be impartial.”
(Code Civ. Proc., § 170.2; People v. Super. Ct. (Mudge) (1997) 54 Cal.App.4th 407; United Farm Workers of America v. Super. Ct. (1985) 170 Cal.App.3d 97, 103.)
“A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.” (Code Civ. Proc., § 170.6(a)(2); Barrett v. Super. Ct. (1999) 77 Cal.App.4th 1, 4.)
“As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.” (Stephens v. Super. Ct. (2002) 96 Cal.App.4th 54, 61-62.) In other words, section 170.6 “permits a party to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body” (Barrett v. Super. Ct. (1999) 77 Cal.App.4th 1, 4 (citations omitted).)
“[N]o party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section.” (Code Civ. Proc., § 170.6(a)(4); Birts v. Super. Ct. (2018) 22 Cal.App.5th 53, 58.)
The following outlines the conditions to which a timely and proper motion must be submitted:
Any affidavit filed pursuant to Section 170.6 shall be presented substantially in the same form. (Code Civ. Proc., § 170.6(a)(6).)
“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.” (Code Civ. Proc., § 170.6(a)(2); People v. Super. Ct. (1993) 4 Cal.4th 1164, 1180-1184.)
“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.” (Code Civ. Proc., § 170.6(a)(2).)
“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.” (Code Civ. Proc., § 170.6(a)(2); Bambula v. Super. Ct. (1985) 174 Cal.App.3rd 653, 656.)
A peremptory challenge may not be made when a subsequent proceeding is a “continuation” of an earlier action. (Jacobs v. Super. Ct. In and For Los Angeles County (1959) 53 Cal.2d 187, 190.) “Although [section 170.6] does not expressly so provide, it follows that, since the [peremptory challenge] must be made before the trial has commenced, it cannot be entertained as to subsequent hearings which are a part or a continuation of the original proceedings.” (Id.) The rule is designed to prevent forum shopping. (Id. at 191.)
“A party to a civil action making that motion under [section 170.6] shall serve notice on all parties no later than five days after making the motion.” (Code Civ. Proc., § 170.6(a)(3).)
The Court’s Decision
If the motion is timely and filed in proper form, the trial court must accept it without further inquiry, and the disqualification is effective immediately. (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1360.)
“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.” (Code Civ. Proc., § 170.6(a)(2).)
151-175 of 10000 results
Jul 08, 2021
Non, Fast Track
Kern County, CA
- Case # (Subscribe to View)
Hearing Date: Tuesday, April 17, 2018Calendar No.:Case Name:George Zakk v. One Race Productions, Inc., et al.Case No.: BC 689424Matter:(1) Preemptory Challenge to the Honorable John P. Doyle(2) Continue Hearing on Revolution Production’s Demurrer and Motion to StrikeMoving Parties:(1-2) Plaintiff George ZakkResponding Party:(1) Defendant Revolution Production Services, LLCNotice:OKTentative Ruling...
.., Revolution Films, and Does 1 thorough 20 (collectively “Defendants”) alleging...
Apr 17, 2018
- Judge John P. Doyle
Los Angeles County, CA
Background On June 3, 2019, Theodosios Roussos (“Ted”) and recently incorporated Liro, Inc. (“2019 Liro”) filed a Complaint, and on June 27, 2019, the First Amended Complaint (“FAC”) against David Kaplan (“Kaplan”) and suspended Liro, Inc. under Case No. 19STCV19139 for a declaratory relief that 2019 Liro is currently the only valid Liro entity and has the right to revive or declare as null the p...
..rry”) and Christine Roussos (“Christine”) filed the instant Motion to Strike Ted’s Peremptory Challenge. The Court considered the moving, opposition, and reply papers and rules as follows. Standard Code of Civ. Proc. Section 170.6 provides that a judge, commissioner or referee shall not try or hear any matter in any action or special proceeding when a party or an attorney appearing in the actio...
Jul 25, 2019
- Judge Dennis J. Landin
Los Angeles County, CA
Premium Escrow, Inc. v. Along Came Mary, LLC, et al.This action arose from a dispute over $15,000 in funds from an escrow, numbered 92203-LF, that was opened at Plaintiff Premium Escrow, Inc. (“Plaintiff”) for the sale of real property known as 515 W. Olive Avenue, Monrovia, CA 91016, involving seller Along Comes Marry, LLC (“ACM”) and buyers Charlie Lac and Ying Chin Wu (the “Buyers”). (Compl. ¶¶...
..ision issued an order staying the trial proceedings pending resolution of the writ petition. On October 9, 2018, the trial court vacated its August 29, 2018 order denying Plaintiff’s motion to discharge and award its costs and attorneys’ fees, thereby reinstating its earlier order of June 13, 2...
Nov 16, 2018
Wendy Chang or Jon R. Takasugi
Los Angeles County, CA
MERIBEAR PRODUCTIONS, INC. v. BAER CASE NO.: VC065653 HEARING: 06/13/19 #1 TENTATIVE ORDER Defendants SHOWROOM INTERIORS, LLC and SHOWROOM, INC.’s demurrer to Plaintiff’s Fourth Amended Complaint is OVERRULED. Defendants/Cross-Complainants BRETT BAER; CITY LIGHTS STAGING, INC.; JAIME BAER; and CALEB MORSE’s Joint Application for Order Recusing Discovery Referee is DENIED. Defendant SHOWROOM...
..§430.41(a). (See Berglund Decl., ¶4.) Notwithstanding the parties’ failure to comply with CCP §430.41, the Court will rule on the merits of the instant Demurrer. Plaintiff has filed a responsive Opposition—there is no prejudice to Plaintiff by ruling on the demurrer at this time. This action was filed in June 30, 2016 by Plaintiff/Cross-Defendant MERIBEAR PRODUCTIONS, INC. (“Meribear”) Defendant...
Jun 13, 2019
- Judge Lori Ann Fournier
Los Angeles County, CA
The court DENIES the Code of Civil Procedure section 170.6 challenge filed by Esmail Ghane on 12-17-18. Mr. Ghane’s Code of Civil Procedure section 170.6 challenge is timely because he filed it within 15 days of his appearance in this case. (Code Civ. Proc., § 170.6, subd. (a)(2).)Code of Civil Procedure section 170 states, “A judge has a duty to decide any proceeding in which he or she is not dis...
..the motion provided for in this paragraph at the time and in the manner herein provided.”Stephens v. Superior Court (Stephens) (2002) 96 Cal.App.4th 54, 59, explains, “Code of Civil Procedure section 170.6 permits a party to an action or proceeding to disqualify a judge for prejudice based on a...
Feb 05, 2019
- Judge Walter SCHWARM
Orange County, CA
The Court intends to Deny the motion to strike. Procedural Background - When Michael Ewing filed 463535 on 2/2/15, the case was assigned for all purposes to Judge O'Neill. Vince Poppen then filed a UD action on 2/19/15 (464085). That case was assigned for all purposes to Comm. Sabo in 23. - Ewing filed a motion to quash service of the summons in the UD case, and (apparently) because he...
..st Judge O'Neill. On 6/4/15, the clerk's office notified Diane that the case had been assigned to this Court, not Judge O'Neill and rejected the 170.6 as a result. - On 6/11/15, Diane filed an "Amended Motion for Peremptory Disqualification" challenging this Court under 170.6. This 170.6 was accepted and the consolidated case was transferred to Judge Baio as of 6/22/15. - Michael filed this mo...
Sep 16, 2015
- Judge Kent Kellegrew
Ventura County, CA