Appeals/Post-Trial Matters Litigation Strategy Pretrial Matters

When the Judge Won’t Budge

164569828You’ve tried to disqualify the judge in your case, but the judge won’t budge. What do you do? In California, you file a writ petition.

If you unsuccessfully try to disqualify a judge under CCP §§170.1-170.5 or challenge a judge under CCP §170.6, you can’t appeal the judge’s decision—the only way to get appellate review is by petitioning for a writ of mandate under CCP §170.3(d) after a second judge agrees that the challenged judge should not be disqualified under the procedure in CCP §170.3(c)(5).

Here are the main restrictions to keep in mind when filing a writ in these circumstances:

  1. Only parties may file the writ petition. Only a party to the trial court proceeding may file a writ petition under CCP §170.3(d). But interestingly, a dismissed party may count too; in Frisk v Superior Court (2011) 200 CA4th 402, 132 CR3d 602, the court addressed the merits of a writ petition challenging the trial court’s rejection of a peremptory challenge under CCP §170.6 made by a co-defendant who had already been dismissed from the case.
  2. Petitioner must seek mandate, not prohibition. Because CCP §170.3(d) provides that a disqualification order may be reviewed “only by a writ of mandate,” the petitioner must seek mandate rather than prohibition. See People v Hull (1991) 1 C4th 266, 269, 2 CR2d 526.
  3. Only 10 days to file petition. The deadline to file a writ petition is tight: a party must file and serve a writ petition “within 10 days after service of written notice of entry of the court’s order determining the question of disqualification.” CCP §170.3(d). And the statute doesn’t provide for any extension of this deadline. Although CCP §170.3(d) is part of a code section on challenges for cause, the California Supreme Court has held that it applies to peremptory challenges as well. See People v Hull (1991) 1 C4th 266, 270, 2 CR2d 526.

If your writ petition is accepted, the appellate court will generally review the order denying the motion for judicial disqualification for abuse of discretion. But de novo review applies when proper application of the disqualification statute turns on undisputed facts.

Note that there is possibly a narrow exception to the writ only rule: a decision denying disqualification is reviewable by appeal from the final judgment when the appeal is based on denial of constitutional due process because of the judge’s bias (as opposed to a statutory basis for disqualification). People v Brown (1993) 6 C4th 322, 24 CR2d 710. But even in this limited circumstance, the appellate court may not grant review. The California Supreme Court suggested that a party who doesn’t first seek writ review may forfeit the right to raise the due process claim on appeal from the final judgment. The court also suggested that when the writ is heard and denied on its merits, the matter may be precluded on appeal by the “law of the case” doctrine. 6 C4th at 336 n11.

Here’s the bottom line: if you move to disqualify or challenge a judge and the judge won’t budge, file a writ and do it quick!

For everything you need to know about filing a writ petition in California, turn to CEB’s California Civil Writ Practice. For a discussion on disqualifying a judge, check out CEB’s California Trial Practice: Civil Procedure During Trial, chapter 6.

Other CEB blog posts you might find interesting:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 replies on “When the Judge Won’t Budge”

The odds that a timely writ will not be granted are very thin. The judge is supposed to budge, that’s the purpose of 170.6. Most writs are granted if timely filed, that’s why timely, properly filed 170.6 motions are almost never opposed by the judge.

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