The procedure to disqualify a judge in California is the topic of this blog post. A party can invoke the procedure to disqualify a judge in specific situations. Examples of these situations which are common include cases where the judge has a financial interest in a party to the legal action such as a judge that owns stock in a big bank or corporation, or cases where a judge has exhibited a clear bias or prejudice against an attorney, party or witness. Note that a party can also disqualify a court commissioner as well as a referee using the same procedure. I want to emphasize that just because a judge has repeatedly ruled against a party does not constitute sufficient evidence by itself to prove bias or prejudice.
Any attorney or party that wishes to disqualify a judge should act at the earliest opportunity after they discover the facts that constitute grounds to disqualify the judge. They must also serve copies of the verified statement and all attachments on each party or their attorney who have appeared in the case and also personally serve copies of this statement and all attachments on the judge, or on his or her clerk, provided that the judge is present in the courthouse or in chambers. See Code of Civil Procedure section 170.1 for more details. Click here to read the statutes http://leginfo.legislature.ca.gov/faces/codes.xhtml
Code of Civil Procedure section 170.1 lists numerous situations where a judge is considered disqualified but to keep this blog post as brief as possible I will only discuss the two most common examples I have come across.
Code of Civil Procedure section § 170.1 states in pertinent part that a judge is disqualified where, for any reason:
“The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding”. See Code of Civil Procedure § 170.1(a)(3)(A)
“Other persons aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”. See Code of Civil Procedure § 170.1(a)(6)(A)(iii).
Code of Civil Procedure §170.5 states in pertinent part that, “For the purposes of Sections 170 to 170.5, inclusive, the following definitions apply:
(a) “Judge” means judges of the superior courts, and court commissioners and referees.
(b) “Financial interest” means ownership of more than a 1 percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value in excess of one thousand five hundred dollars ($1,500), or a relationship as director, advisor or other active participant in the affairs of a party, except as follows:
(1) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in those securities unless the judge participates in the management of the fund.”
The fact that a judge has a financial interest in a party to a legal action in which they are presiding is grounds for disqualification not to mention the fact that other persons aware of this fact might reasonably entertain a doubt that the judge would be able to be impartial.
A California Court of Appeal has stated that the test is objective in that “The situation must be viewed through the eyes of the … average person on the street” as of the time the motion is brought. United Farm Workers of America v. Sup.Ct. (Maggio, Inc). (1985) 170 Cal. App. 3d 97, 104 (emphasis added).
“The word ‘might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” United Farm Workers of America v. Sup.Ct. (Maggio, Inc.), supra, 170 Cal.App. 3d at p. 104 (emphasis added).
Published cases from the California Courts of Appeal have stated that bias exists when there is evidence showing that a judge is clearly predisposed to a case or a particular issue in a certain way or exhibits bias toward a party. This means prejudging a case or issue before all of the facts and evidence have been presented.
The United States Supreme Court has stated that when a judge exhibits bias and prejudice towards an attorney, party or witness that deprives a party of their right to a fair and impartial adjudicator and also deprives them of the right to a fair trial in a fair tribunal which is a basic requirement of due process.
The Canons of Judicial Ethics also prohibit exhibiting bias or prejudice as well.
Attorneys or parties in California that would like to view a sample 12 page verified statement to disqualify a judge in California containing brief instructions, a sample declaration and memorandum of points and authorities with citations to case law and statutory authority and verification sold by the author of this blog post can see below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.