Disqualification of Judges Under Code of Civil Procedure Section 170.4(c)(1)

• Publication year: 2019
• Author: Michael G. Loeffler

Disqualification Of Judges Under Code of Civil Procedure Section 170.4(c)(1)

Michael G. Loeffler

Michael Loeffler has practiced family law since 1975. He was a Mental Health Hearing Officer for fifteen years. He was the head of the Area VI Developmental Disabilities Board for ten years. He graduated with highest honors from the University of California, Davis, where he was a member of Phi Beta Kappa, and from the University of The Pacific, McGeorge School of Law, where he attained membership in The Traynor Society. He is also a second degree black belt in aikido and a former marathon runner.

There is a fascinating but largely unknown procedure in the Code of Civil Procedure for disqualification of judges. The purpose of this article is to educate the legal community about this subject.

When lawyers and judges think about the subject of disqualifying a judge, most of us immediately focus on Code of Civil Procedure section 170.6 procedure at the beginning of a case.

However, can you disqualify a judge for cause after the initial pleading stage? Surprisingly, yes.

This area of law is complex. Picture yourself back in law school, trying to work through the labyrinth of the UCC or CEQA. Or perhaps working on a 3000-piece jigsaw puzzle, where every color is the same. To make any sense of this, it is important to first understand the scenarios when it may apply.

Code of Civil Procedure section 170.3(c)(1) provides the procedure for a party to seek to disqualify a judge after the time to file a challenge under Code of Civil Procedure section 170.6 has passed:

If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers.

When can this procedure be used? Under the various subdivisions of Code of Civil Procedure section 170.1, there are many different circumstances. These include, but are not limited to:

1. When a judge has given advice to a party;
2. The judge believes that his or...