Appeal of Final Judgment: Successful Party Entitled to 2nd Peremptory Challenge

  Code of Civil Procedure 170.6 provides the statutory basis to disqualify a judge from hearing a proceeding. A peremptory challenge is usually made by filing an affidavit or declaration under penalty of perjury that the judge is prejudiced against a party or attorney for a party using a locally approved form.

  If the affidavit is duly presented (timely), no further act or proof is required and a new judge must be assigned, except that no party or attorney shall be permitted to make more than one such motion in any action or proceeding, and if there are multiple plaintiffs or defendants, only one motion for each side may be made.

  What about the circumstance where an appeal is taken from a judgment or interim order? In that circumstance, section 170.6 provides that a successful party on appeal may exercise a second peremptory challenge provided the appeal is from a final judgment, but not if the appeal is from an interim order.

  The case is McNair v. Superior Court (National Collegiate Athletic Assn.): “…[W]e hold that Code of Civil Procedure section 170.6, subdivision (a)(2)  allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision.”

Judges: Disqualification Not Required Where Judge Officiates at Wedding

  Code of Civil Procedure section 170.1 provides that a judge shall be disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Does the fact that a judge officiates at a wedding of a close relative of the adverse party’s attorney require disqualification?

  No, writes the court in Wechsler v. Superior Court citing California Supreme Court authority. When a judge has no personal or social relationship with the attorney and the judge’s only role at the wedding is that of an officiant, disclosure is required but disqualification is not mandated absent additional facts which clearly establish the appearance of bias. [Statutes relating to the disqualifications of judges can be found at Code of Civil Procedure sections 170-170.9.]