Peremptory challenges of a trial judge are governed by Code of Civil Procedure section 170.6. The section permits a party to an action to summarily disqualify a judge based on a sworn statement of the party’s belief that the judge is prejudiced against that party or the party’s attorney.
Provided the statement is timely and in proper form, the judge has no discretion and must accept the challenge. The right to disqualify a judge under section 170.6 is automatic in the sense that a good faith belief in prejudice is sufficient – no showing of actual prejudice is required. In common parlance the use of an affidavit pursuant to section 170.6 is known as “papering the judge.”
Generally, a section 170.6 challenge is permitted at any time before the commencement of a trial or hearing. There are, however, three exceptions to the general rule: the all purpose assignment rule, the 10-day/5-day rule, and the master calendar rule. In any given factual scenario, the court must determine whether any of the exceptions apply, or whether the general rule applies. 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.
The all-purpose assignment rule. The challenge must be filed within 10 days for criminal cases, or within 15 days for civil cases, after notice of the judge’s all-purpose assignment. This rule applies when a judge has been assigned to hear a case for “all purposes.” The time to file a peremptory challenge to the all-purpose assignment is extended pursuant to Code of Civil Procedure 1013 when notice of the assignment is served by mail. (California Business Council v. Superior Court (Wilson)).
The 10-day/5-day rule. The challenge to a judge who has not been assigned for all purposes must be filed at least five days before the trial date if the judge’s identity is known more than 10 days before that date.
The master calendar rule. The challenge must be filed no later than the time the case is assigned for trial. The master calendar rule applies when a judge is managing a true master calendar. A judge manages a true master calendar when the judge assigns trial-ready cases to trial-ready courtrooms for it is this circumstance that justifies the master calendar rule. The rule is established because there is a trial judge ready and able to commence a trial and it is impracticable to allow litigants the time period permitted under the other rules to consider the advisability of making a section 170.6 challenge. To comply with the master calendar rule a party must make any 170.6 challenge immediately upon assignment from the master calendar. The rule allows the judge in the master calendar courtroom to promptly utilize a challenged trial judge for another pending trial.
Exception to master calendar rule. When cases are assigned from the master calendar, not for immediate trial but for future trial, the justification for the master calendar rule does not exist and the rule does not apply. A section 170.6 challenge is timely if filed prior to commencement of the trial or hearing where none of the other exceptions apply. See, Entente Design, Inc. v. Superior Court.
Michael Daymude consults with clients and accepts cases filed in all Los Angeles area courts, including those that involve a peremptory challenge and motions to disqualify a judge or other hearing officer. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael at 818.971.9409.