Sun. May 26th, 2024

Disqualification of a Judge for Prejudice



There are times when the disqualification of a judge can be an issue. The Code of Civil Procedure 170.6 CCP is the California law that says a judge can be disqualified from presiding over a civil lawsuit or criminal trial if the judge seems to be prejudiced against one of the parties or attorneys.

If somebody wants to challenge the judge, they don’t have to prove that the judge is biased and don’t have to give any factual reasons for their claim. They have to say that they believe the judge is prejudiced and don’t think they can have a fair trial.

As soon as somebody makes this challenge, the judge must stop presiding over the case and allow it to be assigned to another judge. The challenge must be made in a timely manner, or else it will not be accepted.

Each side gets one peremptory challenge regarding the judge in a case.  A judge can also be challenged for cause, which is discussed in detail below.

The California Code of Civil Procedure CCP 170.6(a)(1) says, a judge, court commissioner, or referee of a superior court of California shall not try a civil or criminal action or special proceeding nor hear any matter that involves a contested issue of law or fact when it is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.”

When someone attempts to challenge, or disqualify, a judge on the grounds of prejudice, this challenge is often called a “peremptory challenge.”

To be “disqualified” means a judge is removed from a court case, and an alternate judge will get assigned to the proceedings. Any party in a case who wants to seek a peremptory challenge must file a motion to recuse and then follow the proper legal procedures.  Our Los Angeles criminal defense lawyers will review further below.


To disqualify a judge with a peremptory challenge, you must do two things:

  • file a motion to recuse and
  • follow the correct steps when filing this motion.

A motion to recuse is a legal motion that asks the court to remove a judge from a case because they may be biased. A motion to recuse a judge can be filed by the prosecutor, the defense attorney, or the plaintiff or defendant in either a criminal or civil case.

If you want to disqualify a judge, you must file a motion that includes specific language listed in the law at California Code of Civil Procedure CCP 170.6. This motion must be filed on time. This means you can try to disqualify a judge any time before the trial starts.

Usually, people try to file this motion before the judge decides a disputed fact in the case. This usually means filing the motion within ten days after you receive notice that the judge is assigned to your case.

If the court grants the peremptory challenge, a new judge will take over the case. If the motion to recuse is deficient in some way, then it will be denied, and the current judge will remain on the case unless another motion is filed correctly. Attempting to remove a judge requires a specific set of procedures to be followed, or you will be denied.


Two challenges exist when seeking to recuse a judge from a case. These challenges are known as peremptory challenges and challenges for cause.

When making a peremptory challenge, the party making the challenge simply has to allege prejudice. When there is a perceived conflict of interest, a judge can be removed for cause.

Under the California Code of Civil Procedure CCP 170.1, a party can try to remove a judge from a case for cause if they believe the judge has a conflict of interest for various reasons.

This could be because the judge has personal knowledge of disputed facts in the case or because the judge served as a lawyer in the proceeding or advised a party in the proceeding.

The judge could also be removed from the case if they have a financial interest in it or are related to one of the parties involved. Further, a judge could be removed if they, or someone related to the judge, is associated in the private law practice with a lawyer on the case.

The presiding judge can also decide to remove themselves from a case. There are other reasons why a judge might remove themselves from a case:

  • If the judge thinks that recusing themselves would further the interests of justice,
  • If the judge thinks there is substantial doubt as to their ability to be impartial, or
  • If someone who knows all the facts could doubt the judge’s ability to be impartial.

There are no limits on the number of for cause challenges regarding the presiding judge for the parties involved in a case.


The California Commission monitors all state judges on Judicial Performance. If a judge commits misconduct or violates an ethical rule, they can be suspended or removed from the bench entirely. A probate judge can be disqualified for specific reasons under the California Probate Code at 7060 CPC.

Under the Due Process Clause of the Constitution, everybody is entitled to an impartial judiciary in a criminal matter. Recall that a CCP 170.6 peremptory challenge is different than CCP 170.1 “for-cause” challenge.

A “for cause” challenge means a party could try to disqualify or remove a judge under certain circumstances, such as a judge with a conflict of interest in the case.


28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.