Appellate Law
Manatt.com
Mar 06, 2012
Time to Disqualify
Judge on Remand
Not Triggered by
Remittitur

Author: Seth Reagan

California Code of Civil
Procedure section 170.6
allows prevailing
appellants to disqualify
the original trial court
judge from presiding over
a case after remand from
the Court of Appeal by
moving to disqualify that
judge within “60 days.”  
But when does the 60-
day clock start ticking?
The Second District Court
of Appeal recently
answered this question in
Ghaffarpour v. Superior
Court of Los Angeles
County (No. B234097),
concluding that
the 60
days begins to run
from when the party
first learns of the
judicial assignment —
not from when the
Court of Appeal issues
the remittitur.

Ghaffarpour had sued a
hotel and its hired
security agency for
assault and other
intentional torts in Los
Angeles County Superior
Court.
After the trial
court dismissed the
case on statute of
limitations grounds,
Ghaffarpour prevailed
on appeal, winning a
reversal of the
judgment and a
remand to proceed
with the case
. The
Court of Appeal issued its
remittitur on August 26,
2010.

Nine months later, the
trial court had still not
scheduled further
proceedings.
When
Ghaffarpour’s counsel
contacted the court clerk
on June 3, 2011 to ask
about the status of the
case, the
clerk
responded that the
matter would soon be
reassigned to the
original judge. This
was Ghaffarpour’s first
notification that the
same judge would be
presiding.
Seven days
later, on June 10, 2011,
Ghaffarpour moved to
disqualify the judge for
prejudice unde
r Code of
Civil Procedure
section 170.6, which
allows an appellant to
file such a peremptory
challenge within 60
days from the date of
notification that the
prior judge has been
reassigned.
The local
rules for the Los Angeles
County Superior Court,
however, stated that the
60-day period began to
run “from the date of
issuance of the remittitur”
by the court of appeal.
Following that local rule,
the trial court denied
Ghaffarpour’s peremptory
challenge as untimely.
Ghaffarpour once again
turned to the Court of
Appeal for relief.

The Court of Appeal
recognized that the state
and local rules directly
conflicted and could not
be harmonized.
Even
though remanded
matters are typically
reassigned to the
same judge, there is
no guarantee that will
happen. Thus, a
remittitur does not
serve as “constructive
notice” that the
previous judge will be
reassigned.
Holding
otherwise “would permit a
local rule to limit the time
period in which a …
peremptory challenge
can be asserted,” thereby
thwarting the intention of
the State Legislature and
hindering the promotion
of justice. Thus, the local
rule was void.

Ghaffarpour makes clear
that successful appellants
in Los Angeles and
throughout California
have 60 days to
disqualify a judge on
remand, which begins to
run only on notification
that the matter has in fact
been reassigned to the
previous judge — not
simply upon issuance of
the remittitur.
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Disqualifying Judges
FOCUS COLUMN
By Frederick R. Bennett
CLE

    
California litigants are allowed to disqualify judges from presiding
over their cases both as a matter of right or peremptorily and on a
showing of cause
, even though exercising such rights may be disruptive or
abused. To minimize such abuse and disruption, the California Supreme Court
has directed trial-court judges to "be vigilant to enforce the statutory restrictions
on the number and timing of motions permitted." Solberg v. Superior Court
(1977) 19 Cal.3d 182, 198.

    Accordingly, litigants' knowledge of the fundamental rules concerning
disqualification is essential to successful practice. Bench officers also must be
thoroughly familiar with these rules because the "duty of a judge to sit where not
disqualified is equally as strong as the duty not to sit when disqualified." UFW of
Am. v. Superior Court (1985) 170 Cal.App.3d 97, 100.

    The objective of this article and self-study test is to review the basic rules concerning
disqualification of judges in California. By reading the article and taking the test, lawyers and
bench officers will learn important time limits and rulings that will bar the filing of peremptory
challenges to judges (Code of Civ. Proc., section 170.6), as well as critical procedural issues
regarding challenges to judges for cause (Code of Civ. Proc., section 170.1). Although bench
officers may apply to their presiding judges for self-study credit, this self-study test has not
been approved by CJER for judicial ethics credit under the state-provided CJP insurance
program.

    Peremptory Challenges

    Timeliness is the touchstone for motions to disqualify
judges on a peremptory basis under Code of Civil
Procedure section 170.6.
Assuming the motion is timely,
the judge must disqualify himself or herself
. If the motion is
untimely, the motion should be denied. The rules in this area of law with respect
to both civil and criminal cases are substantially the same. See McClenny v.
Superior Court (1964) 60 Cal.2d 677, 685.

 
   All that is required for a peremptory challenge is a declaration under
oath that the judge is "prejudiced against the party (or his or her
attorney) or the interest of the party (or his or her attorney) so that
affiant cannot or believes that he or she cannot have a fair and
impartial trial or hearing before the judge.
" Code of Civ. Proc., section
170.6(a)(5). So long as a timely declaration is made substantially stating the
quoted language above, the judge has no recourse but to disqualify himself or
herself.
    The only exception to this rule is if it can be shown that the peremptory
challenge was filed because the judge is a member of a cognizable group. This
is the same as the principle that forbids a party from exercising a peremptory
challenge against a potential juror during jury selection because of membership
in a cognizable class. Akin to jury Batson/Wheeler challenges, the opposing
party has the burden of establishing a prima facie case that the challenge was
exercised because of group bias; if a prima facie case is proved, the burden
shifts to the party that made the challenge to prove that noncognizable group
reasons supported the challenge. See People v. Superior Court (Williams)
(1992) 8 Cal.App.4th 688, 708-709.

    Timeliness Issues
    The general rule concerning timeliness is that a section 170.6 challenge will
be timely so long as it is filed at any time before the start of the hearing toward
which it is directed and none of the exceptions to this rule apply. Augustyn v.
Superior Court (1986) 186 Cal.App.3d 1221, 1226. The four primary exceptions
are listed in section 170.6(2):
(1) The Master Calendar exception (applies if case is sent to start trial from
"master calendar court");
(2) The 10-day/5-day exception (if the judge is known at least 10 days before
start of hearing, the section 170.6 challenge must be filed at least 5 days before
the hearing starts);
(3) The All Purpose Assignment exception (if a case is assigned to a judge "for
all purposes," then the section 170.6 challenge must be filed within 10 days of
notice of such an assignment; 15 days if the assignment is by court rule. Gov.
Code section 68616(i)); and
(4) The Ruling on the Merits exception (a section 170.6 challenge cannot be
filed after a judge has made a "ruling on the merits" of the case). (A concise
explanation of these exceptions can be found in People v. Superior Court (Lavi)
(1993) 4 Cal.4th 1164, 1177-1183.)

    For purposes of the exceptions, the substitution of counsel does not begin
new time periods. See People v. Superior Court (Smith) (1987) 190 Cal.App.3d
427. Further, a party may not continue a case deliberately to gain time to file an
otherwise untimely challenge. People v. Richard (1978) 85 Cal.App.3d 292.
Only one peremptory challenge is permitted per side unless substantially
adverse interests between multiple parties are established. Avital v. Superior
Court (1981) 114 Cal.App.3d 297, 301.

    Regarding the exception for when a judge has made a "ruling on the merits,"
appellate cases have set forth several rulings in criminal cases that are
on the merits that will bar a section 170.6 disqualification, including a motion to
suppress evidence under the Fourth Amendment (In re Abdul Y. (1982) 130
Cal.App.3d 847), the acceptance of a plea bargain (Lyons v. Superior Court
(1977) 73 Cal.App.3d 625), and a trial, for example when a mistrial results
(People v. Richard (1978) 85 Cal.App.3d 292). Note, however, that if a case is
reversed by an appellate court, a section 170.6 may be timely regarding the
retrial if made within 60 days after assignment to the same judge. Code of Civil
Procedure section 170.6(2). This rule does not apply to pretrial decisions that
do not result in a judgment, such as motions in limine or pretrial conflict-of-laws
motions. State Farm v. Superior Court (2004) 20 Cal.Rptr.3d 850.

    Rulings in
criminal cases that have been held not to be on the merits
include a motion to set aside an information under Penal Code section 995
(Kohn v. Superior Court (1966) 239 Cal.App.2d 428), the discussion of a
possible plea bargain where the bargain is not accepted by the parties (People
v. Montalvo (1981) 117 Cal.App.3d 790), and the ruling on a demurrer (Fraijo v.
Superior Court (1973) 34 Cal.App.3d 222).

    In civil cases,
rulings that are on the merits that will bar
a section 170.6 disqualification
include

ruling on an
injunction (Astourian v. Superior Court (1990) 226 Cal.App.3d
720),

summary adjudication involving complex questions of law (Cal. Fed. Sav.
& Loan Assn. v. Superior Court (1987) 189 Cal.App.3d 267), and

appointment of a conservator (Conservatorship of Durham (1988) 205
Cal.App.3d 548).

    Rulings in civil cases held not to bar a section 170.6 include ruling on a
temporary restraining order (Landmark Holding Group Inc. v. Superior Court
(1987) 193 Cal.App.3d 525), ruling on a summary judgment motion (Bambula v.
Superior Court (1985) 174 Cal.App.3d 653), and ruling on a motion to transfer
and for continuance (Los Angeles County Dept. of Pub. Soc. Servs. v. Superior
Court (1977) 69 Cal.App.3d 407).

    
Challenges for Cause

    A section 170.1 challenge can be filed at any
stage of the proceedings.

However, the challenge can be waived if it is not
asserted "at the earliest practicable opportunity after
discovery of the disqualifying facts." Code of Civ.
Proc., section 170.6(2). Although no specific time
period is stated, the time period is short. A party
cannot wait to see what happens
or until the matter comes up
on calendar. In re Steven O. (1991) 229 Cal.App.3d 46.

  
  No formal "motion" is needed to disqualify a judge
either peremptorily or for cause. However, it must be
in a form sufficient to give the judge clear notice.

McCartney v. Superior Court (1990) 223 Cal.App.3d 1334, 1340. Although a
one-page affidavit is sufficient for a peremptory challenge, a challenge
for cause must be formal and in writing
. A mere request that a judge
disqualify himself or herself is insufficient. People v. Kirk (1950) 98 Cal.App.2d
687, 693.

    The motion must be based on facts, not opinion or conclusion. Code
of Civ. Proc., section 170.3(c)(1); Urias v. Harris Farms, Inc. (1991) 234
Cal.App.3d 415, 426. It cannot be based on information and belief, hearsay or
other inadmissible evidence. Anastos v Lee (2004) 118 Cal.App.4th 1314, 1319.
A "trial court's numerous rulings against a party - even when erroneous
- do not establish a charge of judicial bias, especially when they are
subject to review."
People v. Guerra (2006) 37 Cal.4th 1067, 1112.

    There are
two general grounds for a section 170.1
challenge for cause.

One group consists of judges' ties to the parties or actions, such as when the
judge has personal knowledge of disputed evidentiary facts, or when the judge
or his kin are related to the parties, or when the judge has a financial interest in
the proceedings. Code of Civil Proc. section 170.1(a)(1)-(5), (7), (8).

The other group is when the judge believes he or she cannot be fair,

when the judge is actually biased against a party, or

when a person might reasonably entertain a doubt
regarding the judge's ability to be fair. Code of Civil
Procedure section 170.1(a)(6).

    Most of the grounds for disqualification for cause are very straightforward: A
judge either is or is not related to a party. The more subjective ones, such as
whether the judge is biased, are much more difficult to prove. The party seeking
disqualification has the burden of proof. Betz v. Pankow (1993) 16 Cal.App.4th
919, 926.

    Procedures After Filing

    After the challenge for cause is filed, without conceding disqualification, the
judge can consent that the matter be heard by another judge. Code of Civil
Procedure section 170.3(c)(2). If the judge does not strike the disqualification
statement or file a verified answer within 10 days of service, the judge is
deemed to be disqualified. Code of Civ. Proc. section 170.3(c)(4); Urias v. Harris
Farms, Inc. (1991) 234 Cal.App.3d 415, 419. There must be personal service
on the judge or on the judge's clerk while the judge is in the courthouse to start
the 10-day period. Code of Civ. Prod., section 170.3(c)(1).

    A judge may strike a disqualification statement that is untimely or
demonstrates on its face no legal grounds for disqualification. Code of Civ.
Proc. section 170.4(b). The latter typically include statements based on rulings,
opinion, speculation or inadmissible evidence. A strike order may and often
does include an alternative answer to be on file in the event that a reviewing
court finds that the statement was improperly stricken. See PBA, LLC v. KPOD,
LTD (2003) 112 Cal.App.4th 965, 972.

    If a verified answer is filed, the matter is referred to another judge to
determine the question of disqualification. Although the statute permits referral
to a judge stipulated to by the parties, there is normally no such stipulation, and
the referral is to a judge from another county by the Chief Justice. Code of Civil
Procedure section 170.3(c)(5).

    Appellate Review
    The exclusive means of seeking appellate review of the denial of a
peremptory challenge or of a statutory ground for disqualification for cause is an
appellate writ taken within 10 days of the disqualification determination, whether
by denial, striking or decision. The issue is not normally preserved for an
appeal. Code of Civ. Proc. section 170.3(d); People v. Hull (1991) 1 Cal.4th 266.

    Since a defendant has the constitutional right to be tried before an unbiased
judge, nonstatutory grounds for disqualification might be preserved on appeal.
People v. Brown (1993) 6 Cal.4th 322, 334-335. However, a defendant may,
and should, try to resolve such issues by statutory means, because the
negligent failure to do so may constitute a forfeiture of the constitutional claim.
Id.
   
    Frederick R. Bennett is court counsel for the Los Angeles County Superior
Court.
September 15, 2008
Peremptory Challenge to Judge After Remand Has Its Limits
The California Blog of Appeal
Greg May

Virtually every civil litigator knows about the procedure afforded by Code of Civil
Procedure section 170.6 for disqualification of the judge assigned to the case.  
Commonly called “papering the judge,” the requirements of the section are so
meager that such challenges are also referred to as “peremptory” challenges,
though not technically so (to my mind), and my guess is that any civil litigator who
has practiced for more than a few years has invoked section 170.6 at least once.

Maybe you didn’t know that this
disqualification procedure is
available even after reversal on appeal.
 Subdivision (a)(2) of
section 170.6 provides

  A motion under this paragraph may be made following reversal on appeal of a
trial court’s decision, or following reversal on appeal of a trial court’s final
judgment, if the trial judge in the prior proceeding is assigned to conduct a new
trial on the matter.  Notwithstanding paragraph (3),
the party who filed the
appeal that resulted in the reversal of a final judgment of a trial court
may make a motion under this section
regardless of whether that party or
side has previously done so.  The motion shall be made within 60 days after the
party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the
first instance, the ability to “paper the judge” after a reversal on appeal is a
critically important consideration.  It may be the one thing that convinces an
aggrieved party to appeal, when that party might otherwise have been resigned
to accept an adverse judgment because the prospect of having to retry the case
before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as
the real parties in interest learned in C.C. v. Superior Court, case no. G040580
(4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after
succeeding on appeal by obtaining a reversal of a reunification order, real
parties “papered the judge.”  Petitioner filed a petition for writ of mandate, and
the court of appeal grants the petition.

  The language allowing a peremptory challenge on remand was added in 1985 to avoid
perceived bias against an appellant of a trial judge whose judgment or order had been
reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-
576.)  
But the statute applies only where the remand
requires “a ‘reexamination’ of a factual or legal issue
that was in controversy in the prior proceeding.”
 
(Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)
 It does not apply to the
performance of a ministerial act.
 (Stegs Investments v. Superior Court, supra, 233
Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to
perform only ministerial acts.  Those were: (1) to enter a new order denying reunification
services and (2) setting a permanent plan selection hearing.  The court rejected the real
parties’ argument that the subsequent hearing would require a reexamination of the same
issues considered in the reunification hearing.

  The real parties in interest claim, “the juvenile court in the present case will undoubtedly
revisit the core determinations upon which this Court based its reversal,” meaning it will have
to consider the strength of the bond between the children and the mother at the permanent
plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the
permanent plan selection hearing is not for purposes of reunification; rather, it is to determine
whether to avoid the termination of parental rights and select a different permanent plan.  
(Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a
different legal context from the disposition hearing and will involve facts as they then exist.  On
remand, however, the juvenile court was merely directed to enter an order denying
reunification services and to set a permanent plan selection hearing.  The implementation of
these directions will not constitute a reexamination of an issue of fact or a retrial of the
dispositional issues.

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a
retrial of the dispositional issues, we grant the petition and direct that the case be returned to
[the challenged judge].”

The same considerations should not apply in the typical civil trial,
where past facts are what are at issue.  
But any time that future
consideration of an issue will depend on facts as they then exist, “papering the
judge” is apparently not an option after remand.
Appeals, Writs and Post-Trial Motions - Horvitz & Levy LLP
horvitzlevy.com/images/ps_attachment/attachment343.pdf
The California Supreme Court and Courts of. Appeal ... Supreme Court—
~lnterpreting the Notice of Appeal .... I
Post-appellate Matters—
Peremptory Challenges.