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California Code Of Civil Procedure Section 170.3

Legal Research Home > California Lawyer > Code of Civil Procedure > California Code Of Civil Procedure Section 170.3

(a) (1) If a judge determines himself or herself to be
disqualified, the judge shall notify the presiding judge of the court
of his or her recusal and shall not further participate in the
proceeding, except as provided in Section 170.4, unless his or her
disqualification is waived by the parties as provided in subdivision
(b).
   (2) If the judge disqualifying himself or herself is the only
judge or the presiding judge of the court, the notification shall be
sent to the person having authority to assign another judge to
replace the disqualified judge.
   (b) (1) A judge who determines himself or herself to be
disqualified after disclosing the basis for his or her
disqualification on the record may ask the parties and their
attorneys whether they wish to waive the disqualification, except
where the basis for disqualification is as provided in paragraph (2).
A waiver of disqualification shall recite the basis for the
disqualification, and is effective only when signed by all parties
and their attorneys and filed in the record.
   (2) There shall be no waiver of disqualification if the basis
therefor is either of the following:
   (A) The judge has a personal bias or prejudice concerning a party.

   (B) The judge served as an attorney in the matter in controversy,
or the judge has been a material witness concerning that matter.
   (3) The judge shall not seek to induce a waiver and shall avoid
any effort to discover which lawyers or parties favored or opposed a
waiver of disqualification.
   (4) If grounds for disqualification are first learned of or arise
after the judge has made one or more rulings in a proceeding, but
before the judge has completed judicial action in a proceeding, the
judge shall, unless the disqualification be waived, disqualify
himself or herself, but in the absence of good cause the rulings he
or she has made up to that time shall not be set aside by the judge
who replaces the disqualified judge.
   (c) (1) 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.
   (2) Without conceding his or her disqualification, a judge whose
impartiality has been challenged by the filing of a written statement
may request any other judge agreed upon by the parties to sit and
act in his or her place.
   (3) Within 10 days after the filing or service, whichever is
later, the judge may file a consent to disqualification in which case
the judge shall notify the presiding judge or the person authorized
to appoint a replacement of his or her recusal as provided in
subdivision (a), or the judge may file a written verified answer
admitting or denying any or all of the allegations contained in the
party's statement and setting forth any additional facts material or
relevant to the question of disqualification. The clerk shall
forthwith transmit a copy of the judge's answer to each party or his
or her attorney who has appeared in the action.
   (4) A judge who fails to file a consent or answer within the time
allowed shall be deemed to have consented to his or her
disqualification and the clerk shall notify the presiding judge or
person authorized to appoint a replacement of the recusal as provided
in subdivision (a).
   (5) A judge who refuses to recuse himself or herself shall not
pass upon his or her own disqualification or upon the sufficiency in
law, fact, or otherwise, of the statement of disqualification filed
by a party. In that case, the question of disqualification shall be
heard and determined by another judge agreed upon by all the parties
who have appeared or, in the event they are unable to agree within
five days of notification of the judge's answer, by a judge selected
by the chairperson of the Judicial Council, or if the chairperson is
unable to act, the vice chairperson. The clerk shall notify the
executive officer of the Judicial Council of the need for a
selection. The selection shall be made as expeditiously as possible.
No challenge pursuant to this subdivision or Section 170.6 may be
made against the judge selected to decide the question of
disqualification.
   (6) The judge deciding the question of disqualification may decide
the question on the basis of the statement of disqualification and
answer and any written arguments as the judge requests, or the judge
may set the matter for hearing as promptly as practicable. If a
hearing is ordered, the judge shall permit the parties and the judge
alleged to be disqualified to argue the question of disqualification
and shall for good cause shown hear evidence on any disputed issue of
fact. If the judge deciding the question of disqualification
determines that the judge is disqualified, the judge hearing the
question shall notify the presiding judge or the person having
authority to appoint a replacement of the disqualified judge as
provided in subdivision (a).
   (d) The determination of the question of the disqualification of a
judge is not an appealable order and may be reviewed only by a writ
of mandate from the appropriate court of appeal sought only by the
parties to the proceeding.  The petition for the writ shall be filed
and served within 10 days after service of written notice of entry of
the court's order determining the question of disqualification. If
the notice of entry is served by mail, that time shall be extended as
provided in subdivision (a) of Section 1013.

Last modified: January 12, 2009