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California Code of Civil Procedure Section 170.6

Legal Research Home > California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 170.6

170.6.  (a) (1) A judge, court commissioner, or referee of a
superior court of the State of California shall not try a civil or
criminal action or special proceeding of any kind or character nor
hear any matter therein 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.
   (2) A party to, or an attorney appearing in, an action or
proceeding may establish this prejudice by an oral or written motion
without prior notice supported by affidavit or declaration under
penalty of perjury, or an oral statement under oath, that the judge,
court commissioner, or referee before whom the action or proceeding
is pending, or to whom it is assigned, is prejudiced against a party
or attorney, or the interest of the party or attorney, so that the
party or attorney cannot, or believes that he or she cannot, have a
fair and impartial trial or hearing before the judge, court
commissioner, or referee. If the judge, other than a judge assigned
to the case for all purposes, court commissioner, or referee assigned
to, or who is scheduled to try, the cause or hear the matter is
known at least 10 days before the date set for trial or hearing, the
motion shall be made at least 5 days before that date. If directed to
the trial of a cause with a master calendar, the motion shall be
made to the judge supervising the master calendar not later than the
time the cause is assigned for trial. If directed to the trial of a
criminal cause that has been assigned to a judge for all purposes,
the motion shall be made to the assigned judge or to the presiding
judge by a party within 10 days after notice of the all purpose
assignment, or if the party has not yet appeared in the action, then
within 10 days after the appearance. If directed to the trial of a
civil cause that has been assigned to a judge for all purposes, the
motion shall be made to the assigned judge or to the presiding judge
by a party within 15 days after notice of the all purpose assignment,
or if the party has not yet appeared in the action, then within 15
days after the appearance. If the court in which the action is
pending is authorized to have no more than one judge, and the motion
claims that the duly elected or appointed judge of that court is
prejudiced, the motion shall be made before the expiration of 30 days
from the date of the first appearance in the action of the party who
is making the motion or whose attorney is making the motion. In no
event shall a judge, court commissioner, or referee entertain the
motion if it is made after the drawing of the name of the first
juror, or if there is no jury, after the making of an opening
statement by counsel for plaintiff, or if there is no opening
statement by counsel for plaintiff, then after swearing in the first
witness or the giving of any evidence or after trial of the cause has
otherwise commenced. If the motion is directed to a hearing, other
than the trial of a cause, the motion shall be made not later than
the commencement of the hearing. In the case of trials or hearings
not specifically provided for in this paragraph, the procedure
specified herein shall be followed as nearly as possible. The fact
that a judge, court commissioner, or referee has presided at, or
acted in connection with, a pretrial conference or other hearing,
proceeding, or motion prior to trial, and not involving a
determination of contested fact issues relating to the merits, shall
not preclude the later making of the motion provided for in this
paragraph at the time and in the manner herein provided.
   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 (4), 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.
   (3) A party to a civil action making that motion under this
section shall serve notice on all parties no later than five days
after making the motion.
   (4) If the motion is duly presented, and the affidavit or
declaration under penalty of perjury is duly filed or an oral
statement under oath is duly made, thereupon and without any further
act or proof, the judge supervising the master calendar, if any,
shall assign some other judge, court commissioner, or referee to try
the cause or hear the matter. In other cases, the trial of the cause
or the hearing of the matter shall be assigned or transferred to
another judge, court commissioner, or referee of the court in which
the trial or matter is pending or, if there is no other judge, court
commissioner, or referee of the court in which the trial or matter is
pending, the Chair of the Judicial Council shall assign some other
judge, court commissioner, or referee to try the cause or hear the
matter as promptly as possible. Except as provided in this section,
no party or attorney shall be permitted to make more than one such
motion in any one action or special proceeding pursuant to this
section. In actions or special proceedings where there may be more
than one plaintiff or similar party or more than one defendant or
similar party appearing in the action or special proceeding, only one
motion for each side may be made in any one action or special
proceeding.
   (5) Unless required for the convenience of the court or unless
good cause is shown, a continuance of the trial or hearing shall not
be granted by reason of the making of a motion under this section. If
a continuance is granted, the cause or matter shall be continued
from day to day or for other limited periods upon the trial or other
calendar and shall be reassigned or transferred for trial or hearing
as promptly as possible.
   (6) Any affidavit filed pursuant to this section shall be in
substantially the following form:

            (Here set forth court and cause)
  State of                 ss. PEREMPTORY
  California,                  CHALLENGE
  County of ___________


  ____, being duly sworn, deposes and says: That he
  or she
  is
  a party (or attorney for a party) to the within
  action (or special proceeding). That ____ the
  judge, court commissioner, or referee before whom
  the trial of the (or a hearing in the) action (or
  special proceeding) is pending (or to whom it is
  assigned) 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,
  court commissioner, or referee.
  Subscribed and sworn to before me this
  ______ day of ______, 20__.
  (Clerk or notary public or other
  officer administering oath)

   (7) Any oral statement under oath or declaration under penalty of
perjury made pursuant to this section shall include substantially the
same contents as the affidavit above.
   (b) Nothing in this section shall affect or limit Section 170 or
Title 4 (commencing with Section 392) of Part 2, and this section
shall be construed as cumulative thereto.
   (c) If any provision of this section or the application to any
person or circumstance is held invalid, that invalidity shall not
affect other provisions or applications of the section that can be
given effect without the invalid provision or application and, to
this end, the provisions of this section are declared to be
severable.

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Last modified: March 17, 2014