The challenge to avoid bias from the bench

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Challenging the assigned judge

One of the most significant procedural considerations in a case may be whether to challenge the assigned judge. Every case will be presided over by a judge whose rulings can determine the outcome of the case, even if it never gets to trial.

Cases which involve certain businesses or industries can be impaired not because of the actual law or the facts, but because a judge holds a negative opinion of those operations generally. While some judges may admit they dislike the business model or perceive an industry to have a historically poor reputation, few would concede this negative opinion would actively bias their judicial decisions. Yet circumstances can arise where a reasonable fear of such judicial prejudice against the dealership in litigation can arise. For example, an auto dealership sued for consumer rights violations may believe a judge who was previously a plaintiff’s attorney for a prominent “Lemon Law” litigation firm, may - even if unintentionally - favor plaintiffs. A review of judicial analytics may reveal rulings by that judge favorable to plaintiffs which can support possible bias.

In most states, the courts provide a process to request a newly filed case be reassigned if the judge initially assigned to the case is considered to hold a bias against either the party or the attorney representing the party. In California, such a request is referred to as “Peremptory Challenge” referring to its compulsory nature. Provided the request is timely made, the Peremptory Challenge seeking reassignment at the beginning stage of a case is granted automatically regardless of whether the court can confirm the party’s claim of bias. But it’s a one-time privilege in most cases, and because it results in another arbitrarily assigned judge, the challenge doesn’t guarantee an unbiased judge.

In the unique situation of a successful appeal of a final judgment, the prevailing party gets one more chance to peremptorily challenge the judge, even if they challenged the initial judicial assignment. While a post-appeal peremptory challenge can ensure the party doesn’t face the same judge who made the erroneous ruling appealed from, the random reassignment also doesn’t guarantee an unbiased judge. As a result, before exercising a Peremptory Challenge whether in the early days of the case, after reassignment due to the other party’s successful challenge, or following appeal, evaluation of the benefits and disadvantages of seeking reassignment is complex.

The procedural mechanism

California’s Civil Procedure Code (CCP) Section 170.6 provides a mechanism to challenge the assigned judge on the grounds he or she is prejudiced against a party or attorney or the interests of either of them, preventing a fair and impartial trial or hearing. CCP §170.6(a)(6). The challenge can be asserted by the plaintiff or the defendant. Although it may be considered a rather extreme result, a successful challenge simply requires timely application where certain criteria are met and is effective instantaneously and the challenge irrevocable. Frisk v. Sup.Ct. (Northwest Surgical Develop. Co., Inc.) (2011) 200 Cal.App.4th 402, 410-411. To be timely, a challenge must be made within 15 days of the initial assignment to an all-purpose judge or, if a party has not yet appeared, within 15 days after that party's appearance. CCP §170.6(a)(2). A timely challenge must also be made before a decision on a contested fact issue is made. National Fin’l. Lending, LLC v. Sup.Ct. (Brewer Corp.) (2013) 222 Cal.App.4th 262, 270.

Although the time limit to secure this unique remedy may be brief, the method to request disqualification of the assigned judge for prejudice is uncomplicated. The challenge does not require advance notice to the parties or the court. Rather, it requires only an attorney’s sworn statement, a spoken request to the court, or filing of a form affidavit. The party is not required to establish prejudice as a matter of fact to the satisfaction of the court. CCP §170.6. Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1360-1362. Once the challenge is granted, the entire proceeding and all parties are randomly reassigned by the clerk of the court, to a different judicial officer.

In the example above, a hypothetical dealer defendant would consider making a peremptory challenge as soon as, and often along with, its initial response to the plaintiff’s complaint (a first appearance), or at least within 15 days of the response. If the consumer plaintiff requests a hearing before the defendant has responded to the complaint (such as to obtain a restraining order prohibiting the disputed conduct), the dealer defendant must consider making its peremptory challenge before or at that hearing. If the court makes a ruling at the hearing which decides a disputed issue of fact, the single opportunity to challenge the judge for bias is waived.

Exception to one challenge per side

Most attorneys are familiar with the limitation to peremptory challenges, i.e., that only one challenge under CCP §170.6 may be made per side (“Per side” means parties (co-plaintiffs or co-defendants) whose interests are substantially the same, (no matter how many individually named parties there are on a side) in any one action or proceeding. CCP §170.6(a)(4). Because the plaintiff and defendant can each bring a challenge, sometimes one party’s challenge can trigger the other party’s challenge of the newly assigned judge. Once each party has done so, the “once-only rule” means no further challenges can be made.

However, an important exception to the “once-only rule” applies to the successful appellant after reversal on an appeal of a final judgment.[1] Even if the successful appellant had exercised a §170.6 challenge to the initially assigned judge, that party gets another opportunity to challenge the judicial assignment. After prevailing on an appeal of the trial judge’s final judgment, when the case is remanded – i.e. returned to - the same trial judge whose ruling was reversed, the appellant may make a second §170.6 challenge to that trial judge assigned to conduct a “new trial.” CCP § 170.6(a)(2); McNair v. Sup.Ct. (National Collegiate Athletic Ass'n.) (2016) 6 Cal.App.5th 1227, 1235.

The purpose of permitting a second peremptory challenge in those circumstances is to avoid potential bias by the same judge whose decision was reversed. Consistent with the intent to avoid prejudice, the term “new trial” is interpreted broadly to include any reexamination of any factual or legal issue in controversy in the prior proceedings, such as a summary judgment motion. Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 423–424.

A peremptory challenge following a successful appeal of a final judgment must be filed within 60 days of when the appellant is notified of the assignment of the judicial officer. Hendershot v. Superior Court (1993) 20 Cal.App.4th 860, 863. Notice occurs after the case returns to the lower court, sometimes formally by a hearing notice from the clerk in the assigned court. However, notice may also be given by a party’s informal inquiry – a telephone call to the clerk of the court by counsel. Id.

Continuing with the hypothetical dealer defendant’s challenge above, if the new judge issued final judgment in favor of the plaintiff and the dealer successfully appealed that judgment and a new trial was ordered, in the normal course the new trial would return to the same judge who issued the erroneous judgment. In which case, even though the dealer previously exercised a peremptory challenge, as the successful appellant the dealer could challenge the trial court judge on the grounds of perceived bias due to the reversal of the judgment in favor of the consumer plaintiff. The defendant dealer would consider making a peremptory challenge as soon as the appellate opinion is issued, as once the defendant dealer learns of the assigned judicial officer, the clock starts ticking to make its second peremptory challenge in the case.

Just because you can doesn’t mean you should

Challenging the assigned judge whether at the initial assignment or later if available, involves certain strategic considerations. Counsel who frequently appear before the same judge may be reluctant to alienate an otherwise effective judge. The potential for procedural failure of the challenge could leave the party litigating before a judge who holds a grudge based on the claim of bias. Once the challenge is made, the party must accept whatever judge the clerk may randomly assign – who could be a mediocre judge and hold the same or worse biases. The assignment could also cause delay in the litigation while the clerk identifies and transfers the case to the newly assigned judge who must then become familiar with the case. A chain reaction of challenges may result when the other party challenges the newly assigned judge, also causing delay. And potentially more critical to a post-appeal challenge is the loss of the historic familiarity of the court with the parties, the facts, and the correct law.

The peremptory challenge is a useful tool, albeit with potential serious and strategic consequences beyond avoiding detrimental judicial bias. Parties are always encouraged to discuss the options with their counsel as early in the case as possible.

[1] If a party has not yet used its original §170.6 challenge, a post-appeal peremptory challenge may be made by either the successful appellant or the unsuccessful respondent. Pfeiffer Venice Properties v. Sup.Ct. (Bernard) (2003) 107 Cal.App.4th 761, 764.