Orange County Criminal Defense Lawyer Blog
When you don’t like the judge you are in front of you are in trouble. There is a provision for changing your judicial officer but it must be used with caution.
When a defendant doesn’t want a particular judge, commissioner, or referee to hear any matter that involves a contested issue of fact or law, the defendant can challenge him or her under Code of Civil Procedure (CCP) 170.6. This is called a peremptory challenge. A defendant or his attorney states that the judge, commissioner, or referee is prejudiced against him. However, this statement is just that, a statement. A defendant and/or his counsel do not have to prove that the judicial officer is, in fact, prejudiced against him. If a defendant doesn’t like the way the judicial officer looks, an affidavit of prejudice can be filed and the case will be re-assigned to another judicial officer.
There are limits to challenging a judge. For example, if a judicial officer has heard and determined a contested fact relating to the merits of the case it is too late and you are stuck with that judicial officer. This only makes sense since all losing parties would like to challenge the judge who rules against them. With all rulings the court is going to make, at least one party to the law suit is going to be unhappy. Therefore once you have lost a ruling on an issue that goes to the merits of the case you can’t file a 170.6 affidavit. If it were otherwise there would be chaos in the court system with litigants filing one challenge after another against the sitting judicial officer.
Also, if a case is assigned out for trial from a master calendar court the challenge has to be filed when the case is assigned for trial. If the case doesn’t get assigned out for trial from a master calendar court but is assigned directly to the courtroom for all purposes, including trial, a challenge must be made within 10 calendar days after being sent to that department or within 10 calendar days before an appearance is made by the party who wants to file the challenge (CCP 170.6(a)(2) .
From a personal viewpoint, I don’t want to file a 170.6 challenge unless I am sincerely convinced that I cannot get a fair hearing before that judicial officer. One should not say a judicial officer is prejudiced against them if they don’t have a solid basis to make that allegation. I rarely file such an affidavit of prejudice. Don’t forget, the one who you challenged may be better for you than the one you get next.