Appeal of Final Judgment: Successful Party Entitled to 2nd Peremptory Challenge

  Code of Civil Procedure 170.6 provides the statutory basis to disqualify a judge from hearing a proceeding. A peremptory challenge is usually made by filing an affidavit or declaration under penalty of perjury that the judge is prejudiced against a party or attorney for a party using a locally approved form.

  If the affidavit is duly presented (timely), no further act or proof is required and a new judge must be assigned, except that no party or attorney shall be permitted to make more than one such motion in any action or proceeding, and if there are multiple plaintiffs or defendants, only one motion for each side may be made.

  What about the circumstance where an appeal is taken from a judgment or interim order? In that circumstance, section 170.6 provides that a successful party on appeal may exercise a second peremptory challenge provided the appeal is from a final judgment, but not if the appeal is from an interim order.

  The case is McNair v. Superior Court (National Collegiate Athletic Assn.): “…[W]e hold that Code of Civil Procedure section 170.6, subdivision (a)(2)  allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision.”

Papering the Judge By Fax

  I have previously posted: “Papering the Judge: The Rules.” Those rules state that a motion to disqualify a judge pursuant to Code of Civil Procedure section 170.6 (also known as a peremptory challenge) shall be made to the assigned judge or to the presiding judge: failure to follow this rule can be grounds to deny the motion.

  How do you fax file a motion to disqualify a judge? The Facsimile Transmission Cover Sheet (MC-005) must include processing instructions as a separate attachment, indicated by a check mark at Paragraph 2. The processing instructions must clearly indicate the specific judge to which the Affidavit of Prejudice is directed. For example: Please immediately direct this Affidavit of Prejudice to assigned Judge [Name ] in Department XX.

  In Fry v. Superior Court the fax-filing cover sheet failed to direct the affidavit to any particularly judge and therefore the motion to disqualify was properly denied because it was not directed to either the assigned or presiding judge.

Papering the Judge: The Rules

iStock_000005901807XSmall_edited-1  Peremptory challenges of a trial judge are governed by Code of Civil Procedure section 170.6. The section permits a party to an action to summarily disqualify a judge based on a sworn statement of the party’s belief that the judge is prejudiced against that party or the party’s attorney.

  Provided the statement is timely and in proper form, the judge has no discretion and must accept the challenge. The right to disqualify a judge under section 170.6 is automatic in the sense that a good faith belief in prejudice is sufficient – no showing of actual prejudice is required. In common parlance the use of an affidavit pursuant to section 170.6 is known as “papering the judge.” Continue reading