CODE OF CIVIL
170. A judge has a duty to decide any proceeding in which he or she
is not disqualified.
170.1. (a) A judge shall be disqualified if any one or more of the
following is true:
(1) (A) The judge has personal knowledge of disputed evidentiary
facts concerning the proceeding.
(B) A judge shall be deemed to have personal knowledge within the
meaning of this paragraph if the judge, or the spouse of the judge,
or a person within the third degree of relationship to either of
them, or the spouse of such a person is to the judge's knowledge
likely to be a material witness in the proceeding.
(2) (A) The judge served as a lawyer in the proceeding, or in any
other proceeding involving the same issues he or she served as a
lawyer for any party in the present proceeding or gave advice to any
party in the present proceeding upon any matter involved in the
action or proceeding.
(B) A judge shall be deemed to have served as a lawyer in the
proceeding if within the past two years:
(i) A party to the proceeding or an officer, director, or trustee
of a party was a client of the judge when the judge was in the
private practice of law or a client of a lawyer with whom the judge
was associated in the private practice of law.
(ii) A lawyer in the proceeding was associated in the private
practice of law with the judge.
(C) A judge who served as a lawyer for or officer of a public
agency that is a party to the proceeding shall be deemed to have
served as a lawyer in the proceeding if he or she personally advised
or in any way represented the public agency concerning the factual or
legal issues in the proceeding.
(3) (A) The judge has a financial interest in the subject matter
in a proceeding or in a party to the proceeding.
(B) A judge shall be deemed to have a financial interest within
the meaning of this paragraph if:
(i) A spouse or minor child living in the household has a
(ii) The judge or the spouse of the judge is a fiduciary who has a
(C) A judge has a duty to make reasonable efforts to inform
himself or herself about his or her personal and fiduciary interests
and those of his or her spouse and the personal financial interests
of children living in the household.
(4) The judge, or the spouse of the judge, or a person within the
third degree of relationship to either of them, or the spouse of such
a person is a party to the proceeding or an officer, director, or
trustee of a party.
(5) A lawyer or a spouse of a lawyer in the proceeding is the
spouse, former spouse, child, sibling, or parent of the judge or the
judge's spouse or if such a person is associated in the private
practice of law with a lawyer in the proceeding.
(6) (A) For any reason:
(i) The judge believes his or her recusal would further the
interests of justice.
(ii) The judge believes there is a substantial doubt as to his or
her capacity to be impartial.
(iii) A person aware of the facts might reasonably entertain a
doubt that the judge would be able to be impartial.
(B) Bias or prejudice toward a lawyer in the proceeding may be
grounds for disqualification.
(7) By reason of permanent or temporary physical impairment, the
judge is unable to properly perceive the evidence or is unable to
properly conduct the proceeding.
(8) (A) The judge has a current arrangement concerning prospective
employment or other compensated service as a dispute resolution
neutral or is participating in, or, within the last two years has
participated in, discussions regarding prospective employment or
service as a dispute resolution neutral, or has been engaged in such
employment or service, and any of the following applies:
(i) The arrangement is, or the prior employment or discussion was,
with a party to the proceeding.
(ii) The matter before the judge includes issues relating to the
enforcement of either an agreement to submit a dispute to an
alternative dispute resolution process or an award or other final
decision by a dispute resolution neutral.
(iii) The judge directs the parties to participate in an
alternative dispute resolution process in which the dispute
resolution neutral will be an individual or entity with whom the
judge has the arrangement, has previously been employed or served, or
is discussing or has discussed the employment or service.
(iv) The judge will select a dispute resolution neutral or entity
to conduct an alternative dispute resolution process in the matter
before the judge, and among those available for selection is an
individual or entity with whom the judge has the arrangement, with
whom the judge has previously been employed or served, or with whom
the judge is discussing or has discussed the employment or service.
(B) For the purposes of this paragraph, all of the following
(i) "Participating in discussions" or "has participated in
discussion" means that the judge solicited or otherwise indicated an
interest in accepting or negotiating possible employment or service
as an alternative dispute resolution neutral or responded to an
unsolicited statement regarding, or an offer of, such employment or
service by expressing an interest in that employment or service,
making any inquiry regarding the employment or service, or
encouraging the person making the statement or offer to provide
additional information about that possible employment or service. If
a judge's response to an unsolicited statement regarding, a question
about, or offer of, prospective employment or other compensated
service as a dispute resolution neutral is limited to responding
negatively, declining the offer, or declining to discuss such
employment or service, that response does not constitute
participating in discussions.
(ii) "Party" includes the parent, subsidiary, or other legal
affiliate of any entity that is a party and is involved in the
transaction, contract, or facts that gave rise to the issues subject
to the proceeding.
(iii) "Dispute resolution neutral" means an arbitrator, mediator,
temporary judge appointed under Section 21 of Article VI of the
California Constitution, referee appointed under Section 638 or 639,
special master, neutral evaluator, settlement officer, or settlement
(b) A judge before whom a proceeding was tried or heard shall be
disqualified from participating in any appellate review of that
(c) At the request of a party or on its own motion an appellate
court shall consider whether in the interests of justice it should
direct that further proceedings be heard before a trial judge other
than the judge whose judgment or order was reviewed by the appellate
170.2. It shall not be grounds for disqualification that the judge:
(a) Is or is not a member of a racial, ethnic, religious, sexual
or similar group and the proceeding involves the rights of such a
(b) Has in any capacity expressed a view on a legal or factual
issue presented in the proceeding, except as provided in paragraph
(2) of subdivision (a) of, or subdivision (b) or (c) of, Section
(c) Has as a lawyer or public official participated in the
drafting of laws or in the effort to pass or defeat laws, the
meaning, effect or application of which is in issue in the proceeding
unless the judge believes that his or her prior involvement was so
well known as to raise a reasonable doubt in the public mind as to
his or her capacity to be impartial.
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
(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 where 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 it.
(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) In the event that 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.
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.
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.
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) No judge who refuses to recuse himself or herself shall 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 every such 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 subdivision (c) of Section 170.3 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 such 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) of Section 170.3.
(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 within 10 days
of notice to the parties of the decision and only by the parties to
170.4. (a) A disqualified judge, notwithstanding his or her
disqualification may do any of the following:
(1) Take any action or issue any order necessary to maintain the
jurisdiction of the court pending the assignment of a judge not
(2) Request any other judge agreed upon by the parties to sit and
act in his or her place.
(3) Hear and determine purely default matters.
(4) Issue an order for possession prior to judgment in eminent
(5) Set proceedings for trial or hearing.
(6) Conduct settlement conferences.
(b) Notwithstanding paragraph (5) of subdivision (c) of Section
170.3, if a statement of disqualification is untimely filed or if on
its face it discloses no legal grounds for disqualification, the
trial judge against whom it was filed may order it stricken.
(c) (1) If a statement of disqualification is filed after a trial
or hearing has commenced by the start of voir dire, by the swearing
of the first witness or by the submission of a motion for decision,
the judge whose impartiality has been questioned may order the trial
or hearing to continue, notwithstanding the filing of the statement
of disqualification. The issue of disqualification shall be referred
to another judge for decision as provided in subdivision (a) of
Section 170.3, and if it is determined that the judge is
disqualified, all orders and rulings of the judge found to be
disqualified made after the filing of the statement shall be vacated.
(2) For the purposes of this subdivision, if (A) a proceeding is
filed in a single judge court or has been assigned to a single judge
for comprehensive disposition, and (B) the proceeding has been set
for trial or hearing 30 or more days in advance before a judge whose
name was known at the time, the trial or hearing shall be deemed to
have commenced 10 days prior to the date scheduled for trial or
hearing as to any grounds for disqualification known before that
(3) A party may file no more than one statement of
disqualification against a judge unless facts suggesting new grounds
for disqualification are first learned of or arise after the first
statement of disqualification was filed. Repetitive statements of
disqualification not alleging facts suggesting new grounds for
disqualification shall be stricken by the judge against whom they are
(d) Except as provided in this section, a disqualified judge shall
have no power to act in any proceeding after his or her
disqualification or after the filing of a statement of
disqualification until the question of his or her disqualification
has been determined.
170.5. For the purposes of Sections 170 to 170.5, inclusive, the
following definitions apply:
(a) "Judge" means judges of the superior courts, and court
commissioners and referees.
(b) "Financial interest" means ownership of more than a 1 percent
legal or equitable interest in a party, or a legal or equitable
interest in a party of a fair market value in excess of one thousand
five hundred dollars ($1,500), or a relationship as director, advisor
or other active participant in the affairs of a party, except as
(1) Ownership in a mutual or common investment fund that holds
securities is not a "financial interest" in those securities unless
the judge participates in the management of the fund.
(2) An office in an educational, religious, charitable, fraternal,
or civic organization is not a "financial interest" in securities
held by the organization.
(3) The proprietary interest of a policyholder in a mutual
insurance company, or a depositor in a mutual savings association, or
a similar proprietary interest, is a "financial interest" in the
organization only if the outcome of the proceeding could
substantially affect the value of the interest.
(c) "Officer of a public agency" does not include a Member of the
Legislature or a state or local agency official acting in a
(d) The third degree of relationship shall be calculated according
to the civil law system.
(e) "Private practice of law" includes a fee for service,
retainer, or salaried representation of private clients or public
agencies, but excludes lawyers as full-time employees of public
agencies or lawyers working exclusively for legal aid offices, public
defender offices, or similar nonprofit entities whose clientele is
by law restricted to the indigent.
(f) "Proceeding" means the action, case, cause, motion, or special
proceeding to be tried or heard by the judge.
(g) "Fiduciary" includes any executor, trustee, guardian, or
170.6. (a) (1) No judge, court commissioner, or referee of any
superior court of the State of California shall try any 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 shall be established as hereinafter provided that the
judge or court commissioner is prejudiced against any party or
attorney or the interest of any party or attorney appearing in the
action or proceeding.
(2) Any party to or any attorney appearing in any action or
proceeding may establish this prejudice by an oral or written motion
without 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 any 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. Where 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 where there is 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 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 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 any
judge, court commissioner, or referee entertain the motion if it be
made after the drawing of the name of the first juror, or if there be
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 herein
specifically provided for, the procedure herein specified shall be
followed as nearly as may be. 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 herein at the time and in the manner hereinbefore
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 (3), 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
(3) 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; and 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
(4) 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.
(5) Any affidavit filed pursuant to this section shall be in
substantially the following form:
(Here set forth court and cause)
State of California, ) PEREMPTORY CHALLENGE
County of __________ ) ss.
_______, 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)
aforesaid 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)
(6) 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.
170.7. Section 170.6 does not apply to a judge designated or
assigned to serve on the appellate division of a superior court in
the judge's capacity as a judge of that division.
170.8. When there is no judge of a court qualified to hear an
action or proceeding, the clerk shall forthwith notify the Chairman
of the Judicial Council of that fact. The judge assigned by the
Chairman of the Judicial Council shall hear the action or proceeding
at the time fixed therefor or, if no time has been fixed or good
cause appears for changing the time theretofore fixed, the judge
shall fix a time for hearing in accordance with law and rules and
hear the action or proceeding at the time so fixed.
170.9. (a) No judge shall accept gifts from any single source in
any calendar year with a total value of more than two hundred fifty
dollars ($250). This section shall not be construed to authorize the
receipt of gifts that would otherwise be prohibited by the
California Code of Judicial Ethics adopted by the California Supreme
Court or any other provision of law.
(b) This section shall not prohibit or limit the following:
(1) Payments, advances, or reimbursements for travel and related
lodging and subsistence permitted by subdivision (e).
(2) Wedding gifts and gifts exchanged between individuals on
birthdays, holidays and other similar occasions, provided that the
gifts exchanged are not substantially disproportionate in value.
(3) A gift, bequest, favor, or loan from any person whose
preexisting relationship with a judge would prevent the judge from
hearing a case involving that person, under the Code of Judicial
Ethics adopted by the California Supreme Court.
(c) For purposes of this section, "judge" means judges of the
superior courts, and justices of the courts of appeal or the Supreme
(d) The gift limitation amounts in this section shall be adjusted
biennially by the Commission on Judicial Performance to reflect
changes in the Consumer Price Index, rounded to the nearest ten
(e) Payments, advances, or reimbursements, for travel, including
actual transportation and related lodging and subsistence which is
reasonably related to a judicial or governmental purpose, or to an
issue of state, national, or international public policy, is not
prohibited or limited by this section if any of the following apply:
(1) The travel is in connection with a speech, practice
demonstration, or group or panel discussion given or participated in
by the judge, the lodging and subsistence expenses are limited to the
day immediately preceding, the day of, and the day immediately
following the speech, demonstration, or discussion, and the travel is
within the United States.
(2) The travel is provided by a government, a governmental agency
or authority, a foreign government, a foreign bar association, an
international service organization, a bona fide public or private
educational institution, as defined in Section 203 of the Revenue and
Taxation Code, or a nonprofit charitable or religious organization
which is exempt from taxation under Section 501(c)(3) of the Internal
Revenue Code, or by a person domiciled outside the United States who
substantially satisfies the requirements for tax exempt status under
Section 501(c)(3) of the Internal Revenue Code.
For purposes of this section, "foreign bar association" means an
association of attorneys located outside the United States (A) that
performs functions substantially equivalent to those performed by
state or local bar associations in this state and (B) that permits
membership by attorneys in that country representing various legal
specialties and does not limit membership to attorneys generally
representing one side or another in litigation. "International
service organization" means a bona fide international service
organization of which the judge is a member. A judge who accepts
travel payments from an international service organization pursuant
to this subdivision shall not preside over or participate in
decisions affecting that organization, its state or local chapters,
or its local members.
(3) The travel is provided by a state or local bar association or
judges professional association in connection with testimony before a
governmental body or attendance at any professional function hosted
by the bar association or judges professional association, the
lodging and subsistence expenses are limited to the day immediately
preceding, the day of, and the day immediately following the
(f) Payments, advances, and reimbursements for travel not
described in subdivision (e) are subject to the limit in subdivision
(g) No judge shall accept any honorarium.
(h) "Honorarium" means any payment made in consideration for any
speech given, article published, or attendance at any public or
private conference, convention, meeting, social event, meal or like
(i) "Honorarium" does not include earned income for personal
services which are customarily provided in connection with the
practice of a bona fide business, trade, or profession, such as
teaching or writing for a publisher, and does not include fees or
other things of value received pursuant to Section 94.5 of the Penal
Code for performance of a marriage.
For purposes of this section, "teaching" shall include
presentations to impart educational information to lawyers in events
qualifying for credit under Mandatory Continuing Legal Education, to
students in bona fide educational institutions, and to associations
or groups of judges.
(j) Subdivision (a) and (e) shall apply to all payments, advances,
reimbursements for travel and related lodging and subsistence.
(k) This section does not apply to any honorarium that is not used
and, within 30 days after receipt, is either returned to the donor
or delivered to the Controller for deposit in the General Fund
without being claimed as a deduction from income for tax purposes.
(l) "Gift" means any payment to the extent that consideration of
equal or greater value is not received and includes a rebate or
discount in the price of anything of value unless the rebate or
discount is made in the regular course of business to members of the
public without regard to official status. Any person, other than a
defendant in a criminal action, who claims that a payment is not a
gift by reason of receipt of consideration has the burden of proving
that the consideration received is of equal or greater value.
However, the term "gift" does not include:
(1) Informational material such as books, reports, pamphlets,
calendars, periodicals, cassettes and discs, or free or reduced-price
admission, tuition, or registration, for informational conferences
or seminars. No payment for travel or reimbursement for any expenses
shall be deemed "informational material."
(2) Gifts which are not used and which, within 30 days after
receipt, are returned to the donor or delivered to a charitable
organization without being claimed as a charitable contribution for
(3) Gifts from a judge's spouse, child, parent, grandparent,
grandchild, brother, sister, parent-in-law, brother-in-law,
sister-in-law, nephew, niece, aunt, uncle, or first cousin or the
spouse of any such person; provided that a gift from any such person
shall be considered a gift if the donor is acting as an agent or
intermediary for any person not covered by this paragraph.
(4) Campaign contributions required to be reported under Chapter 4
(commencing with Section 84100) of Title 9 of the Government Code.
(5) Any devise or inheritance.
(6) Personalized plaques and trophies with an individual value of
less than two hundred fifty dollars ($250).
(7) Admission to events hosted by state or local bar associations
or judges' professional associations, and provision of related food
and beverages at such events, when attendance does not require
"travel" as described in paragraph (3) of subdivision (e).
(m) The Commission on Judicial Performance shall enforce the
prohibitions of this section.