In the Roman Republic, the right to appeal (provocatio, as in “provocation”) from a magistrate’s summary use of power was regarded as one of the most important safeguards of liberty. The democratic force of the right to appeal survives today. (See, e.g., Griffin v. Illinois (1956) 351 U.S. 12, 18; Cassandra Burke Robertson, The Right to Appeal (2013), 91 N.C. L. Rev. 1219.) Indeed, it is often said that everything may be reviewed on appeal, but as in almost every aspect of law, there is an exception: In California, a trial judge’s refusal to be recused by way of a peremptory challenge is reviewable only by writ. (Code Civ. Proc., § 170.6.) Here are some practical tips for optimizing the chances of obtaining review.

Section 170.6 sets out the right to peremptorily challenge a trial court judge when parties have a good-faith belief that the judge is prejudiced against them or their cause. In practice, such motions are rarities, but they have an important role in ensuring a fair trial. (See Maas v. Superior Court (People) (2016) 1 Cal.5th 962, 972-973.) A trial judge lacks discretion to deny a procedurally proper Section 170.6 motion. (Ibid.) In practice, however, trial judges sometimes do improperly deny Section 170.6 motions. (See, e.g., Jonathon M. v. Superior Court (People) (2006) 141 Cal.App.4th 1093, 1099.) The question is what to do about it.

The only way to review an order denying a Section 170.6 motion is to take a writ. (CCP § 170.3, subd. (d).) There is no right to appeal if the trial judge refuses to be disqualified—even on appeal following entry of a final judgment. (See, e.g., People v. Panah (2005) 35 Cal.4th 395, 444–445.) But writ review is almost exclusively within the Court of Appeal’s discretion and rarely granted.

Here are some suggestions in case the trial court denies your meritorious Section 170.6 motion:

  • First, the turnaround time is fast. The writ petition must be filed and served within 10 days after service of notice of entry of the order denying the peremptory challenge. (CCP § 170.3, subd. (d).)
  • Second, argue that because “writ review is the exclusive means of appellate review of a final order or judgment, [the] appellate court may not deny an apparently meritorious writ petition[.]” (Powers v. City of Richmond (1995) 10 Cal.4th 85, 114, emphasis added; see PG&E Corp. v. PUC (2004) 118 Cal.App.4th 1174, 1193.)
  • Third, if the issues giving rise to the Section 170.6 motion are serious enough to merit a due process challenge, that is a separate claim. If properly preserved, that may be asserted on direct appeal. (See Panah, supra, 35 Cal.4th at p. 445, fn. 16.)

Navigating writs and appeals is an art, so much so that the State Bar includes appellate law as an area of specialization. An especially tricky area is determining whether a particular order is appealable. But at least when it comes to an order denying a meritorious peremptory challenge, there is some black and white—take a writ, fast.

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Josephine Mason
Associate at Hanson Bridgett LLP
Before joining Hanson Bridgett, where she specializes in appeals and law and motion in the state and federal courts, Josephine served as law clerk to the Honorable James L. Dennis on the U.S. Court of Appeals for the Fifth Circuit. She began her career as an appellate attorney at the national appellate litigation boutique Horvitz & Levy LLP, based in Southern California.