Bill Text: CA AB2125 | 2023-2024 | Regular Session | Amended

California Assembly Bill 2125

Bill Title: Judicial officers: disqualification.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-04-11 - Re-referred to Com. on APPR. [AB2125 Detail]

Download: California-2023-AB2125-Amended.html

Amended IN Assembly April 10, 2024

Amended IN Assembly March 06, 2024

Amended IN Assembly February 26, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2125

Introduced by Assembly Member Garcia

February 06, 2024

An act to ~~amend~~ amend, repeal, and add Section 170.6 of, to add and repeal Section 170.6.1 of, and to repeal and add Section 170.7 of, the Code of Civil Procedure, relating to courts.

LEGISLATIVE COUNSEL'S DIGEST

AB 2125, as amended, Garcia. Judicial officers: disqualification.

Existing law authorizes a party or attorney in an action or proceeding to move to disqualify a judge, court commissioner, or referee for prejudice against a party or attorney or the interest of a party or attorney, as specified. Prejudice may be established 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 is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that they cannot, have a fair and impartial trial or hearing. Existing law requires, in specified circumstances, the Chair of the Judicial Council to assign some other judge, court commissioner, or referee to try the cause or hear the matter as promptly as possible. Existing law specifies that these provisions do 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 in that division.

This ~~bill~~ bill, from January 1, 2025, to January 1, 2031, would repeal that exclusion and would extend these provisions to authorize a party or attorney to disqualify a justice or justices of an appellate court for prejudice against a party or attorney, or the interest of a party or attorney, as specified. The bill would authorize the motion directed to one or more justices of a court of appeal to only be made following reversal by the California Supreme Court of a court of appeal’s decision, and may only be directed to the justice or justices who authored or concurred in the prior decision and who is or are assigned to further consider the matter. The bill would authorize the party who obtained the reversal of a decision of a court of appeal to make that motion regardless of whether that party or side has previously done so. The bill would require, for cases reversed on or after January 1, 2025, the motion to be made within 30 days after the party or the party’s attorney has been notified of the assignment. The bill would require, for cases reversed before January 1, 2025, and remaining pending as of the effective date of this act, the motion to be made on or before January 31, 2025. The bill would require, 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, that the presiding justice assign other justice or justices or transfer the case to another panel of justices. The bill would also require, in specified circumstances, the Chair of the Judicial Council to assign some other justice or justices to hear the matter as promptly as possible.

The bill would require the California Law Revision Commission to deliver, on or before September 30, 2027, a study regarding the recusal of judicial officers for prejudice and conflict of interest, as specified. The bill would require the California Law Revision Commission to consult with the Commission on Judicial Performance in developing the study. This bill would make these provisions inoperative on September 30, 2031, and would repeal it as of January 1, 2032.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 170.6 of the Code of Civil Procedure is amended to read:

170.6.

(a) (1) A judge, court commissioner, or referee of a superior court of the State of California, or justice of a court of appeal of the State of California, shall not try a 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 is established as provided in this section that the judge, justice, or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.

(A) If 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 with 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 criminal 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 directed to the trial of a civil 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 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 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 a judge, court commissioner, or referee entertain the motion if it is made after the drawing of the name of the first juror, or if there is 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 specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly as possible. 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 in this paragraph at the time and in the manner herein provided.

A motion under this paragraph directed to a judge, court commissioner, or referee of a superior court 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 (4), 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 assignment.

(B) A motion under this paragraph directed to one or more justices of a court of appeal may only be made following reversal by the California Supreme Court of a court of appeal’s decision, and may only be directed to the justice or justices who authored or concurred in the prior decision and is or are assigned to further consider the matter. Notwithstanding paragraph (4), the party who obtained the reversal of a decision of a court of appeal may make a motion under this section regardless of whether that party or side has previously done so. For cases reversed on or after January 1, 2025, the motion shall be made within 30 days after the party or the party’s attorney has been notified of the assignment. For cases reversed before January 1, 2025, and remaining pending as of the effective date of the act adding this subparagraph, the motion shall be made on or before January 31, 2025.

(3) A party to a civil action making that motion under this section shall serve notice on all parties no later than five days after making the motion.

(4) 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, or presiding justice shall assign some other judge, justice or justices, 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, panel of justices, court commissioner, or referee of the court in which the trial or matter is pending or, if there is no other judge, panel of justices, 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, justice or justices, 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. 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 proceeding.

(5) 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.

(6) Any affidavit filed pursuant to this section shall be in substantially the following form:

(Here set forth court and cause)
State of California,	ss.	PEREMPTORY CHALLENGE
County of

____, being duly sworn, deposes and says: That they are a party (or attorney for a party) to the within action (or special proceeding). That ____ the judge, justice, court commissioner, or referee before whom the trial of the (or a hearing in the) action (or special proceeding) is pending (or to whom it is assigned) is prejudiced against the party (or their attorney) or the interest of the party (or their attorney) so that affiant cannot or believes that they cannot have a fair and impartial trial or hearing before the judge, justice, court commissioner, or referee.
Subscribed and sworn to before me this
______ day of ______, 20__.
(Clerk or notary public or other
officer administering oath)

(7) 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.

(d) This section shall remain in effect only until January 1, 2031, and as of that date is repealed.

SEC. 2.

Section 170.6 is added to the Code of Civil Procedure, to read:

170.6.

(a) (1) A judge, court commissioner, or referee of a superior court of the State of California shall not try a 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 is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.

(2) A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior 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 a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that they cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee. If 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 with 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 criminal 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 directed to the trial of a civil 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 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 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 a judge, court commissioner, or referee entertain the motion if it is made after the drawing of the name of the first juror, or if there is 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 specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly as possible. 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 in this paragraph at the time and in the manner herein provided.

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 (4), 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 assignment.

(3) A party to a civil action making that motion under this section shall serve notice on all parties no later than five days after making the motion.

(4) 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. 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 proceeding.

(6) Any affidavit filed pursuant to this section shall be in substantially the following form:

(Here set forth court and cause)
State of California,

ss.
PEREMPTORY CHALLENGE
County of
____, being duly sworn, deposes and says: That they are
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) action (or special proceeding) is pending (or to whom it is assigned) is prejudiced against the party (or their attorney) or the interest of the party (or their attorney) so that affiant cannot or believes that they 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)
(7) 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.
(d) This section shall become operative January 1, 2031.

SEC. 3.

Section 170.6.1 is added to the Code of Civil Procedure, to read:

170.6.1.
(a) On or before September 30, 2027, the California Law Revision Commission shall deliver to the Legislature a study regarding recusal of judicial officers for prejudice and conflict of interest.
(b) In developing the study required by this section, the California Law Revision Commission shall consult with the Commission on Judicial Performance.
(c) The study shall, at minimum, include a discussion of the following:
(1) The effectiveness of Section 170.6 in eliminating bias in judicial proceedings.
(2) The prevalence of judicial officers hearing matters in which the canons of judicial ethics should have warranted a recusal.
(3) The impact on case hearing times of judicial recusals.
(4) The costs to the courts and to litigants of judicial recusals.
(d) A report submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
(e) Pursuant to Section 10231.5 of the Government Code, this section shall become inoperative on September 30, 2031, and, as of January 1, 2032, is repealed.

SEC. 2.SEC. 4.

Section 170.7 of the Code of Civil Procedure is repealed.

SEC. 5.

Section 170.7 is added to the Code of Civil Procedure, to read:

170.7.
(a) 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.
(b) This section shall become operative January 1, 2031.