The judges strike back

As it strives for uniformity and fairness, the justice system also acknowledges that lawyers and judges are human. One safety valve is section 170.6 in the California Code of Civil Procedure. It's a device that allows a party to "paper" or disqualify a trial judge for asserted prejudice without having to offer proof.

Prosecutors and defense attorneys have used the procedure plenty over the decades since the California Supreme Court gave 170.6 its blessing in a landmark 1977 ruling. Complaints of abuse arose. And last week the high court concluded that some had gone way too far in issuing blanket 170.6 challenges targeting disfavored judges.

Yet the opinion on May 28 recognized 170.6's utility and devised a reform, not a rejection. Trial judges are now newly able to clap back against bad-faith recusal motions, closing the door on the absolute immunity the motions previously enjoyed.

To illustrate the inner workings of the 170.6 procedure, look at the litigation behind last week's case, J.O. v. Superior Court; the 1977 case, Solberg v. Superior Court; and a separate case of a young lawyer currently seeking to salvage her career in a dispute with a client.

Targeted for disqualification in 1977 was Judge Ollie Marie-Victoire of the San Francisco Municipal Court. A trailblazing feminist lawyer and Supreme Court law clerk who took the bench in 1974, she angered prosecutors by dismissing prostitution charges against women defendants on equal protection grounds when defense lawyers protested that the men who hired the prostitutes weren't prosecuted for the crime.

When deputy district attorneys began to paper Marie-Victoire with 170.6 motions, she declined to disqualify herself, noting that she had adjudicated similar prosecutions against other defendants previously. She offered the prosecutor the opportunity to challenge her for cause, but he refused.

At the Supreme Court, the vote was 6-1 that the recusal statute should stand as written and Marie-Victoire must exit the case. The majority opinion by Justice M. Stanley Mosk said the court "strongly disapproved of the practice of blanket challenges." But the justices did nothing to restrain them.

Acting Chief Justice Mathew O. Tobriner saw it differently in a dissent that foreshadowed the opinion the court produced last week.

"In my view, the use of 'blanket' challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality," Tobriner wrote.

"The instant ruling allows a litigant to remove a judge from the bench despite the patently false nature of the claim of prejudice offered. No matter how transparent the deception, the majority instruct the trial judge to step aside. I cannot concur in the majority's conclusion that the judiciary is powerless to prevent such an abusive exercise of the disqualification procedure." Solberg v. Superior Court, 19 Cal.3d 182 (1977).

Marie-Victoire went on to become the second woman appointed to the San Francisco Superior Court bench and heard cases for more than 30 years. She died in 2012.

Blanket papering of judges grew and led appellate courts to question Solberg's wisdom. In 2014 in Orange County, Judge Thomas Goethels uncovered a longstanding jailhouse snitch scandal that prejudiced criminal defendants. He disqualified the entire district attorney's office from prosecuting one case, leading the DA to paper Goethals 46 times over the subsequent months.

The Orange County Superior Court tried to halt the blanket disqualification practice. When the matter reached the 4th District Court of Appeal, the Superior Court explained that it could simply reassign Goethals but refused.

"The very thought of this option is offensive," wrote the court's legal team, which included Erwin Chemerinsky. "To allow a party to manipulate the court into removing a judge from hearing certain criminal cases--when that judge, in the performance of his judicial duties, has conducted a hearing which exposed that same party's misconduct--not only goes against the very cornerstone of our society: the rule of law, but would be a concession against judicial independence."

The panel majority affirmed Solberg, reluctantly, and asked the Supreme Court to revisit the issue. Then-Justice David A. Thompson dissented, calling the 170.6 procedure, quoting from an earlier case, "a concealed weapon to be used to the manifest detriment of the judicial department." People v. Superior Court (Tejeda), 1 Cal. App.5th 892 (2016).

Goethals later served on the 4th DCA himself and now works for ADR Services Inc.

It took another decade before the Supreme Court last week took the rare step of reversing one of its own rulings, the part of Solberg that affirmed the immunization from judicial inquiry of blanket challenges under section 170.6.

"We now agree with Justice Tobriner's ultimate conclusion that we are not powerless to act in the face of such an assault on the judiciary," Justice Joshua P. Groban wrote for the unanimous court.  J.O. v. Superior Court, S287285 (Ca. S. Ct., op. filed May 28, 2026).

The ruling allows challenges believed to be brought in bad faith to be subject to a hearing into the challenger's claim of judicial prejudice.

The high court justified the new procedure on separation of powers grounds. The Legislature went too far in drafting section 170.6 so broadly as to allow the disruptions caused by the blanket disqualification of members of the third branch, the court held.

The case arose in San Joaquin County, where Judge Erin E. Guy Castillo admonished a deputy from the county counsel's office for allegedly improper conduct in a dependency case. The lawyer's bosses retaliated over the following months by filing about 325 section 170.6 motions against her--seeking to remove her from her court assignment to mental health and conservatorship cases, according to court officials.

The officials did eventually shift Guy Castillo to a misdemeanor and small claims assignment. When the court's protests over the county counsel's blanket disqualification campaign reached an appellate panel, Solberg's automatic process requirement again blocked any chance of relief.

For Guy Castillo's part, she's left the Superior Court after federal judges at the 9th U.S. Circuit Court of Appeals hired her to be a magistrate judge in Fresno.

When the Supreme Court took up the issue, on an unusual straight grant without a Court of Appeal opinion, Groban explained, it found that while blanket abuses of section 170.6 may have been tolerable in 1977, times have changed. Widespread challenges now have an outsized impact on the administration of justice as annual felony filings increased from 54,653 in 1977 to 179,821 in 2024.

Judicial shortages and the increased workload have led to a stressed system that can't be allowed to get short-circuited by the chaos of blanket challenges. "The court is busier and more under resourced than it was in 1977, making the impacts of blanket challenges far more severe," Groban wrote.

Also, the shift toward judicial specialization in juvenile departments, family law and a wide array of collaborative justice courts has intensified the disruptions of blanket challenges. "If section 170.6 can be weaponized to remove a dedicated judge from a specialized calendar, like juvenile dependency court and family court, then it can defeat the presiding judge's assignment authority," Groban wrote.

Even so, section 170.6 challenges remain a legitimate litigation tool in individual cases. Labor and employment attorney Tina Mehr, struggling to re-right her career after losing a fee fight with a former client and getting fined and suspended by the State Bar, needed every tool available to get back on track.

After a trial judge ruled against her motion to vacate an arbitrator's fee judgment, and then dismissed Mehr's motion to set aside the judgment, Mehr encountered a creative and persistent appellate attorney, Scott L. Tillett of Pine Tillett LLP. An expert on post-judgment appeals, Tillett and law partner Norman Pine took Mehr's case to the 2d District Court of Appeal and won a ruling that the trial judge had been wrong to reject Mehr's motion to set aside the judgment on the mistaken ground that the court lacked authority to make that call.

The appellate panel told the lower court to determine whether Mehr satisfied the requirements for relief based on extrinsic mistake. Mehr v. Korbin, B335052 (2d DCA, unpub. op. filed July 18, 2025).

Tillett decided that Mehr's best chance to move forward successfully was to start over with a fresh judge. The 170.6 procedure can be misused, but it had a valuable place in Mehr's case, Tillett said, after studying last week's Supreme Court opinion.

"I agree that such blanket abuses should not be condoned. But this does not have any bearing on a single litigant's challenge to a trial judge after reversal of a ruling on appeal. Judges are human and therefore necessarily fallible. If a judge takes a seemingly unreasonable, and ultimately wrong (as decided by the Court of Appeal) position on a particular issue, it is completely reasonable for a litigant to not want to risk further proceedings in front of that same judge."

Tillett observed, "The [J.O. v. Superior Court] opinion specifically states that the Supreme Court does not question the facial constitutionality of section 170.6's 'efficient and discreet procedure' ... when used as intended." It added: "We underscore that our opinion in no way restricts a litigant's right in a particular case to disqualify a judge whom he or she believes is 'prejudiced' within the meaning of section 170.6, subdivision (a)(2)."

Mehr retried her case before a new judge, lost, and sought reconsideration. This time the new judge reversed her decision in full, clearing the way for another shot at vacating the arbitrator's fee decision against her. Tillett is working to get the State Bar to abate its penalty against Mehr.

"The saga is not over yet but Tina's prospects for victory are looking extremely good right now," Tillett said.

It was an example of section 170.6's upside.