§ 170.3.Procedure

Title 2. Judicial Officers · Chapter 3. Disqualifications of Judges · Last amended 2007 · Last verified July 28, 2026

In one sentenceSection 170.3 sets out the procedure a judge follows when disqualifying themselves, the limited waiver process available to the parties, and the steps a party must take to challenge a judge who will not step aside voluntarily.

Full Text of § 170.3

Text sizeJump to: (a) (b) (c) (d)

(a)

(1) If a judge determines himself or herself to be 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 (b).

(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 if 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 that matter.

(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) If 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.

(c)

(1) If a judge who should disqualify himself or herself 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.

(3) Within 10 days after the filing or service, whichever is 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.

(4) A judge who fails to file a consent or answer within the time 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) A judge who refuses to recuse himself or herself shall not 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 that 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 this subdivision 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 any 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).

(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 only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court’s order determining the question of disqualification. If the notice of entry is served by mail, that time shall be extended as provided in subdivision (a) of Section 1013.

End

Plain-English Summary

§ 170.1 supplies the grounds for disqualification; § 170.3 supplies the mechanics. Subdivision (a) covers self-disqualification: a judge who determines they are disqualified must notify the presiding judge (or, if the disqualified judge is the presiding judge, whoever assigns replacements) and stop participating, except for the limited actions § 170.4 still allows.

Subdivision (b) lets the parties waive most disqualifications, but only after the judge discloses the basis on the record, and only in writing, signed by every party and lawyer. Two grounds can never be waived: a judge’s personal bias against a party, and a judge who served as an attorney in the matter or was a material witness. A judge also cannot press the parties to waive or try to learn who favored a waiver.

Subdivision (c) covers the case where a judge who should step aside does not. A party can file a written, verified statement of disqualification at the earliest practical opportunity, serving it on the other parties and on the judge. The judge then has 10 days to either consent or file a verified answer; silence within that window counts as consent. A judge cannot rule on their own disqualification — that question goes to another judge the parties agree on, or, absent agreement within five days, to a judge picked by the chairperson (or vice chairperson) of the Judicial Council.

Subdivision (d) makes the ruling on disqualification unreviewable by ordinary appeal. The only route is a writ of mandate to the Court of Appeal, filed and served within 10 days of written notice of the order — extended under § 1013 if that notice was mailed.

Frequently Asked Questions

Can the parties waive a judge’s disqualification in California?

Sometimes. § 170.3(b) allows a signed, on-the-record waiver for most grounds, but never for a judge’s personal bias against a party or for a judge who served as an attorney or material witness in the matter.

What happens if a judge refuses to step aside despite a disqualifying fact?

A party can file a written, verified statement of disqualification under § 170.3(c), and the judge then has 10 days to consent or answer; failing to respond in that window is treated as consent.

Who decides whether a challenged judge is disqualified?

Not the challenged judge. § 170.3(c)(5) sends that decision to another judge agreed on by the parties, or, without agreement within five days, to a judge selected by the Judicial Council’s chairperson.

Can a disqualification ruling be appealed?

Not by ordinary appeal. § 170.3(d) makes the only route a writ of mandate to the Court of Appeal, filed and served within 10 days of written notice of the order.

Does disqualifying a judge undo the rulings that judge already made?

Not automatically. § 170.3(a)(4) says rulings made before the disqualification arose stand unless good cause exists to set them aside.

Amendment History

Added Stats 1984 ch 1555 § 7. Amended Stats 1990 ch 910 § 1 (SB 2316); Stats 2006 ch 567 § 4 (AB 2303), effective January 1, 2007.

Source & verification. Section text is reproduced verbatim from the California Legislative Information. Enacted by the California Legislature. Last verified July 28, 2026. · Official source

Also known as: 170.3 judicial disqualification procedurehow to challenge a judge for cause californiastatement of disqualification californiawaiver of judge disqualification californiawrit of mandate judge disqualification