A challenge to a trial judge for cause is subject to waiver if not filed at the earliest practicable opportunity. North American Title waited a year in North Am. Title Co. v. Sup. Ct. (Fresno) (D5 May, 19, 2023 No. F084913) --- Cal.Rptr.3d --- (2023 WL 3560761), before accusing the judge of bias for his statements that North American was playing a “shell game” to evade an eventual judgment. So the judge struck the statement of disqualifications as untimely.
But the Court of Appeal issued a writ reinstating the challenge. Tracing the legislative history, the Fifth District held that challenges based on personal bias were not subject to waiver.
Here, the trial judge in this wage-and-hour class action had grown frustrated after the title company defendant engaged in several acquisitions and name changes. The judge repeatedly accused the defendant of playing a “shell game,” engaging in “trickery” and “scheming” and “a corporate game of three-card monte,” and trying “every device to make sure that they evade the payment of their obligation.” And more like that.
For whatever reason, the defendant waited around a year before filing a statement of disqualification. But no matter. While a statement normally must be filed at the earliest practicable opportunity, the Court of Appeal noted that Code of Civil Procedure section 170.3, subdivision (b) specifically states “[t]here shall be no waiver of disqualification where the basis therefor is … [¶ ] (A) The judge has a personal bias or prejudice concerning a party.
But won’t this invite abuse? The court noted that normally there is no reason for a party to delay before challenging the judge for bias. And if a party does delay to within 10 days before the start of a trial, under section 170.4(c), the challenge would not prevent the trial from going forward.