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California Supreme Court limits bad faith blanket use of section 170.6 in J.O. v. Superior Court

7/8/26

By: Mansour Chopan

For decades, California litigators have treated Code of Civil Procedure section 170.6 as one of the most potent procedural devices in trial practice. If the motion was timely and properly presented, the assigned judge was disqualified upon a sworn statement of prejudice, with no inquiry into the truth of the assertion. In J.O. v. Superior Court of San Joaquin County, the California Supreme Court preserved that general rule, but held that the statute has constitutional limits when it is allegedly used through a bad faith blanket policy aimed at a particular judge.

The case arose from conservatorship proceedings in San Joaquin County. The petitioner alleged that, after Judge Erin E. Guy Castillo admonished a deputy county counsel attorney for improper conduct, County Counsel began filing section 170.6 motions against Judge Guy Castillo in conservatorship matters on a blanket basis. According to the petitioner, approximately 325 challenges were filed in less than four months, and Judge Guy Castillo was later reassigned to a different department. The Supreme Court did not decide whether those allegations were true, but granted review to determine whether blanket abuse of section 170.6 can be scrutinized on separation of powers grounds.

The Court answered yes to that question. It overruled Solberg v. Superior Court to the extent Solberg had treated blanket abuses of section 170.6 as immune from as applied constitutional challenge. The Court held that bad faith blanket use of section 170.6 can materially impair the judiciary’s core function of ensuring the orderly and effective administration of justice.

The Court grounded that conclusion in the realities of the modern California court system. It emphasized that today’s superior courts face heavier caseloads, tighter budgets, judicial shortages, and a proliferation of specialized calendars and proceedings. In that environment, repeated strikes against the same judge may do more than inconvenience the court. They may effectively remove a judge from a calendar, disrupt case management, and undermine the presiding judge’s authority to assign judges to particular departments and case types.

Just as important, the Court was careful to explain what J.O. does not do. The decision does not invalidate section 170.6 on its face. It does not eliminate the statute’s automatic nature in the ordinary case. And it does not require a moving party to prove actual bias. Instead, the Court reaffirmed that section 170.6 continues to serve the legitimate purpose of protecting confidence in the judiciary by allowing litigants to proceed on a good faith belief of prejudice without litigating actual bias. Absent a timely objection and a prima facie showing of a bad faith blanket policy, a proper section 170.6 motion still must be granted without further inquiry.

To implement its holding, the Court adopted a burden shifting framework modeled on Batson v. Kentucky (1986) 476 U.S. 79. First, the opponent of the section 170.6 motion must timely object and make a prima facie showing that the motion is part of a bad faith blanket policy directed at the challenged judge. Persistent strikes against the same judge in all or a substantial portion of assigned cases, or in all or a substantial portion of cases of a particular type, may be persuasive on their own. An abrupt increase in strikes after an adverse ruling may also support an inference of bad faith.

If that prima facie showing is made, a different judge must conduct a hearing. At that hearing, the burden shifts to the moving party to provide a clear and reasonably specific explanation of the legitimate reasons for believing the challenged judge is prejudiced in the particular case. The moving party need not prove actual prejudice, but must identify facts or circumstances related to the case that support a subjectively genuine good faith belief. The trial court then decides whether the objecting party has proven a bad faith blanket policy.

The opinion also provides meaningful guidance on what will not suffice. A litigant’s belief that a judge is likely to rule against its interests is not enough. Nor are prior rulings, views on the law, the exercise of judicial discretion, or personality traits proper grounds for a claim of prejudice under section 170.6. The Court reiterated that “prejudice” in this context refers to the judge’s mental attitude or disposition toward a party, without regard to the evidence.

Another notable feature of the decision is that the Court did not confine its holding to government actors. It concluded that the constitutional concern arises from the legislative scheme itself when it is abused in a blanket fashion, meaning the same argument may be raised against private litigants or private law firms whose repeated challenges materially interfere with judicial administration. That point may have particular significance in specialized practice areas and in smaller counties where repeated strikes can affect an entire docket.

Practical Implications

For California practitioners, the practical message is straightforward. Section 170.6 remains a powerful and generally automatic device, but J.O. makes clear that it cannot be used as a mechanism to control judicial assignments through bad faith patterned strikes. One off, case specific challenges made in genuine good faith remain protected. Repeated strikes directed at the same judge, especially within a specialized assignment, now carry meaningful litigation risk and may require explanation if challenged.

For more information contact Mansour Chopan at mansour.chopan@fmglaw.com.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.