California High Court’s New Judicial Removal Process Welcomed

A precedent-overturning decision on judicial disqualification from the California Supreme Court is being seen as a long-overdue fix to a system practitioners say was ripe for abuse.

Some 325 disqualification challenges filed against Judge Erin Guy Castillo by one county counsel’s office prompted the state’s high court to address “blanket abuses” of the system.

The state high court decided on May 28 that California Code of Civil Procedure section 170.6—the judicial disqualification process for judges believed to be prejudiced against a party—violates the separation of powers and can be challenged. It overturned aspects of a 1977 ruling that set up a system where disqualification motions were automatically granted so long as the motion is timely and properly presented.

Bruce Brusavich, a partner with Abir Cohen Treyzon Salo LLP has defended the prior disqualification procedures as being essential for protecting litigants against judicial bias. Still, he said this ruling, “is a very well reasoned opinion and is a bit necessary.”

It puts “a good balance and good mechanism for stopping the blanket objections that occurred to the judge repeatedly in” this case, he said, adding, “I’ve never agreed with these blanket objections.”

‘A Barrier to Justice’

The case, as well as four others pending before the state Supreme Court that are likely now to be remanded, allege California’s automatic disqualification procedure was abused to remove Castillo from various conservatorship cases.

The San Joaquin County Counsel’s Office lodged the many motions to disqualify Castillo due to its dissatisfaction with her rulings against it and its clients. No more than that was necessary under the old procedures because each motion was filed in a timely manner and ultimately granted by the San Joaquin County Superior Court.

Lawyers for the office didn’t respond to request for comment.

But Castillo’s situation isn’t the first or only court-noted abuse of automatic disqualification procedures.

In 2016, an Orange County prosecutor “invoked an improper blanket challenge to a particular judge that substantially disrupted the respondent court’s operations,” according to a state appeals court’s opinion.

There, the motions came in response to the judge’s decision to exclude testimony from a separate murder trial after he found the county prosecutors relied on statements improperly obtained through jailhouse informants. The prosecutor requested and received disqualification of the judge from 46 of 49 murder trials between February 2014 and September 2015 after that, according to the opinion.

The appeals court questioned the wisdom of 1977’s Solberg v. Superior Court of San Francisco then, urging the state Supreme Court to re-visit the issue.

“As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of section 170.6 is a barrier to justice and its cost to a court should be reconsidered,” Justice Kathleen E. O’Leary of the California Courts of Appeal said in the 2016 opinion.

For nearly 50 years, “appellate courts have said this really isn’t right, but we’re bound by this Solberg decision,” Brusavich said. “It was good for the court to finally step in and tweak it a little bit for this one problem.”

The Fix

Justice Joshua P. Groban said in the May 28 opinion that precedent enabled parties to “unilaterally decide, for improper reasons, that a judge cannot oversee all or a substantial portion of cases.”

Instead, the ruling established a new three-step framework modeled on constitutional jury selection challenges.

Any party wishing to challenge a motion for a judge’s disqualification motion must first timely object to it and present initial evidence showing the motion is based on a “bad faith blanket policy” rather than a “good faith belief the judge is prejudiced.”

One factor that must be considered is whether a party has made “persistent strikes” against the same judge in “all or a substantial portion of cases” they’re assigned, the opinion said. The burden then shifts to the moving party for them to give an “adequate” explanation for the challenges.

“Judicial independence is one of the most important foundations of our judicial and governmental system,” said Nelson Lu, a San Joaquin County public defender who challenged Castillo’s disqualification, in a statement.

“J.O. hopefully ensured district attorneys and county counsel would not ever again be able to misuse section 170.6 again to intimidate judges and force the judicial branch to bend to their will, like the Orange County DA tried to do in Tejeda,” Lu said.

The case is J.O. v Superior Court of San Joaquin County, Cal., No. S287285, 5/28/26.