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Key Takeaways
Litigators in California should take note of the California Supreme Court’s recent holding in J.O. v. Superior Court, 19 Cal. 5th 753 (2026) as it changes the review that applies to the use of Section 170.6 to disqualify judges in the state.
The California Supreme Court recently overhauled 50-year-old precedent governing a litigant's right to disqualify a judge under California Code of Civil Procedure Section 170.6, holding that bad faith blanket challenges to judges are no longer shielded from judicial scrutiny. J.O. v. Superior Court, 19 Cal. 5th 753 (2026).
Section 170.6 allows any party or attorney to disqualify a judge by submitting an affidavit or orally stating under oath that the judge is prejudiced against the party or attorney. Until J.O., under Solberg v. Superior Court, 561 P.2d 1148 (Cal. 1977), courts were generally barred from scrutinizing even systematic, bad faith uses of this procedure.
The recent J.O. decision stems from a San Joaquin County conservatorship proceeding. The petitioner alleged that, after the judge assigned to the proceeding admonished an attorney from the County Counsel’s office for improper conduct, County Counsel moved to strike the judge under Section 170.6 more than 325 times in less than four months, eventually requiring her reassignment to a different department. J.O.,19 Cal. 5th at 761. Citing Solberg, the trial court and court of appeal denied the petition. Id. at 763.
But the California Supreme Court reasoned that increased caseloads, tighter budgets, and the rise of specialty courts have made blanket abuses of Section 170.6 far more disruptive than Solberg anticipated. Id. at 762. The court held that using Section 170.6 for reasons other than a genuine belief in bias materially impairs judicial operations, and overruled Solberg to the extent it prevented courts from scrutinizing alleged blanket abuses. Id. at 763.
The court instead adopted a three-step framework modeled on Batson v. Kentucky, 476 U.S. 79 (1986)—a U.S. Supreme Court decision addressing bad faith peremptory challenges to exclude jurors—and transposed that framework to the judicial-disqualification context. J.O.,19 Cal. 5th at 782. The party opposing the disqualification must timely object and make a prima facie showing that the challenges reflect a bad faith blanket policy rather than a genuine belief in bias. Id. If that showing is made, a hearing is held before a different judge, at which point the burden shifts to the proponent of the Section 170.6 motion to articulate a good faith basis for its belief that the targeted judge is personally prejudiced against the party in the particular case. Id. at 783. If the hearing judge finds the motion was made in bad faith, it is denied and the case remains with the original judge; if made in good faith, the motion is granted. Id.
Although Section 170.6 remains available to litigants with a genuine, good faith belief in judicial bias, this decision signals a meaningful shift in California practice.
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