Can a spouse impliedly waive the right to file a motion to disqualify a California Family Court judge for bias or prejudice under California Code of Civil Procedure section 170.3?

In “N. Am. Title Co. v. Superior Court of Fresno Cnty.,’ No. F084913 (Cal. Ct. App. May. 19, 2023), the Court of Appeals for the Fifth District held:

“Upon review, we determine a statement of disqualification for bias, prejudice, or appearance of impartiality cannot be found to be impliedly waived as untimely under section 170.3, subdivision (b)(2). (§ 170.3, subd. (b)(2) [‘There shall be no waiver of disqualification if … [t]he judge has a personal bias or prejudice concerning a party.’].)”

The Court also concluded:

“…commonsense dictates the prohibition on waiver under section 170.3, subdivision (b)(2) must apply to claims of disqualification under section 170.1, subdivision (a)(6)(A)(iii).”

Who decides whether to grant a motion to disqualify a California Family Court judge for bias or prejudice under Code Civ. Proc., § 170.3? Per the court’s opinion:

“‘Once a statement of disqualification has been filed by a party, the judge has four options. The judge may: (1) request any other judge agreed upon by the parties to sit and act; (2) within 10 days, ‘file a consent to disqualification’; (3) within 10 days file ‘a written verified answer admitting or denying any or all of the allegations’; or (4) strike the declaration.’ (PBA, LLC v. KPOD, Ltd., supra, 112 Cal.App.4th at p. 972, fns. omitted.)”

Can the Appellate court disqualify a California Family Court judge from hearing future court proceedings in the case?

The Court of Appeals opined:

“Although we are not compelled to disqualify the trial judge under section 170.3, subdivision (c)(4), the disqualification statutes direct appellate courts to independently determine whether a different judge should hear future proceedings. ‘[O]n its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.’ (§ 170.1, subd. (c).)”

“‘The power of the appellate court to disqualify a judge under .. section 170.1, subdivision (c), should be exercised sparingly, and only if the interests of justice require it.’ (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303.) ‘The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme.’ (Ibid.)”

The California Court of Appeals’ opinion includes a great discussion of the history of the California Code of Civil Procedure disqualification statutes and related issues.