CCP 170.6: Judicial Disqualification And People v. Superior Court (Broadway)

General Rule For CCP 170.6

“Section 170.6, subdivision (a)(1) states:
A judge, court commissioner, or referee of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character, nor hear any matter therein that involves a contested issue of law or fact, when it is established, as provided in this section, that the judge or commissioner is prejudiced against a party or attorney or against the interest of a party or attorney appearing in the action or proceeding.”

How Can A Party Establish Or Express Prejudice?

According to 170.6(a)(2):
“Prejudice is established, for purposes of section 170.6, by a motion supported by an affidavit or declaration under penalty of perjury, or an oral statement under oath that the assigned judge is prejudiced against a party or attorney… so that the party or attorney cannot, or believes that they cannot, have a fair and impartial trial or hearing before that judge.”

What Happens Once Prejudice Is Expressed?

According to 170.6(a)(4):
“Whenever the motion is duly presented, and the affidavit or declaration under penalty of perjury is duly presented, or an oral statement under oath is duly made, then, and without any further act or proof, a different judge must be assigned to try the cause or hear the matter.”

• When a party complies with the requirements of section 170.6, disqualification of the judge is mandatory.

• There is no requirement to prove facts showing actual prejudice.

• Disqualification is automatic, based solely on the party’s good-faith belief that prejudice exists.

The Case: People v. Superior Court (Broadway)

Recently, in People v. Superior Court (Broadway), cited as 2025 Cal. App. LEXIS 436, the People filed a motion under 170.6 against Judge Cynthia Davis.

Judge Davis was the sole judge assigned to the San Diego County Behavioral Health Court, a collaborative court offering defendants with severe mental illness the opportunity to receive treatment under formally supervised probation.

How Behavioral Health Court Functions

• Unlike other diversion programs (e.g., California Penal Code §1001.36 for mental health diversion), the Behavioral Health Court was not created by statute.

• Instead, it was formed by agreement among stakeholders to address mental health in the criminal justice system.

• Because of this, it has no governing statutes.

Referrals To The Court

• Defendants may be referred after conviction or a guilty plea, but before sentencing.

• Referrals may be part of a plea agreement with the prosecutor.

• Even without a plea deal, the court can still refer cases over the prosecutor’s objection.

The Legal Issue In Broadway

The central issue: Do Behavioral Health Court proceedings constitute a trial or hearing involving issues of fact or law (or an all-purpose assignment) that triggers CCP 170.6?

• The People filed a 170.6 motion against Judge Davis.

• Judge Davis denied it, ruling Behavioral Health Court proceedings do not involve contested factual or legal issues.

• The Court of Appeal disagreed and issued writs ordering the trial court to grant the People’s peremptory challenges.