Papering Judges After J.O.: Update your 170.6 software

Jeffrey Lewis Welcome everyone, I am Jeff Lewis.

Tim Kowal And I'm Tim Kowal. Both Jeff and I are certified appellate specialists. And as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast helpful, please recommend it to a colleague.

Jeffrey Lewis And please give us a positive rating on Apple Podcasts wherever you listen to us.

Tim Kowal Well, Jeff, it's been a while since we had some cases in tidbits, and we have a couple today to report. One on a giant sanction, a three million dollar sanction against Quinn Emanuel, and a very interesting case out of the California Supreme Court limiting what used to be an absolute right or seemingly absolute right to file peremptory challenges against judicial officers under 170.6. We'll talk about the JO versus Superior Court case. But Jeff, let's tackle this Quinn Emanuel three million dollar sanction award first. You've got that one.

Jeffrey Lewis Yeah, and I read about this in Above the Law and it has a link to the order. We'll put it in the show notes. This sanctions order is super unusual for the following reasons. One, it doesn't involve AI. This is not an AI case. And second, yeah, the amount is three million dollars—huge amount. I guess maybe for a big firm that's not big, but it makes my eyes pop. And then third, in addition to money, the federal judge here who imposed these sanctions ordered the law firm to design an MCLE course about the ethical issues raised by the sanctions order, and then to have the litigation team involved in this issue take that course that they designed. So you don't see that every day.

Tim Kowal Yeah, an eight-hour legal ethics course. So it's not just a one-hour lunch and learn program. This is a full day program.

Jeffrey Lewis Yeah. But fun fact, you know, when you design an MCLE presentation, you get credit—like extra credit for the designing part as opposed to attending it. So I imagine these lawyers would probably fulfill their MCLE requirement for the year by performing that task alone. Gotta always see the upside, lemonade out of lemons.

Tim Kowal In one fell swoop. So what was the abuse here that triggered this three million dollar sanction—and it was three million dollars in attorney's fees payable to the other side, and then on top of that an additional punitive fine of a hundred thousand dollars. I assume that was payable to the court itself.

Jeffrey Lewis Yeah, and most of that was imposed on the law firm, although some of the lawyers the court deemed most culpable had a portion of liability for that. Look, this was a big pharma advertising case. Expert witness testimony was paramount in this case. There's a battle of the experts, it looks like. And the Quinn Emanuel lawyers had an expert who got early access to some game-changing clinical data from a study that would have changed the outcome of expert reports and the case. And there were several junctures where it became important to know when Quinn's expert got this data and when Quinn disclosed it to the court. Essentially there were several junctures where the Quinn firm made the decision internally: yeah, even though we know now that our expert got this data much earlier than we previously represented, we are not going to correct the record. This sanctions order lays out the timing of this and it raises issues about not just the duty of candor, which I think we all know about, but updating past statements to the judge when there's material, game-changing information that would have changed the outcome of the case. So yeah, big order.

Tim Kowal That is something that I think often goes overlooked—that duty to inform opposing counsel and the court of material past statements that prove to be untrue. So what is the duty? Is it the same—as soon as you learn it, you're supposed to disclose it? Are there any guidelines offered in this order about what the attorneys should have done? I guess that's going to be covered in the eight-hour ethics course.

Jeffrey Lewis Yeah, maybe Quinn Emanuel will make that public. I will say one other interesting thing. I don't know who opposing counsel was in this case, but the opposing counsel was like a dog with a bone—would not let this issue go when they had a suspicion that some data had been obtained by this expert earlier than they thought. And they sent a subpoena to a third party who might have had correspondence relating to this data, and they found a letter that implicated that the expert had obtained the data much earlier. Kind of a side-show issue that this lawyer pursued that became the main show, and good for him—or her—for not letting this issue go.

Tim Kowal Yeah. I mean it's kind of of a piece with our discussion last week with Morgan Pietz about pulling the string. The opposing counsel did not let go and kept pushing on this issue, suspecting that something was missing. Through that determination, they got to the bottom of it.

Jeffrey Lewis Yeah, and I guess the last thing I'll add: the judge didn't really come down so much on the conduct or these omissions, so much as what the judge described as a culture of bad ethics decisions. And that was not limited to just one lawyer. That's what the judge seemed most concerned about, and I think that drove the sanctions.

Tim Kowal Yeah, and that's got a sting to a law firm—to have it appear in a court order that there is not only just a couple of bad actors, this is not only limited to this case, but there is a bad culture in the firm. That's hard to shake. And even just an eight-hour ethics course internally is certainly not going to shed the stigma of being called out for a bad culture of ethics in a federal court opinion.

Jeffrey Lewis Let's talk about peremptory challenges, Tim.

Tim Kowal All right, the case is JO versus Superior Court of San Joaquin County. The decision makes a significant shift in California's approach to blanket judicial disqualification challenges under section 170.6. The Supreme Court stops short of holding that 170.6 is unconstitutional, but it does cabin it. So we'll cover what happened here and what the new rule is going forward. The court partially overruled a longstanding 1977 decision from Solberg. The court holds that while 170.6 remains facially constitutional, blanket challenges or blanket abuses of the statute can now be challenged on separation of powers grounds. So when a party timely objects and makes a prima facie showing that the 170.6 motion constitutes bad faith, then the court may now look beyond the 170.6 affidavit or the oral statement and inquire into the legitimacy of the assertion of prejudice. If the circumstances rise to an inference of bad faith, the court may reject the improperly motivated disqualification motion. This case arose from a conservatorship case. JO is the conservatee—the person under the conservatorship, someone the county had found to be gravely disabled, represented by the public defender. JO is the petitioner. He's the one who objected to the blanket challenges. The challenges were to Judge Erin Guy Castillo. The San Joaquin County Public Conservator is the conservator. What happened is that in May 2024, Judge Guy Castillo admonished one of the deputy county counsel for improper conduct. Shortly thereafter, county counsel began filing 170.6 challenges against Judge Guy Castillo across all her conservatorship cases.

Jeffrey Lewis Yeah, and three hundred peremptory challenges filed in a couple-month period. That's a huge impact on a little county.

Tim Kowal Yeah. So these established a blanket practice aimed at forcing her off the bench because they were being held accountable for their actions. As you said, over less than four months the county counsel's office filed an estimated three hundred and twenty-five challenges against Judge Guy Castillo, such that she was reassigned out of the conservatorship mental health department into misdemeanors, traffic, small claims, unlawful detainers, restraining orders, and expungements. A judge Eagle took over her calendar and in September 2024 denied JO's opposition, citing Solberg, to the effect that 170.6 is quasi-absolute—there's no challenge to it as long as it's timely filed. The Court of Appeal summarily denied a writ, and the Supreme Court granted review and has now remanded. So if anyone has gotten one of those postcard writ denials and is wondering if there's ever any hope in filing a petition for review, here's the exception that proves the rule. Just by way of background, here's the evolution of the 170.6 statute. Almost 100 years ago, the operative statute was 170.5, which the Supreme Court struck down in Austin versus Lambert as an unconstitutional concealed weapon against the judicial branch. In 1958, in Johnson versus Superior Court, the court upheld the new 170.6 statute against facial constitutional challenge, noting that its safeguards prevented it from being struck down. Those safeguards were the affidavit requiring a statement of grounds, one challenge per side, and tightly constrained time limits. Then in 1977, 170.6 was challenged again and upheld in Solberg versus Superior Court. It reaffirmed strong disapproval of blanket challenges, but the court said they were merely a 'relatively inconsequential price' for section 170.6 efficiency and did not substantially impair judicial functions under then-existing conditions. The majority noted that blanket challengers could force judges from assignments, but found that did not violate separation of powers yet. Now that's changed—almost 50 years later in JO versus Superior Court. The court noted a sharp increase in case loads and case complexity, sweeping new laws requiring specialized judicial expertise, the rise of specialty courts and proceedings, and dedicated judge assignments to specialized calendars. The implication is that in this 21st-century environment, blanket challenges are far more pernicious than they were in 1977. Now in 2026 they do substantially impair judicial operations because they force judges from specialized assignments, effectively control which judges hear certain types of cases, create pressures on judges to rule favorably to avoid removal, and undermine public confidence in judicial impartiality. The court also noted that after 1977, Minnesota, Arizona, and Illinois have all prohibited blanket abuses of similar judicial disqualification statutes as threats to judicial independence. So, Jeff, the new procedure—which trial counsel will want to note carefully—is as follows. Step one: after you make your timely objection, the opponent of the 170.6 must do two things together. They have to timely object and demonstrate a prima facie case that the proponent is lodging a bad faith challenge. Normally it's going to be a blanket challenge—part of a pattern of successive challenges against a particular judge. The objection is necessary but not sufficient, because if the objector makes no prima facie showing, then the 170.6 must be granted without further inquiry. There is still a quasi-absolute right to make the challenge absent a timely objection and prima facie showing.

Jeffrey Lewis Yeah, well the devil's in the details in terms of how courts are going to apply this—what is a blanket objection versus a case-specific or particularized basis for using a peremptory. Back in the day in Orange County there was that jailhouse snitch scandal where Judge Goethals made some rulings that the DA's office didn't like, and they issued a bunch of peremptory challenges to every case he was handling. Shortly thereafter he got elevated to the Court of Appeal. That kind of situation is clearly a blanket assertion. And the one in this case with county counsel doing 300 assertions in a two- or three-month period—that's a blanket use of the process. But what I wonder is: what if you have a less clear case? Let's say the Consumer Attorneys Association of Los Angeles thinks one particular judge is too pro-defendant, and they decide they're just going to paper that judge in all their cases. That's not the same party every time papering a judge, but it's a group of people trying to influence how the Superior Court staffs its departments. I wonder if this new decision has opened the door a little bit—such that something less than a blanket use of peremptory challenges can be challenged on an individual basis.

Tim Kowal Yeah, these are good questions. Some of this might be encompassed in the step two move here: after the objector makes a timely prima facie challenge to the 170.6 as not being lodged in true good faith, a hearing will be held as soon as possible before a judge other than the judge named in the motion. At that point, the burden shifts to the proponent—the one who filed the 170.6 affidavit—to give a genuine case-specific basis for believing that the challenged judge is personally prejudiced against this party in this case. Now, I'm a little dubious about this, or at least confused, because you've got to file this 170.6 early in the case when the judge is first assigned for all purposes. How are you supposed to have a case-specific basis when you're only days into the case? You would have to have some kind of background about the judge that is specific to the facts of this case, rather than just your past bad experiences with this judge in your other cases. Is that no longer grounds for a good-faith 170.6 challenge?

Jeffrey Lewis Right.

Tim Kowal But you have to make that genuine case-specific basis of personal prejudice against the party or the attorney in this case—that's the moment the court may now look behind the section 170.6 affidavit. The proponent need not prove actual prejudice. It's just a good-faith belief or good-faith basis for prejudice. But the proponent still must offer a clear and reasonably specific explanation of legitimate reasons. The inquiry is whether those reasons are subjectively genuine. So it's not an objective standard—it just has to be subjective good faith. But still, you have to make some kind of showing about things specific to this case and not just generalize: well, I've gotten a bum deal every time I've appeared in front of this judge in the past, so I'm not taking my chances again. Presumably that would not cut it under this new standard. Do you think, Jeff?

Jeffrey Lewis No, and by the way, how many lawyers would be willing to put it out there—after there's pushback on a peremptory—to put something in writing justifying why they did it, knowing there's a good chance they're going to be stuck with this judge who has just read what they put in that peremptory? I'm not excited about that process.

Tim Kowal Yeah, there's going to be a huge chilling effect now. Presumably because the pattern out of which this new rule arises is a huge, almost inarguable one—325 peremptory challenges within four months by a single office.

Jeffrey Lewis And in every case this judge was assigned to by county counsel. But what if it's just the conservatorship cases or just the real estate cases? Is that a blanket use? I don't know.

Tim Kowal Yeah, that's right. If you are a probate specialist firm doing all your work in the probate department, or a family law firm doing all your work in the family department, and your whole firm is making challenges as to a certain judge, this pattern-type analysis can apply to you. You don't have to be a government office. And certainly if you come back and tell all the other attorneys at your firm, 'We need to always ding Judge Smith—you won't believe what Judge Smith just did in one of our cases, we can never trust Judge Smith again, so always have your punch card ready if you ever get Judge Smith assigned'—beware. You can get objected to if you start establishing that pattern. Then step three: the inquiry judge determines the genuineness of the challenge. If bad faith is found, the 170.6 is denied and the case stays with the challenged judge. As you pointed out, Jeff, that's the worst of all scenarios—you've already got a judge you thought didn't like you, and now you've removed all doubt. If good faith is found, the motion is granted as per usual before the JO case, and the case is reassigned to a new judge. The ultimate burden of persuasion rests on the objector—the same allocation as Batson. So the objector both triggers the objection process with the prima facie showing and ultimately must persuade a different judge of the bad faith of the challenge. The proponent's job in the middle is only to come forward with some genuine explanation. So it's conceivably a minimal burden. I don't know—do you have any predictions, Jeff, on what the showing is going to be by the county counsel's office in this case? Because it is sent back down—not to simply reject the 170.6, but to conduct this inquiry.

Jeffrey Lewis Yeah. And the court said it's not moot, because you can basically unwind it—reject the initial peremptory. So this was still a live controversy in terms of this particular conservatorship case. I don't have any predictions on this particular case, but I predict rampant abuse by people looking to keep a judge they like, raising some sort of suggestion that the 170.6 in their case should trigger this blanket inquiry. That's my prediction.

Tim Kowal I would be very interested to know more of the backstory about why Judge Guy Castillo was dinged 325 times. Based on what the opinion reveals, she had admonished one of the attorneys at county counsel's office for certain litigation practices. But that couldn't have been the only thing that set off the entire county counsel's office to go on this 325-challenge tirade. I'd be curious what the background is, because it certainly had the effect in a small court of removing probably the only judge they would deal with in that department. And I wonder how things will go the other way now. In small counties where there is only one judge on your particular panel, if you ding that judge, you get moved over to another county. But what happens now that things might tilt back the other way, and litigants are faced with a single judge who may have a disposition against their general point of view? Or maybe you're a plaintiff's attorney and the single judge was a defense attorney before elevation to the bench. Now you have to face that judge every single time unless you can marshal a case-specific grounds for the challenge. That can be tough for small-town attorneys.

Jeffrey Lewis Yeah, absolutely. No question about it.

Tim Kowal We can follow up on this case. There have been some law review articles cited in the decision that I didn't fully absorb yet, but it was interesting that there has been substantial study about alleged abuse of these categorical peremptory challenges. And as we mentioned, some other states have already found that they violate separation of powers.

Jeffrey Lewis Now that you've thoroughly researched and resolved the court reporters crisis and the history of that legislation, this is a new project for your research.

Tim Kowal I also thought, Jeff—just one other thing I haven't resolved in my mind—whenever the court starts talking about separation of powers, it makes me think about the issue we started discussing some months ago about how in California there is no judicial standing doctrine. It's purely a creature of statute, whereas in federal court it is a judicial threshold doctrine. And it got me thinking: if the California court system does not recognize that its judicial power includes any threshold doctrine—that it doesn't look into standing beyond just what the legislature has said—why doesn't the California judicial power doctrine also yield to whatever the legislature says about judicial management or housekeeping? Because in this JO case, the California Supreme Court is being very bullish: no, the judicial power absolutely includes the ability to do housekeeping and manage which judges are assigned to what departments, and we are not going to let the legislature dictate in absolute terms which of our officers can be removed from a case. I just found a little incongruity there—that the California concept of judicial power cedes the threshold question about who gets access via the standing doctrine, making that a legislative determination, but judicial housekeeping and staffing are very jealously guarded under our California judicial power doctrine. Again, I had no upshot of that; it was just an observation.

Jeffrey Lewis I look forward to seeing your research project results in a coming episode.

Tim Kowal All right, just by way of bringing me down from that soapbox—one unpublished case, just for hygiene, because we used to enjoy covering so many unpublished cases, Jeff. Voice of San Diego versus San Diego Unified School District. This is a Public Records Act request case where the Voice of San Diego had made numerous Public Records Act requests to the San Diego School District over a span of time. Its grievance was that the district was not timely responding. Over a five-year period involving a large number of requests, the average time the district took to respond was 399 days—where the statute requires that records must be made 'promptly available.' But the court rejected the challenge. The trial court rejected it, and so did the Court of Appeal. I was curious to read on to figure out why, because that seemed pretty grating. It looks like maybe the Voice had cherry-picked some of the data to get up to that 399-day average. There were only 31 of the district's 75 requests counted, and it only counted the last production date while ignoring the first tranche. The court gave two devastating examples. First, a request the Voice billed as over 1,900 days was actually 78 days from the parties' agreement on search terms. Another 1,267-day request was in reality completed in 24 days, with the long tail coming from a date three and a half years later when the district voluntarily turned over 26 pages an employee found in an unoccupied desk drawer. So some of these numbers were stretched beyond credulity.

Jeffrey Lewis And let me take the county or city's side for a second. The federal public records law requires you to pay the federal government for their time when a request requires agents to scurry around looking for documents. State law is different. All you have to pay for is basically the cost of reproduction—copies or CD-ROM—but not the time it takes people to run around. Because of that, local agencies, cities, counties, and school boards are buried in Public Records Act requests looking for minutia. I have seen over time the length of time these jurisdictions take to respond has increased. They give themselves extensions, which they can by statute, because they're just buried, and there's no disincentive to members of the public—those people who come and speak for three minutes at city council meetings on any topic they want—not to send a million Public Records Act requests. So give your local city council a break, Tim.

Tim Kowal The court also noted that under section 7922.530, records must be 'promptly available' but there is no real definition of what 'promptly available' means. The court reasoned that the legislature knows how to write a deadline if it wanted to, but chose not to here. So we're left to the substantial evidence standard of review on factual questions and abuse of discretion. I think if the Voice was using this as a case to find an outer limit—someplace where the Court of Appeal could step in as a matter of law and say over a year is just far too long—maybe this just wasn't the right record on which to do that. In the appropriate case, if the numbers truly bore out, maybe we could find some common ground that yeah, an average over a year is probably an abuse of discretion to call 'prompt.' But this was not the record for that.

Jeffrey Lewis If you want to find a case to challenge a local jurisdiction on that, it's not the averages that matter. You find one case where you send a Public Records Act request asking for one page of one document you know exists, and you wait for the county to take six months, nine months, a year to respond. That's the case you take to court on a challenge—not relying on lies, damn lies, and statistics.

Tim Kowal Yeah, I think there was a little bit of a creative strategy here—it was under a taxpayer illegal expenditure of public funds theory, and the Voice was seeking to enjoin the district's allegedly unlawful public records practice. But the court did not find an unlawful practice or a policy of withholding. That's why they were not taking your advice, Jeff, and just finding one single improper denial. They were going for a whole practice so they could get a big preliminary or permanent injunction. Okay, well that's all I got, Jeff.

Jeffrey Lewis I think that wraps it up.

Tim Kowal All right, if you have suggestions for future episodes, please email us at info@calpodcast.com. In upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis See you next time.