Johnson v. Superior Court

The sole question to be decided in this proceeding is the constitutionality of section 170.6 of the Code of Civil Procedure, which is set forth in full as an appendix to this opinion. This section, enacted in 1957, provides in substance that no judge of a superior, municipal or justice court shall try any civil action or special proceeding when it is established, in the manner set forth in the section, that he is prejudiced against a party or attorney appearing in the action. It further provides that prejudice may be established by an affidavit that the judge is prejudiced against the party or attorney so that the party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge. A party or attorney is not permitted to make more than one such challenge in any one action or special proceeding.

Petitioners are plaintiffs in a malpractice action pending in the Superior Court of Los Angeles County. Upon assignment of the case to Judge A. A. Scott for trial, petitioners moved to disqualify him and filed an affidavit of prejudice pursuant to section 170.6. The motion was heard and denied by Presiding Judge Roy L. Herndon. In this proceeding…