Key Points

  • The Third District directed the San Joaquin County Superior Court to vacate its Aug. 12, 2024, order granting County Counsel's section 170.6 motion to disqualify Judge Erin Guy Castillo from J.O.'s conservatorship case.
  • The trial court must hold a hearing under the three-step burden-shifting procedure set out in J.O. v. Superior Court (2026) 19 Cal.5th 753, at pages 782-785, to decide whether the motion was part of a bad-faith blanket policy.
  • The court rejected County Counsel's mootness argument because the conservatorship remains active and the disqualification order remains in effect, and said it would reach the merits anyway because the issue is of broad public interest and likely to recur.
  • Because County Counsel answered the order to show cause with an unverified brief rather than a return by demurrer or verified answer, the court treated the filing as a demurrer accepting the petition's verified allegations as true.
  • Costs were denied in the interests of justice.

A California appeals court on Nov. 9 ordered a San Joaquin County trial court to decide whether county lawyers acted in bad faith when they moved to remove a judge from a conservatorship case, one of an estimated 325 such motions they filed against her in less than four months.

The Third District Court of Appeal granted a petition by J.O., a man who has been under a conservatorship since 2016. It issued a writ directing the San Joaquin County Superior Court to vacate its Aug. 12, 2024, order removing Judge Erin Guy Castillo from his case. Presiding Justice Earl wrote for the unanimous panel, joined by Justices Krause and Boulware Eurie.

The decision applies a procedure the California Supreme Court created in the same case, J.O. v. Superior Court, when it held that blanket use of a state judicial-disqualification statute can violate the separation of powers. On remand, J.O. will have his first chance to show that the county's challenges were part of a bad-faith campaign, and the county may have to justify its motion before a different judge.

The statute, Code of Civil Procedure section 170.6, lets any party or lawyer force a judge off a case by stating under oath that the judge is "prejudiced" against them or their interests.

According to the facts alleged in J.O.'s petition, Guy Castillo was assigned in December 2023 to the department of the San Joaquin County Superior Court that heard most mental health cases. Beginning in May 2024, the Office of the County Counsel, which represented the San Joaquin County Public Conservator, began filing blanket section 170.6 motions against her.

On July 10, 2024, County Counsel petitioned for the Public Conservator to remain J.O.'s conservator for another year and filed a section 170.6 motion the same day. Guy Castillo denied that motion as premature. J.O. then petitioned to remove the Public Conservator and to have his sister appointed in its place. On Aug. 9, County Counsel filed another section 170.6 motion, which was granted.

J.O. opposed the motion. His opposition asserted that the county's blanket challenges began after Guy Castillo admonished an attorney from County Counsel's office for improper conduct, and that the office appeared intent on forcing her out of her assignment. She was reassigned to another department later that month.

The trial court overruled J.O.'s objection under Solberg v. Superior Court, a 1977 state Supreme Court decision holding that blanket section 170.6 challenges did not unconstitutionally interfere with the core functions of the judicial branch. A different Third District panel summarily denied J.O.'s writ petition.

The Supreme Court then overruled Solberg in part. It held that blanket section 170.6 challenges may unconstitutionally interfere with court administration by "permitting a party to unilaterally decide, for improper reasons, that a judge cannot oversee all or a substantial portion of cases … to which he or she is assigned." It sent the case back to the Third District to consider whether further proceedings were needed.

The high court's procedure has three steps. First, the party opposing the motion must timely object and show "that the totality of the relevant facts gives rise to an inference of [a bad faith blanket policy]." If it does, a judge other than the one challenged holds a hearing at which the party seeking removal must show subjectively genuine reasons for believing the judge is prejudiced. Finally, the court decides: a bad-faith motion is denied and the case stays with the judge, while a good-faith motion is granted.

On remand, County Counsel argued the case was moot because the Public Conservator was no longer a party after the trial court appointed a successor in September 2024, and because Guy Castillo was no longer a judge of the San Joaquin County Superior Court.

The panel disagreed. Earl wrote that J.O.'s conservatorship remains active and that the disqualification order still bars Guy Castillo from presiding over it. Vacating the order, the court said, would allow her reassignment to the case "should she return to the San Joaquin County Superior Court at the conclusion of her tenure as a federal magistrate judge, however remote that possibility is." A ruling would also clarify whether J.O.'s conservator could file another section 170.6 motion later.

Even if the case were moot, the court said, it would reach the merits because the issue is of broad public interest and likely to recur. County Counsel acts as legal counsel for the county and all county officers, Earl wrote, and whether it engaged in "a months-long strategic campaign to repeatedly disqualify a sitting judge for the bad faith purpose of forcing her reassignment" matters to the broader public.

The panel also pointed to County Counsel's continued insistence that its motions were made in good faith. The office had moved for sanctions against the public defender's office for opposing the motion, calling the objection "simply a baseless attempt at harassing the San Joaquin County Public Conservator for exercising his rights under the law."

The court also faulted County Counsel's handling of the writ proceeding. Answering an order to show cause, the office filed an unverified brief labeled a "response" instead of a return by demurrer or verified answer. Quoting earlier precedent, Earl wrote that a proper return "is not a technicality, but is an integral and critical step in the procedure for determining the merit of a petition for extraordinary relief." The court treated the filing as a demurrer, which accepts the petition's verified allegations as true.

The panel acknowledged that the trial court's order "was legally correct at the time it was made." J.O. conceded in his traverse that he had never alleged bad faith, arguing instead that blanket challenges were always unconstitutional. As a result, the court wrote, no court has yet determined whether he can make the initial showing the Supreme Court now requires.

J.O. was represented by San Joaquin County Public Defender Judyanne D. Vallado. Chief Deputy County Counsel Jonathan N. King of the San Joaquin County Office of the County Counsel represented the Public Conservator.

The writ directs the superior court to vacate the August 2024 order and hold a hearing under the Supreme Court's three-step procedure to determine whether County Counsel's motion was made in bad faith. The panel denied costs in the interests of justice.