On appeal, can you argue that a trial judge was biased based on a series of rulings against your client? Not without evidence. In a case that flew under the radar this summer, the California Court of Appeal published “a warning to those who appear before the appellate bench[:] . . . Members of the bar may not spew allegations of judicial bias merely because they disagree with a ruling[ or] expect courts of appeal to allow such baseless outbursts.” A Co. Hungary KFT v. Bespalov, 122 Cal. App. 5th 341, 343 (2026). Indeed, “[c]hallenges to the integrity of the hard-working, dedicated trial judges of this state must be based on evidence in the record, not the personal frustration of counsel or parties.” Id.
The proceedings in Bespalov
In Bespalov, the Court of Appeal imposed a $1,000 sanction on an attorney who “repeatedly and baselessly impugned the integrity of the trial court” in his appellate brief and then “offered meritless defenses for his conduct in response to [the Court of Appeal’s] order to show cause.” Id. at 347. The attorney’s brief made 26 inflammatory statements charging the trial court with bias in its rulings against his clients. Id. at 343-44. His reply brief likewise “maintain[ed] the drumbeat of insults.” Id. at 344. The Court deemed the “vitriol” “memorable, in all the wrong ways,” and issued an order to show cause so the attorney “might explain why he should not be held in contempt for attacking the integrity of the court in a court document or sanctioned for making allegations of bias without support.” Id.
The attorney’s written and oral responses, which “lacked awareness of the nature and severity of his offenses,” failed to mitigate the Court’s concern. Id. Although he apologized, he “undercut his initial apology” by recharacterizing his statements as inferences grounded in his “good-faith interpretation of documented record facts.” Id. at 344-45. The Court deemed that “not sufficient as either defense, explanation, or apology.” Id. at 345. Most importantly, it emphasized that, because there was no record evidence supporting allegations that the trial court was biased, the attorney appeared to be inappropriately “infer[ring] bias simply from an adverse ruling.” Id. Oral argument confirmed that conclusion. Only after the Court asked the attorney three times did he “admit[] there was no evidence in the record to support his claims of bias.” Id. at 346.
The attorney’s conduct violated his duties “to maintain the respect due to the courts of justice and judicial officers,” “to conduct [himself] at all times with dignity, courtesy, and integrity,” and to “certify that the claims contained [in filings] have evidentiary support.” Id. at 347 (citations omitted). Thus, the Court of Appeal found the attorney in contempt of both the trial and appellate courts, warranting the sanction. Id.
Takeaways for trial counsel
Argue error, not motive. Focus on the substantive or procedural deficiencies of a trial court’s ruling, not the existence of the ruling itself or an inferred motive for the ruling. As the Court explained in Bespalov: “Counsel are obviously free to disagree with a ruling, and they are encouraged to explain in an appellate brief, with vim and vigor, why that ruling is wrong. But counsel must not assume an unfavorable ruling means a biased court, much less make that assumption a central part of their appeal.” Id. at 346 (citation omitted).
Use the disqualification process and seek writ review. If you believe that a trial judge is biased, use the disqualification process and, if necessary, seek writ review promptly. A party alleging disqualification must write a “verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification.” CCP § 170.3(c)(1). File the statemewnt with the clerk “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification” and serve copies on each party, as well as on the judge at issue (or the judge’s clerk if the judge is “present in the courthouse or in chambers”). Id. If the judge is not disqualified, the party may obtain further review only by seeking a writ of mandate from the appropriate court of appeal within 10 days after service of the written notice of entry of the order resolving the disqualification issue. Id. § 170.3(d). The Court in Bespalov did “not fault” the attorney’s clients “for exercising their right to seek the judge’s disqualification” through that process. 122 Cal. App. 5th at 345 n.2.
Present evidence of bias. If you lose the disqualification issue and want to raise the issue on appeal, be prepared to both (i) cite record evidence supporting allegations of bias and (ii) explain why the issue remains despite having pursued the writ process. Although the Court in Bespalov noted that the California Supreme Court’s denial of the writ under CCP § 170.3(d) “finally resolved” the question of the trial judge’s bias, the Court nonetheless offered the attorney on appeal “a chance to explain why the issue of bias had resurfaced, despite that resolution.” 122 Cal. App. 5th at 345 n.2. The attorney “did not take that chance.” Id.
We can help. If you are weighing whether and how to raise a concern about a judge’s conduct on appeal, we can review the record and develop a strategy for doing so without drawing judicial ire. Contact us if you’d like to discuss.
