With Friends Like These ....

Bassett Unified School District v. Superior Court, No. B323528 (D2d5 Mar. 14, 2023).

Judge A is presiding over a employment retaliation case. The Plaintiff's lawyers are from a firm in which Judge B was once a partner. Judge B casually notes this fact to Judge A. Judge B then shows up in court a few times to greet the attorneys. He sits in on voir dire until Judge A notices him in the gallery and has the clerk pass a note asking him to leave. A some point, Judge A makes an evidentiary ruling that is viewed as favorable to the Plaintiff.

Plaintiff wins a $25 million verdict. When Judge B hears about it, he texts Judge A: $25 Million!! with a couple of fireworks emojis. Judge A asks Judge B not to communicate about the case anymore. Judge A, being diligent, discloses this ex parte communication to the parties, and explains her interactions with Judge B over the course of the trial. Defendant moves to DQ Judge A, arguing that the evidentiary ruling was tainted by bias. The judge assigned to hear the DQ under Code of Civil Procedure § 170.3 denies it. Defendant takes a writ.

The Court of Appeal finds no basis for recusal. Judge B seems pretty biased. But there’s nothing that merits imputing that bias to Judge A. Judge A took all the appropriate steps to avoid the appearance of bias, including by candidly disclosing all of the potentially problematic interactions.

Writ denied.

Coram Vobis

Chaganti v. Superior Court, No. H048373 (D6 Dec. 27, 2021)

This one’s unusual. The underlying case is a real estate dispute between a plaintiff/landlord—who is pro se—and a defendant/tenant, which appears to be a cellphone store owned by a subsidiary of AT&T. The trial court granted AT&T summary adjudication of two claims on statute of limitations grounds. Two other claims were tried to a jury, resulting in a defense verdict. That judgment is on appeal.

While that appeal was pending, however, the trial judge who granted summary adjudication filed a disclosure that he owned stock in AT&T worth between $10,000 and $100,000. (The judge did not make the disclosure in prior years because he previously owned Time Warner stock that was exchanged with AT&T stock in a merger that closed before the summary adjudication ruling.) Plaintiff discovered the disclosure and tried to bring that to the court’s attention through several procedural avenues. He ultimately filed an original petition for a writ of coram vobis with the Court of Appeal, which the Court grants.

Coram nobis and coram vobis are old school common law writs that are used to attack a final judgment for reasons unrelated to the merits of the action—most often for extrinsic fraud. When filed in trial court, the writ is called coram nobis; when filed in an appellate court, coram vobis. Although primarily used as a means of collateral attack in criminal cases, both writs are available in civil cases as well. But civil coram nobis and vobis are extremely rare. 

To obtain either writ, the petitioner must establish: (1) the existence of some fact that would have prevented the entry of judgment on the merits; (2) that does not go to the merits of the underlying case on any issue that was actually tried; and (3) that the petitioner could not have discovered the facts at some earlier time in the exercise of diligence. The case law also requires a lack of other remedies—if the issue could have been raised in the trial court—like on a new trial motion or motion to reconsider—or on a direct appeal, relief by writ is not appropriate.

The Court finds each element satisfied. Any act by a judge who was subject to mandatory disqualification is void. Code of Civil Procedure § 170.1(3)(A) requires a judge to disqualify when he or she “has a financial interest in the subject matter in a proceeding or in a party to the proceeding.” Section 170.5(b) defines “financial interest” as a legal or equitable ownership of 1 percent in a party or an interest valued at $1,500 or more. There is some question about whether the judge’s interest in the public AT&T corporation counts as an interest in the AT&T subsidiary that is the defendant in the case. The argument rests on a 90-year old Supreme Court case holding a judge’s having money on deposit at a parent corporation didn’t count as an interest in a subsidiary party. But that case was decided under a different statute with different language and given the purpose of the rule—avoiding the appearance of impropriety—the court finds that the trial judge was financially interested.

So far as the other elements go, a trial judge’s conflict of interest doesn’t go to the merits. The information could not have been found earlier because the first disclosure was the one Plaintiff discovered. Finally, Plaintiff had no other avenue for relief. The trial court lost jurisdiction when Plaintiff filed his notice of appeal, and the issue couldn’t be addressed in the pending appeal because the disclosure was not in the trial record.

Writ granted. Trial court ordered to vacate the summary adjudication ruling as well as the final judgement it was baked into.

Who Killed the Samurai?

Hayward v. Superior Court, No. A144823 (D1d2 Aug. 3, 2016)

This case—a contentious divorce—is pretty ugly. The parties stipulated to have the case resolved by a private judge, appointed by the family court as a Pro Tem. But things go downhill from there.

By the Power Vested in Me by the State of California, I Pronouce You Not Disqualified

Wechsler v. Superior Court, No. D064919 (D4d1 Mar. 3, 2014)

A court commissioner presiding over post-judgment proceedings in a divorce case agreed to preside at the wedding of the wife’s lawyer while the matter was pending. Husband moved to disqualify the commissioner under Code of Civil Procedure § 170.1(a)(6)(A)(iii), which requires disqualification of a judicial officer when “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Under the court’s procedures, the motion was referred to a superior court judge, who denied the motion. Husband took a writ. 

Relying on a death penalty case addressing a similar judge/wedding issue— People v. Carter, 36 Cal. 4th 1215, 1240–1244 (2005)—the court holds that a judge’s officiating at the wedding of a lawyer does not, in itself, merit recusal under the appearance of bias standard. Judges perform a public function in presiding over weddings, and an objective lay observer would not necessarily conclude that the judge was biased based on the judge’s role in solemnizing the ceremony, particularly when, as here, there was record evidence that the judge and the attorney did not otherwise have a close personal or social relationship. Although there could be facts that would merit a different result—such as evidence of actual close personal ties between lawyer and judge, the judge’s acceptance a gratuity, or his or her attending the wedding reception—these were not present in this case. So a reasonable observer would not find an appearance of bias based on the officiating alone. The court goes on to note, however, (in dicta) that presiding at an appearing attorney’s wedding presents enough potential for an appearance of impropriety that the judicial canons require the judge to disclose the fact. But that did not merit recusal in this case because it was clear that husband’s attorney knew.

Writ denied.