2 Cal. App. 5th 10
Cal. Ct. App.2016Background
- Parties (Tracy Hayward and Jose Osuch) stipulated to appoint attorney Nancy Perkovich as a temporary (private) judge under Cal. Const. art. VI, § 21; stipulation filed April 2012. Perkovich was required by rule 2.831(d) and Canon 6D(5)(a) to disclose, in writing or on the record, professional relationships with counsel.
- Perkovich presided over settlement conferences and hearings from Oct. 2012 through late 2013; many of her rulings favored Jose (including orders on spousal support, fees, and restraints on corporate distributions).
- Tracy later alleged Perkovich failed to disclose in writing or on the record a mutual “private-judge” relationship with opposing counsel (Blevans), and that Perkovich demonstrated bias in court. Tracy filed a statement of disqualification in Oct. 2014.
- Perkovich did not file a verified answer or a consent to disqualification as prescribed by CCP § 170.3(c)(3); she sent a letter to the presiding judge requesting recusal for unrelated safety/fear reasons. The presiding judge deemed her to have consented to disqualification and disqualified her effective the date of Tracy’s filing.
- After reassignment, Judge Price reopened discovery and issued discovery-related rulings and sanctions. Tracy sought writ relief contesting (inter alia) whether Perkovich’s prior rulings were void and whether the parties’ January 2014 settlement (MOA) could be enforced under CCP § 664.6.
- The appellate panel stayed trial-court proceedings and concluded (1) Perkovich’s orders were void and must be vacated; (2) the MOA was tainted by the void rulings and unenforceable under § 664.6; and (3) Judge Price’s rulings were not sufficiently tainted to require vacatur.
Issues
| Issue | Plaintiff's Argument (Hayward) | Defendant's Argument (Osuch / Perkovich) | Held |
|---|---|---|---|
| Whether a challenged temporary judge’s failure to file a verified answer or consent under CCP § 170.3(c) means the facts in the statement of disqualification are taken as true and the judge is deemed disqualified | Failure to answer/consent should be treated as admission of the statement’s allegations; therefore judge is disqualified | Deemed-consent does not equate to admission of factual truth; parties should be allowed to contest underlying facts | Held: Where the challenged judge neither filed the statutorily required consent nor a verified answer, the allegations in the statement of disqualification are taken as true and the judge is deemed disqualified (judge properly deemed to have consented) |
| Whether orders and rulings by a disqualified temporary judge (here occurring after the facts creating disqualification arose) are void or voidable and must be vacated | Orders issued by a judge who was disqualified at the time of acting are void and must be vacated | The orders should remain unless replacement judge finds good cause to set them aside under § 170.3(b)(4); some precedent treats such acts as voidable | Held: The orders of disqualified Temporary Judge Perkovich were void when made and must be vacated (court relied on Christie, Rossco and similar authorities) |
| Whether a settlement agreement (MOA) executed after repeated void rulings by the disqualified temporary judge may be enforced under CCP § 664.6 | The MOA was tainted by the void rulings that induced it (caused duress or materially influenced settlement posture) and thus cannot be enforced | Enforceability of the MOA is a factual question for the trial court (duress and causation must be proved) | Held: As a matter of law the MOA was tainted by the void rulings and may not be enforced under § 664.6 — remanded to address practical consequences of vacatur |
| Whether the successor judge’s discovery orders and sanctions (Judge Price) were tainted by the prior judge such that they must be vacated | Successor’s rulings were infected by the prior void acts and should be vacated | Successor judge is presumed able to disregard improper prior materials; no showing that those materials actually determined her rulings | Held: Judge Price’s rulings were not shown to be tainted to the degree requiring vacatur; her discovery and sanctions orders remain subject to ordinary review (but many discovery matters were stayed pending appeal) |
Key Cases Cited
- Christie v. City of El Centro, 135 Cal.App.4th 767 (Cal. Ct. App.) (acts of a disqualified judge are generally void; disqualification occurs when the facts creating it arise)
- Rossco Holdings, Inc. v. Bank of America, 149 Cal.App.4th 1353 (Cal. Ct. App.) (void order by disqualified judge; subsequent proceedings stand only if untainted—taint is the inquiry)
- Urias v. Harris Farms, Inc., 234 Cal.App.3d 415 (Cal. Ct. App.) (where judge files no answer to statement of disqualification, the facts in the statement are taken as true)
- Calhoun v. Superior Court, 51 Cal.2d 257 (Cal. 1958) (failure to file a verified answer requires taking the statement’s facts as true)
- Aguilar & Sebastinelli v. A.I. Credit Corp., 113 Cal.App.4th 1072 (Cal. Ct. App.) (attorneys who violate ethical obligations may be denied fees)
- Howard v. Drapkin, 222 Cal.App.3d 843 (Cal. Ct. App.) (doctrine re quasi‑judicial immunity discussed in context of nonparty claims for money against a neutral)
- Cadenasso v. Bank of Italy, 214 Cal. 562 (Cal. 1932) (authority cited for principle that void acts must be set aside)