91 Cal.App.5th 948
Cal. Ct. App.2023Background:
- Plaintiff Carolyn Cortina brought a class action (wage-and-hour claims) against North American Title Company; liability was determined for the exempt class after a bench trial and a referee calculated individual restitution; judgment (~$43.5M) entered Aug 31, 2022.
- Between 2018–2021 corporate restructuring resulted in name changes: the original North American Title name was transferred to a different corporate entity (later Doma Title), while the defendant corporation ultimately became Lennar Title.
- After discovery into the post-trial transactions, the trial judge repeatedly characterized defendants’ conduct as a “name change shell game,” “three-card monte,” and accused them of “trickery” to evade payment — remarks made before any judgment (at the time of some remarks no judgment had yet been entered) and with no adjudication of alter-ego, successor, or fraudulent-transfer liability.
- Doma Title filed a peremptory challenge and a verified statement to disqualify the judge; appellate proceedings about Doma Title’s challenge and service issues produced stays and rulings (including a writ finding no jurisdiction over Doma until served); Doma was later dismissed without prejudice.
- Lennar Title filed its own verified statement of disqualification (Aug 18, 2022) relying on the judge’s remarks; the trial judge struck Lennar Title’s statement as untimely, successive (because Doma previously challenged), and legally insufficient.
- The Court of Appeal granted writ relief: it held the judge lacked authority to strike the statement as untimely where the alleged ground was bias/appearance of bias (unwaivable), found the statement facially sufficient and not a barred successive filing, and ordered reinstatement; the judge gets 3 days to respond.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a for-cause disqualification claim grounded in bias/appearance of partiality can be waived by untimeliness (failure to file "at the earliest practicable opportunity"). | Lennar: the statement was filed at the earliest practicable opportunity given the cumulative record and pendency of Doma’s challenges and stays. | Trial court/class reps: Lennar waited years after the challenged remarks and therefore impliedly waived the right to seek disqualification. | Held: Waiver by untimeliness does not apply to claims alleging personal bias or appearance of partiality under § 170.3(b)(2); judge could not strike as untimely. |
| Whether Lennar’s statement was a successive/repetitive filing barred by § 170.4(c)(3) because Doma previously filed a similar challenge. | Lennar: Doma and Lennar are distinct legal entities and Lennar had not previously filed a statement; Doma’s challenge does not preclude Lennar’s independent challenge. | Trial court: Doma and Lennar were "inextricably intertwined," so Lennar’s filing was successive. | Held: §170.1(a)(8)(B) definition (for dispute-resolution disclosure) does not make separate corporations automatically the same party here; Lennar and Doma are distinct and Lennar had not filed a prior statement — strike for succession was improper. |
| Whether Lennar’s verified statement was facially sufficient or properly stricken as disclosing no legal grounds. | Lennar: the verified statement was detailed, supported by exhibits and transcripts, and alleged objective facts (judge’s remarks) that could lead a reasonable observer to doubt impartiality. | Trial court/class reps: the judge’s remarks were expressions of frustration or views on legal/factual issues (non-disqualifying under §170.2(b)) and did not show bias. | Held: The statement was facially sufficient; the trial judge improperly passed on the merits of sufficiency (which must be reviewed by another judge under §170.3(c)(5)). |
| Remedy/procedure after striking order vacated. | Lennar: sought reinstatement and expedited resolution because post-judgment motions were pending. | Trial court: had struck the filing (and had not timely answered). | Held: Writ issues directing vacatur of strike; reinstated statement; trial judge given the remaining 3 days (of 10) to answer or consent; if judge answers, another judge must be assigned to decide. |
Key Cases Cited
- Caminetti v. Pacific Mut. Life Ins. Co., 22 Cal.2d 386 (Cal. 1943) (untimeliness can operate as waiver under prior law; foundational on waiver doctrine)
- Neblett v. Pacific Mut. Life Ins. Co., 22 Cal.2d 393 (Cal. 1943) (judge may not pass on own disqualification except as authorized; early authority on striking insufficient statements)
- United Farm Workers of America v. Superior Court, 170 Cal.App.3d 97 (Cal. Ct. App. 1985) (explaining objective standard: reasonable person might doubt judge’s ability to be impartial)
- Haworth v. Superior Court, 50 Cal.4th 372 (Cal. 2010) (defining “impartial” and framing the objective perspective for disqualification)
- Wechsler v. Superior Court, 224 Cal.App.4th 384 (Cal. Ct. App. 2014) (de novo review applies when relevant facts undisputed for appearance-of-bias claims)
- Jolie v. Superior Court, 66 Cal.App.5th 1025 (Cal. Ct. App. 2021) (timeliness/"earliest practicable opportunity" is reviewed de novo)
- Curle v. Superior Court, 24 Cal.4th 1057 (Cal. 2001) (statutory construction of disqualification statutes and need for prompt appellate review)