NORTH AMERICAN TITLE COMPANY еt al., Petitioners, v. SUPERIOR COURT OF FRESNO COUNTY, Respondent; CAROLYN CORTINA et al., Real Party in Interest.
F084913
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 5/19/23
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 07CECG01169)
ORIGINAL PROCEEDINGS; petition for writ of mandate. Jeffrey Y. Hamilton, Jr., Judge.
No appearance made for Respondent.
Wagner Jones Kopfman & Artenian, Andrew B. Jones and Lawrence M. Artenian; Cornwell & Sample, Stephen R. Cornwell and Rene’ Turner Sample; Wanger Jones Helsley, Patrick D. Toole, for Real Party in Interest.
-o0o-
Petitioner, formerly known as North American Title Company, Inc. and now known as Lennar Title, Inc. (Lennar Title), alleges the trial judge improperly struck its statement of disqualification for cause as untimely, insufficient, and successive. (See
Petitioner filed the instant statement for disqualification for cause roughly a year after the comments were made, but during which time the superior court judge was subject to preemptory disqualification under
Upon review, we determine a statement of disqualification for bias, prejudice, or appearance of impartiality cannot be found to be impliedly waived as untimely under
Overview of the Superior Court Proceeding
In 2007, plaintiff Carolyn Cortina filed a class action complaint alleging various wage and hour violations against her employer, then named North American Title Company, Inc., a California corporation. The complaint was amended in 2009 and 2010 to add 12 additional named plaintiffs and class representatives.
In 2010, the superior court granted certification to two classes; the “exempt” and “non-exempt” subclasses, referring to groups of employees that were categorized as salaried and hourly-wage employees, respectively. Before proceeding to a court trial in September 2015, class representatives dismissed statutory wage and hour causes of action under the Labor Code and proceeded solely under
In October 2016, following an approximate 41-day bench trial, the trial judge issued a statement of decision decertifying the non-exempt class and finding liability in favor of class representatives as to the exempt class. In the statement of decision, the trial judge held “due to the consumption of time that would be required to assess the amounts of individual restitution,” it appointed a referee to determine damages based on the individual testimony of both class representatives and absent class members. Over the course of several years following the liability phase of trial, the referee held individual hearings and obtained testimony of nearly 250 class members. Judgment was ultimately entered on August 31, 2022, against Lennar Title in the amount of approximately $43.5 million.
According to the docket, the trial judge made his first ruling in the case in September 2010, presided over the court trial as to liability in 2015 and 2016, and was assigned as the judge for all purposes on June 25, 2020.
Corporate Restructuring and Sale of Name to Different Corporate Entity
A series of business transactions occurred in 2018 and 2019 resulting in the sale of the name North American Title Company, Inc. to a different company. States Title FTS Title Company, a separate corporate entity with a separate entity number from the Secretary of State (Cal. Entity No. C4102990), obtained the right to use the name North American Title Company, Inc. from petitioner‘s parent companies. On January 7, 2019, the companies switched names. Lennar Title filed amended articles of incorporation and changed its name from North American Title Company, Inc. to CalAtlantic Title, Inc. At
The name change did not last long. On February 17, 2021, CalAtlantic Title, Inc. adopted its current name as Lennar Title, Inc. On May 12, 2021, States Title FTS Title Company abandoned the use of the North American Title Company, Inc. name, and changed to its present name, Doma Title of California, Inc. (Doma Title). Based on the exhibits filed with this petition, Lennar Title and Doma Title have retained the use of those corporate names.
Although trial had commenced in the action years earlier, the business transactions and corporate name changes caused class representatives to seek additional discovery and attempt to add Doma Title as a defendant to the action. In adjudicating issues arising from class representatives’ efforts to conduct discovery and amend its complaint to add a new party after liability had been determined, the trial judge made comments about Lennar Title and Doma Title, which both parties relied upon to seek to disqualify the trial judge for cause. (
Efforts to Conduct Financial Discovery and to Add Doma Title as a Party
Starting in April 2019, class representatives moved to reopen discovery to conduct a limited investigation into Lennar Title‘s finances and the relation of Lennar Title to the other entities involved in the business transaction. Lennar Title opposed reopening discovery as the original discovery cutoff expired seven years earlier in 2012. Alternatively, Lennar Title argued class representatives had yet to obtain a judgment and could not avail themselves to the discovery entitled to judgment creditors. The trial judge granted the request to reopen discovery, and additional discovery motions followed. The dispute culminated with Lennar Title filing a petition for writ of mandate with this court. We issued a temporary stay of the deposition of Lennar Title‘s person most knowledgeable pending the determination of the writ petition, but ultimately denied the petition and lifted the stay on November 26, 2019. The order noted Lennar Title “raises legitimate concerns regarding whether discovery of financial information is relevant (see
Having conducted discovery, class representatives moved to amend the complaint to add “North American Title Company, Inc.” and “Cal Atlantic Title Company, Inc.” as defendants. Two points created significant confusion. First, class representatives had misnamed Lennar Title as “North American
Hearings on Motion to Amend to Add Doma Title
On June 23, 2020, the trial judge issued a tentative ruling denying the motion to amend finding the causes of action against Doma Title did not relate back to the claims in the action. The tentative ruling explained, “The proposal to add the current holder of the name North American Title Company, Inc. [i.e., Doma Title] is premised on the transfer agreement and other conduct occurring after the finding of liability, and appears to be premised on the Fraudulent Transfer Act, found at
At the hearing on the motion held the next day, the trial judge discussed the corporate restructuring of the North American Title entities, and noted his potential discomfort:
“You know, just at the base of it all, it certainly feels like we‘re all in a carnival and we‘re playing a shell game with a whole bunch of shells and only one nut. It‘s – you know, again, from the face of it,
it doesn‘t even appear that defendant is trying to hide it very much, you know, they are playing a shell game on purpose. They‘ve got a big potential liability and they want to try to avoid it.”
While the trial judge‘s comments alluded to Lennar Title allegedly attempting to evade enforcement of the future judgment, he immediately provided the following mitigating statements:
“I guess the problem for the Court, is as you mentioned, this is certainly going to be appealed. It‘s a potential big money judgment, potentially. So I would expect it. And so that‘s why the Court goes back to if we end up getting to this -- if you want me to somewhat put this on pause until these other events occur, then this is not necessarily important right now, but the Court‘s not totally comfortable at this point, which is why the tentative looked like it did, in saying you can[not] amend the complaint. As [counsel] indicated, if this is a nonparty, the Court doesn‘t know, or doesn‘t have the legal support for allowing that. You know, I‘m -- you look at fraudulent transfers act, or alter ego, or things like that, post judgment, that‘s different. So those are the kind of issues that I‘d probably ask both sides to brief were we to get to it as preview of coming attractions. So we don‘t necessarily have to do it based on what you‘re saying right now.”
Lennar Title‘s counsel responded to the comments. Counsel noted the framing of the corporate transaction as a shell game implied a nefarious purpose on Lennar Title‘s behalf. Instead, she explained Lennar Title received monetary consideration for the sale of some of its assets, and remained a going concern. Counsel explained:
“I did want to address the comment that it appears to the Court that the defendant doesn‘t dispute a shell game or is trying to hide it. I think that that is not a proper representation of the circumstance. I think that North American -- certain assets of North American Title Company, Inc., were sold. There wasn‘t -- it was an asset sale, and there was money received by what is now CalAtlantic Title for those assets. And CalAtlantic Title, Inc., continues to operate and continues to have the assets that were transferred to it.”
“So this isn‘t a situation where I think the idea that there‘s some kind of shell game, which infers some nefarious purpose, that isn‘t what happened here. We have provided the -- CalAtlantic Title Company, Inc., has provided extensive transaction documents to the plaintiffs. They produced the list of assets that were transferred. They produced the information about what was received in exchange for those assets. They‘ve provided information about what remains operating under CalAtlantic Title in California. So I think the inference that there‘s some type of effort in this case, or that this transaction somehow was motivated by this case, certainly that‘s not the defendant‘s perspective.”
Failure to Serve Doma Title with a Summons and Complaint
On March 10, 2021, class representatives filed a third amended complaint nаming Doma Title as a defendant. The complaint was not served on Doma Title; rather, class representatives only e-mailed a copy of the complaint to counsel for Lennar Title.
Although it was not served, Doma Title specially appeared in the action and moved to quash for lack of service of process on April 8, 2021. Doma Title argued since it was not served with a summons and complaint, the court lacked jurisdiction over it as a party to the litigation. Class representatives opposed the motion on several grounds. They argued the court had personal jurisdiction over Doma Title based on its minimum contacts and presence in California. Class representatives also believed service was not necessary as the newly added defendant was not a new party, but rather a different name for the existing defendant. Lastly, class representatives presented evidence indicating that as part of the purchase of the North American Title Company, Inc. name and other assets, Doma Title had contracted for Lennar Title to indemnify it for any liability arising from this litigation, as well as from incurring the continuing costs of litigation. Based on the indemnification and duty to defend, class representatives concluded Lennar Title intended to separate its assets from the liabilities arising from this litigation and evade payment on the eventual judgment.3
Hearing on the Motion to Quash Service of Summons
The trial judge denied the motion to quash on June 18, 2021. At oral argument the trial judge started by sharply questioning Lennar Title‘s counsel whether he knew what party he was representing:
“THE COURT: Any other appearances?”
“[COUNSEL]: Yes, your honor. [Counsel] for defendant, North American Title Company, formerly known as North American Title Company, Inc. and CalAtlantic Title, Inc., and now known as Lennar Title, Inc.
” “THE COURT: Are you sure? Are sure, [Counsel]? I‘m not hearing you, [Counsel].”
“[COUNSEL]: Yes. Am I sure?”
“THE COURT: Yes. Are you sure about all of those names? Are you sure you‘ve got the right ones now or not? I just want to make sure.”
“[COUNSEL]: I believe I do, your Honor.”
“THE COURT: Well, you are not sure though; right? You just believe you do or are you sure 100 percent? [¶] It‘s not rhetorical, [Counsel] I need an answer.”
“[COUNSEL]: Yes. I‘m appearing for defendant and real party North American Title Company formerly known as North American Title Company, Inc., CalAtlantic Title, Inc. and now known as Lennar Title, Inc.”
“THE COURT: Okay. I‘ve read all of your submissions. The defendants, whoever they are calling themselves today as well as [Doma Title‘s] and the plaintiffs’ responses.” (Emphasis added, unnecessary capitalization omitted.)
After addressing a delay involving an echo from the parties appearing remotely, the trial judge made the following statements.
“THE COURT: All right. [Counsel for Doma Title], I read your papers. Are you submitting?”
“[COUNSEL FOR DOMA TITLE]: Your honor, unless the court has questions, I believe it‘s [indecipherable] appropriately.”
“THE COURT: Okay. All right. So I had a lot to say but I‘m going to cut it short.”
“The only question for you[] that I have with the name game shell game that we are playing is you purport to represent the, quote, new North American Title[,] Inc., formerly known in one part of the pleading as States Title FTS Title Company, but in another part of the pleading you say that they were formerly States Titel, T-I-T-E-L, Co. FTS.”
“I‘m just curious. Are those two different companies? Is that a proofreading oversight or more trickery, which one?
” “[COUNSEL FOR DOMA TITLE]: Well, it‘s not trickery. It would be a proofreading error if it‘s there.”
“THE COURT: Oh, it‘s there because I read all of the papers very carefully. Okay. That was the only question I had.”
“I think the plaintiff encapsulated the posture of this case in one of the sentences that I read in their papers and I‘ll quote it.”
“‘After becoming aware that defendants began scheming to prevent collection of the forthcoming judgment through a corporate game of three-card monte, plaintiffs filed the motion to reopen discovery to ensure the pleadings correctly identify the current name of the plaintiffs’ employer that has defended the case since 2007.‘”
“And that is still where we find ourselves, a game of name change shell game. We‘re rapidly approaching the five-year anniversary not of the case but from the end of the trial and the issuance of the statement of decision.”
“The trial began nearly six years ago on September 21st, 2015; stipulated rested as of March 4th, 2016; and defendants in whatever name they now like to be known, it‘s been consistently morphing since the end of trial, they‘ve tried every device to delay the inevitable. They‘ve tried every device to make sure that they evade the payment of their obligation.”
“You can go through all of the games that were played with the referee, the writ and then the appeal and just quoting from back in 2017 from the [C]ourt of [A]ppeal about one of the gamesmanships with the referee:”
“‘Here, the cost order was not a grant of an injunction. Instead, it was simply an order that NATC pay the reference fees as part of the trial court‘s power to order a nonconsensual reference to determine the restitution, bold underlined, to which the class members are entitled. Characterizing the cost order as an injunction is just a creative way of trying to shoehorn such an order into something otherwise appealable. In sum, the cost order is not an appealable -- is not appealable as either a collateral or an injunction.’ And it goes on and on.”
“The motion to quash is denied. Response due in five days. Thank you.” (Emphasis added, unnecessary capitalization omitted.)
Doma Title Petitions for Writ Relief from Denial of Motion to Quash
Doma Title sought relief from the order denying the motion to quash by filing a petition for writ of mandate with this court. On September 16,
Service on Doma Title and Attempts to Disqualify the Trial Judge
On September 23, 2021, class representatives filed, and the trial judge granted, an ex parte request to issue summons and conduct a deposition of the person most knowledgeable for Doma Title. Class representatives served Doma Title with summons and the operative comрlaint on September 27, 2021, and immediately propounded discovery.
A week later, on October 4, 2021, Doma Title filed a peremptory challenge to disqualify the trial judge under
While the writ was pending, the parties continued to prosecute the underlying litigation in the superior court. On October 29, 2021, class representatives filed an ex parte motion for several forms of relief. They noted Doma Title‘s corporate status had been listed as suspended and requested all filings made
The trial judge issued a verified answer to Doma Title‘s statement of disqualification. He proffered his explanations regarding his repeated comments defendants were engaging in a “‘shell game‘” and a “‘corporate game of three-card monte.‘” He did not deny making the comments. Instead, he provided his reasoning, “[i]t appeared that the changing of names – and potentially corporatе parties five years post statement of decision and pre-entry of judgment – was being employed ‘by DEFENDANT’ (NATC) to avoid what everyone now knew would be a judgment in the tens of millions of dollars when judgment finally entered.” (Emphasis in original; fn. omitted.) Additional statements in the answer clarified the comments were directed not at Doma Title, but rather at petitioner - Lennar Title. “[Doma Title‘s counsel] knew that this court‘s comment about a shell game was directed at [Lennar Title] and could not have been directed at Doma because at the time of the hearing, the corporation ‘Doma Title of California, Inc.’ did not exist.” “Doma was never mentioned as Mr. Gilmore stated in his verified challenge. Also, his statement is misleading because not only was this judge expressly QUOTING the Plaintiffs papers, he was CLEARLY referring to the trial defendant attempting to avoid the payment of the judgment award, not some nascent corporation.”
The trial judge did not address or otherwise provide a defense to his allegations of trickery, scheming, or gamesmanship on behalf of defendants. Rather, he provided the following statement: “This responding judge respectfully submits that the reasonable person – aware of this judge‘s 11+ year history on this case as recounted above, as well as his character and reputation for impartiality – would not question his impartiality.”
For reasons unknown to this court, Doma Title‘s statement for disqualification was not immediately reviewed by another judge. Nearly two months later, on December 29, 2021, Doma Title filed a supplemental verified statement of disqualification and request for assignment of a judge by the Judicial Council. Doma Title explained in the supplemental statement it
Dismissal of Doma Title
On January 4, 2022, after spending a year and a half to add Doma Title to the litigation, class representatives provided notice they intended to dismiss Doma Title without prejudice and have the trial judge declare Doma Title‘s pending request for judicial disqualification as moot. Class representatives noted Doma Title was refusing to participate in discovery and intended to file a demurrer to seek its dismissal from the action. Doma Title planned to assert in its demurrer that the claims against it were barred by the statute of limitations, and as it did not exist as a corporate entity until 2018, the operative complaint failed to show it would be liable for wage and hour claims arising from the employment of class members prior to its existence. Acknowledging such disputes may take years to adjudicate, class representatives sought to dismiss Doma Title so that it could proceed to attempt to obtain a final judgment in the matter.
On January 6, 2022, this court issued an alternative writ order directing the superior court to either vacate its October 6, 2021 order denying the motion to disqualify under
On January 20, 2022, class representatives filed a request for a continuation of the hearing in the superior court to discuss how to respond to the alternative writ order. Noting it may be problematic for the trial judge to rule on the request for dismissal of Doma Title in light of the pending disqualification motions, class representatives set an ex parte hearing in front of a different superior court judge to address the dismissal request. The trial judge granted the continuance and set the hearing on the alternative writ order on January 28, 2022. Class representatives proceeded to file the ex parte request to dismiss Doma Title before a different judge noting the purpose of the dismissal was to render the peremptory challenge filed by Doma Title and the resulting order to show cause moot. Doma Title did not oppose its dismissal from the action, but Lennar Title provided objections to the request. It noted class representatives had not provided a showing of irreparable harm or immediate danger to have the motion be heard ex parte, let alone before a judge not assigned to the matter. On January 25, 2022, the other judge dismissed Doma Title from the action without prejudice.
On April 1, 2022, Kings County Superior Court Judge Randy Edwards, sitting by special assignment as a Judge of the Fresno County Superior Court, requested transcripts to review the request for disqualification for cause of the trial judge, and noted he would decide the matter within 15 days of receipt of the transcripts.
On June 28, 2022, this court issued its ruling denying the petition for writ of mandate seeking review of the denial of the peremptory challenge under
In making the determination, this court noted “[n]othing in this opinion should be read as implying that these entities are, or are not, alter egos or that Doma Title is, or is not, a successor in interest liable for the debts of Former NATC/Lennar Title.” (Doma Title of California, Inc. v. Superior Court (June 28, 2022, F083454) [nonpub. opn.], p. 5.) The order discharged the alternative writ as improvidently granted and ordered the stay be vacated upon the finality of the opinion. (Id. at p. 16.)
On July 28, 2022, Judge Edwards denied the disqualification request without prejudice. The order explained the motion to disqualify was made moot by the dismissal of Doma Title from the action. Since the dismissal was without prejudice, the denial of disqualification was likewise without prejudice should Doma Title again become a party to the proceeding at a time subsequent to the order.
Lennar Title Files Statement of Disqualification for Cause
Having resolved Doma Title‘s motions to disqualify, class representatives filed a status conference statement requesting the trial judge enter judgment as soon as possible. Before any substantive hearings took place, on August 18, 2022, Lennar Title filed a verified statement to disqualify the trial judge
On August 26, 2022, the trial judge issued the order striking Lennar Title‘s statement of disqualification that is subject to review in this petition. First, he held the statement was untimely. He noted the first comments which formed the basis of the statement of disqualification occurred two years earlier in June 2020. The trial judge found Lennar Title should not have waited to see if defendants would obtain a favorable ruling on Doma Title‘s statement of disqualification before filing its own statement of disqualification.
Next, the trial judge determined the statement of disqualification was properly stricken as a second and successive attempt to disqualify him for cause. (
Lennar Title filed the instant petition for writ of mandate with this court on September 9, 2022. On October 3, 2022, Lennar Title moved for expedited resolution of the petition. The motion explained judgment had been entered on August 31, 2022, and Lennar Title‘s motions for a new trial and to vacate the judgment were set for hearing on November 4, 2022. If it was to be determined the trial judge should be disqualified, Lennar Title argued it would be a waste of time and resources to allow post-judgment motions to proceed.
On October 21, 2022, this court issued an order to show cause, ordered briefing, and stayed further proceedings pending determination of this writ. Class representatives filed a return on November 21, 2022, and Lennar Title filed its reply on December 21, 2022. At the request of class representatives, supplementаl briefing was provided.5 Upon conducting a preliminary review
DISCUSSION
I. Standards of Review
The question whether a statement of disqualification was filed “‘at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification,’ as required by
To the extent portions of this opinion review the merits of the claims of bias or the appearance of lack of impartiality, the de novo standard also applies. “The weight of authority supports that where, as here, the relevant facts are undisputed, a de novo review standard applies to a
As writ review is the exclusive method for seeking review of claims of statutory disqualification, the writ cannot be discretionarily denied. “The discretionary aspect of writ review comes into play primarily when the petitioner has another remedy by appeal and the issue is whether the alternative remedy is adequate.” (Powers v. City of Richmond (1995) 10 Cal.4th 85, 113-114.) “When an extraordinary writ proceeding is the only avenue of appellate review, a reviewing court‘s discretion is quite restricted.” (Ibid.) Where a petitioner has a “substantial right to protect or enforce, and this may be accomplished by such a writ, and there is no other plain, speedy and adequate remedy in the ordinary course of law, [petitioner] is entitled as a matter of right to the writ, or perhaps more correctly, in other words, it would be an abuse of discretion to refuse it.” (Ibid.)
II. History of the Right to Strike Statements of Disqualification
A. Enactment and Liberal Construction of Disqualification Statute
For over 130 years,
The broad application of the statute had an important purpose – to instill public confidence in the judiciary. “‘A sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance.‘” (Meyer v. San Diego (1898) 121 Cal. 102, 106 (Meyer).) “‘It should be the duty and desire of every judge to avoid the very appearance of bias, prejudice, or partiality.‘” (Ibid.) “The object of section 170 ‘is not only to guard jealously the actual impartiality of the judge but also to insure public confidence.‘” (Thomas, supra, 8 Cal.3d at p. 520.) “‘It is the design of the law to maintain the purity and impartiality of the courts, and to insure for their decisions the respect and cоnfidence of the community.‘” (Lindsay-Strathmore Irrigation Dist. v. Superior Court of Tulare County (1920) 182 Cal. 315, 334 (Lindsay-Strathmore Irrigation Dist.) [“[I]t is of great importance that the courts should be free from reproach or the suspicion of unfairness.“].)
B. Judicially Created Right to Strike Insufficient and Untimely Statements of Disqualification
Over time, certain limitations have been placed on the right to seek judicial disqualification, including the right of the trial judge to strike insufficient statements of
disqualification. “It is true a judge has no jurisdiction to pass upon his own disqualification, but where the statement of disqualification is legally insufficient and is based on frivolous grounds, he may disregard it or strike it from the record.” (Neblett v. Pacific Mut. Life Ins. Co. (1943) 22 Cal.2d 393, 401.) “A statement that contains nothing but conclusions and sets forth no facts constituting a ground of
The right of trial judges to strike untimely statements of disqualification arose after the Legislature amended
C. 1981 Amendments Remove Ability to Strike Statements of Disqualification
In 1981,
The State Bar of California provided a statement justifying the amendment, observing, ” [this] anomalous case law creates substantial potential for impropriety and for the appearance of impropriety. It permits a challenged judge to totally avoid the disqualification hearing and, in essence, to rule upon his disqualification, thereby leaving the party purporting to be aggrieved to the uncertain remedy of a prerogative writ. ” (Penthouse, supra, 137 Cal.App.3d at p. 981.) “The proposed amendment eliminates the anomaly and requires that all issues concerning disqualification for cause be determined by another judge. ” (Ibid.)
Not long thereafter, the entire statutory framework for disqualifying judges for cause was revised and modernized. In 1984, Senate Bill No. 1633 (1983-1984 Reg. Sess.) (Senate Bill No. 1633) was enacted, revising
Deciding whether judges should be provided authority to strike statements of disqualification was a contentious issue. For example, Professor Preble Stoltz, Chair of the State Bar Committee on the Administration of Justice, noted:6 “To my mind there is a real danger that the wrong kind of judge will overreach any authority he may have to strike.” (Prof. Preble Stolz, State Bar Com. on the Admin. of Just., letter to Richard Thomson, Chief Consultant, Sen. Com. on Judiciary, Apr. 18, 1983.) However, the California Judges Association expressed countervailing concerns that judges would be unable to quickly address the large number of frivolous attempts to disqualify judges. “[F]rivolous challenges from criminal defendants representing themselves are a serious and growing problem which wastes a significant amount of judicial time and money.” (Sen. Barry Keene, Chairman, Sen. Com. on Judiciary, letter to Gov. George Deukmejian, Sep. 6, 1984.)
The second significant change was creating a broader, more objective standard for showing bias and prejudice. (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 103 (United Farm Workers).) “This subdivision changes the law in that the previous corresponding statute,
E. 1990 Amendments Prohibit Waiver for Bias or Prejudice
Whereas the former version of
III. Analysis
A. Timeliness and Waiver of Statement of Disqualification
Petitioner contends its statement of disqualification was presented at the earliest practicable opportunity as it was not evident the judge was unable to be impartial until the cumulative impact of his comments were taken into account. Additionally, petitioner contends any delay in filing the statement was attributable to review of the statements of disqualification from Doma Title. During much of the time in consideration this court had stayed the superior court proceeding to review Doma Title‘s peremptory challenge under
Our primary task “in interpreting a statute is to determine the Legislature‘s intent, giving effect to the law‘s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent.” (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) In doing so, we give the words “their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute‘s purpose.” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529Curle, supra, 24 Cal.4th at p. 1063.) Likewise, if the Legislature has provided an express definition of a term, that definition ordinarily is binding on the courts. (Ibid.) As part of this process, ” ‘[every] statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.’ ” (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 610.)
In addition to applying the settled principles of statutory construction, we must consider the Supreme Court‘s admonitions that the disqualification statutes “should not receive a technical or strict construction, but rather one that is broad and liberal” (North Bloomfield Gravel Mining Co. v. Keyser (1881) 58 Cal. 315, 322) and are “to be liberally construed, with a view to effect its objects and to promote justice.” (
B. Prohibition on Waiver of Claims of Doubts as to Impartiality
In its statement of disqualification, Lennar Title relies on the grounds set forth in
Six years prior to the amendment to add the language of
According to the legislative history, the language of
At the time the Legislature passed Senate Bill No. 2316, several things were known. It was clear the newly added waiver language of
At the time of enactment of Senate Bill No. 2316, the commentary to the California Code of Judicial Ethics described the two standards as “comparable.” (Cal Rules of Court, appen., div II, Canon 3.) Likewise, the definitions contained in the California Code of Judicial Ethics and Model Code of Judicial Conduct explain “impartial” as the inverse of “bias or prejudice.” (Cal. Code Jud. Ethics, Terminology; ABA Model Code Jud. Conduct (2007), Terminology, p. 4.) ” ‘Impartial,’ mean[s] the absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 389 (Haworth).)
In order to construe the statute broadly and liberally, commonsense dictates the prohibition on waiver under
C. Section 170.3(b)(2) Applies to Implied Waiver Due to Untimeliness
Having found the prohibition on waiver under
We start with the plain language of the statute. Based on
” ‘[T]he Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes ” ‘in the light of such decisions as have a direct bearing upon them.’ ” ’ ” (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 146 [citing People v. Overstreet (1986) 42 Cal.3d 891, 897].) At the time the Legislature amended
This interpretation aligns with the purpose of the amendments to assure that even the shadow of bias is kept out of California courts and conforms with prior statutory language and judicial construction. To protect public confidence in the judiciary, certain grounds of disqualification have historically been too important to waive. (Muller v. Muller, supra, 235 Cal.App.2d at p. 345, fn. 4 [“It should be here noted that in Caminetti it was held that the disqualification provided for in subdivision 1 of section 170 relating to a personal interest of a judge in litigation cannot be waived since it was intended to protect the state and judiciary as well as the parties to the suit.“].) While Caminetti focused on subdivision 1 of former
Although judges are unable to strike statements of disqualification for personal bias or prejudice as untimely, it is unlikely to cause issues for which the implied waiver doctrine was created in the first place. The primary concern was parties would take advantage of the process by presenting claims of disqualification after obtaining an unfavorable result on a motion or at trial to attempt to vacate the unfavorable ruling after the fact. (Caminetti, supra, 22 Cal.2d at p. 392; Rohr v. Johnson (1944) 65 Cal.App.2d 208, 212 [“A party should not be allowed to gamble on a favorable decision and then raise such an objection in the event he is disappointed in the result.“].) If a party is truly concerned the trial judge lost his or her objectivity, there would be no incentive to wait to raise the issue of disqualification until after obtaining a ruling, as the party would be under no illusion the judge would provide a favorable ruling. Second, the provisions of
Senate Bill No. 2316 was enacted to be operative in 1990, but no opinion has addressed its applicability on implied waiver due to untimeliness. At least one opinion appears to have been issued after enactment but addressed events occurring before it was in effect. (See In re Steven O., supra, 229 Cal.App.3d at p. 54; Barrera, supra, 70 Cal.App.4th at p. 549, fn. 3.) Other opinions did
D. Additional Arguments Alleging Implied Waiver
Class representatives argue Lennar Title‘s actions to continue to litigate in the superior court should be considered additional grounds for implied waiver. Specifically, class representatives point to Lennar Title‘s objecting to the language of the proposed judgment and perfecting an appeal from the judgment. Class representatives rightfully acknowledge filing a notice of appeal was necessary for Lennar Title to “preserve [its] rights in case this Petition is denied,” but argue any action beyond seeking to stay the underlying proceeding and appeal show Lennar Title intended to waive its right to seek disqualification under
This argument is simply dispatched based on the interрretation of the plain language of
As class representatives acknowledged, the failure of Lennar Title to continue to take necessary actions to protect its interests in the underlying
Separately, class representatives argue Lennar Title has not shown prejudice as it will have the opportunity to address any unfavorable rulings on post-judgment motions on appeal. Although true the underlying rulings are subject to appellate review, any challenge on appeal could not address statutory claims of disqualification under section 170 et seq. Rather, they would be limited to non-statutory claims of deprivation of the right to constitutional due process to a fair trial in a fair tribunal. (People v. Chatman (2006) 38 Cal.4th 344, 362; In re Murchison (1955) 349 U.S. 133, 133, 136.) The constitutional standard is significantly more stringent. (Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, 877, 886-887 [“These are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable’ ” and applies to cases involving “extreme facts.“].) Despite class representatives’ assertions otherwise, asking Lennar Title to forego its statutory claims of disqualification which were enacted to jealously guard the rights of parties and guarantee public confidence in the judiciary (Thomas, supra, 8 Cal.3d at p. 520) would indeed be prejudicial.
E. Successive Statement Alleging No New Facts
The trial judge also based his order striking the statement of disqualification as a second or successive petition under
Using the above definition, the trial judge found the actions of Doma Title in filing the earlier statement of disqualification for cause should be imputed on Lennar Title as if they were the same party. Applying the definition here was inappropriate for several reasons. First, the plain language of
Furthermore, while Doma Title had filed a prior statement of disqualification for cause raising similar concerns, it was never substantively reviewed on the merits.
F. Sufficiency of the Statement of Disqualification
Lennar Title alleged its statement of disqualification was proper because a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial or, relatedly, the trial judge had expressed bias and prejudice against it and its counsel.
The question at issue is not whether a person might reasonably entertain a doubt whether the trial judge would be able to be impartial. It is whether the trial judge had authority to strike the statement as insufficient. Under
In striking the statement of disqualification, the trial judge argued the statements were not disqualifying as they were statements of frustration (see People v. Brown (1993) 6 Cal.4th 322, 337), erroneous legal rulings (Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, 423), or the expression of a view on a legal or factual issue presented in the proceeding (
Review of Lennar Title‘s statement of disqualification leaves little doubt it was facially sufficient. The verified statement is 19 pages long and is accompanied by the declaration of Lennar Title‘s counsel and 15 exhibits, totaling over 300 pages. The statement describes the trial judge‘s comments made during argument in detail, as well as provides pinpoint citations to the reporter‘s transcripts. Likewise, after setting forth the relevant legal standards for review of questions of disqualification based on reasonable doubts concerning the judge‘s impartiality, Lennar Title engaged in a detailed discussion as to why the trial judge‘s disqualification was required in this case. Lennar Title summarized its argument in the following manner:
“The comments that Lennar Title was participating in a ‘shell game’ to avoid the judgment show bias and prejudice, and would lead to a reasonable person to doubt whether the Judge can be impartial in further proceedings against Lennar Title. The Judge challenged counsel for Lennar Title about whether he knows who he represents and concluded, without evidence of any nаture, briefing or hearing, that Lennar Title is engaged in a shell game, trickery, and an ongoing improper scheme to evade an ‘inevitable judgment.’ The Judge‘s hostility toward Lennar Title‘s legitimate efforts to bring issues before the Court of Appeal colors his decisions and will continue to bias the important post-trial decisions that he must make in this case. A reasonable person present in court would agree that the Judge has already prejudged that Lennar Title was engaged in some form of nefarious behavior in order to avoid paying a judgment that has not yet been entered. These preconceived opinions necessitate disqualification as a matter of law. [Citation.]
“Furthermore, the Judge‘s Verified Answer in response to Doma‘s challenge for cause further confirms bias. The Judge‘s Verified Answer contends that the words he uttered at the June 18, 2021 hearing ‘was CLEARLY referring to the trial defendant attempting to avoid the payment of the judgment award, not some nascent corporation.’ [Citation.] A reasonable person would read this statement as meaning that the Judge had prejudged Lennar Title as attempting to avoid paying the judgment for unfounded, improper reasons.”
The statement of disqualification was thorough and sufficient. (See contra, Urias v. Harris Farms, supra, 234 Cal.App.3d at p. 426 [“Mere conclusions of the pleader are insufficient.“]; Fine v. Superior Court (2002) 97 Cal.App.4th 651, 667 [“Fine provided few facts in support of the allegations contained within his statement of disqualification. We conclude, therefore, that the statement of disqualification was properly stricken.“].)
In addition to being facially sufficient, the claims presented in Lennar Title‘s statement were both substantial and concerning. The trial judge made repeated comments regarding how Lennar Title was “scheming,” engaged in “trickery” and “gamesmanship,” and their efforts to evade judgmеnt were akin to “three card monte” and a “shell game.” Class representatives had never alleged claims under the
(Merriam-Webster Dict. Online (2023) <https://www.merriam-webster.com/dictionary/shell%game> [as of May 19, 2023].).
” ‘Bias is defined as a mental predilection or prejudice; a leaning of the mind; “a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction.” [Citation.] Bias or prejudice consists of a “mental attitude or disposition of the judge towards a party to the litigation.” ’ ” (In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 789.) The repeated use of the above terms could create the perсeption from a reasonable observer that the trial judge believed Lennar Title was engaged in deceptive and wrongful actions to evade the upcoming judgment.
Class representatives argue the statements are not the basis of disqualification as “[i]t shall not be grounds for disqualification that the judge ... [h]as in any capacity expressed a view on a legal or factual issue presented in the proceeding.” (
Hearing the comments, a reasonable observer may be concerned the trial judge was predisposed to decide future rulings unfavorably against Lennar Title, including pending post-trial motions. “Where a judge gratuitously offers an opinion on a matter not yet pending before him and thereby shows a bias or prejudice against a party, a writ of mandate will issue precluding the opining judge from hearing that matter.” (Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 84.) Based on the totality of the statements above, Lennar Title presented a colorable case and a fully informеd, reasonable member of the public could entertain doubts the trial judge retained an appearance of being impartial. ” ‘The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand.’ ” (Id. at pp. 87-88.)
G. Failure to Answer the Statement of Disqualification
Having found the order striking the statement of disqualification was improper and must be vacated, we turn to what should occur on remand. Upon reinstatement of the statement of disqualification, the trial judge shall be provided the remaining three days of the 10-day period to respond before being deemed to have consented to disqualification. (
Striking a statement and filing an answer are not mutually exclusive; there is no “logical reason to prevent a judge from striking such a statement subsequent to filing an answer so long as it is done within the 10 days prescribed by the statute.” (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 973.) The trial judge did not answer the statement within 10 days, but “upon striking the declaration, it no longer exist[ed] to be consented to or answered.” (Ibid.) As the statement of disqualification effectively ceased to exist upon being stricken, it follows the 10-day deadline to file a consent or answer no longer continued to run.10 Once the order striking the statement is vacated and the statement of disqualification is reinstated, the remaining period to respond under
Although we are not compelled to disqualify the trial judge under
“The power of the appellate court to disqualify a judge under ...
We acknowledge substantial issues exist whether a reasonable person might doubt the trial judge would be able to remain impartial, and allowing the trial judge the oрtion to answer will result in further delay in what is already an exceedingly old case. However, appellate courts are to exercise restraint before using the authority under
We are cognizant that “delay thwarts the legislative intent underlying
IV. CONCLUSION
We approach this writ proceeding fully aware of the nature and age of this case, as well as knowing the issuance of the order to show cause and ultimate review of the writ caused additional delay. “With the enactment of
DISPOSITION
Let a writ issue directing respondent Fresno County Superior Court, in case No. 07CECG01169, to vacate its August 26, 2022 order and reinstate Lennar Title‘s verified statement of disqualification. Upon reinstatement, the trial judge shall have three days to respond to the statement of disqualification in a manner set forth under
This court‘s stay order is vacated upon the finality of this opinion as to this court.
The parties’ requests for judicial notice, filed on January 31, 2023, and February 15, 2023, are granted.
SMITH, J.
WE CONCUR:
PEÑA, Acting P. J.
SNAUFFER, J.