Monday, December 27, 2004
Disqualification Required for Contact With ADR Firm Invalidates Judge’s Ruling on Motion, C.A. Says
By DAVID WATSON, Staff Writer
A judge’s recusal based on contact with an ADR firm required vacating his prior ruling denying summary adjudication, this district’s Court of Appeal has ruled.
Since the contact occurred before the ruling on the summary adjudication motion, it was improper for Los Angeles Superior Court Judge Aurelio N. Munoz to allow it to stand, the court’s Div. Five said Wednesday.
Munoz took over the case after Judge Jon Mayeda recused himself. Mayeda stepped down, the appeals court explained, when he realized that disqualification was mandated because he had discussed possible employment upon retirement with an alternative dispute resolution provider.
Code of Civil Procedure Sec. 170.1(a)(8)(B) requires disqualification, unless waived by the parties, if within the last two years a judge has “participated in—discussions regarding—prospective employment or service” as a dispute resolution neutral and the matter before him “includes issues relating to the enforcement of an agreement to submit a dispute to alternative dispute resolution or the appointment or use of a dispute resolution neutral.”
Writing for the appellate panel, Justice Orville A. Armstrong said the section became applicable in the litigation over the refusal of Hartford Casualty Insurance Company to defend its insureds when the parties orally suggested mediation at a hearing in January. Mayeda denied Hartford’s summary adjudication motion in February and recused himself in March when the motion to appoint a referee came on for hearing.
Mayeda “overlooked the fact that the same disqualifying factors existed before he was asked to appoint a referee, and so he should have recused himself even earlier in the litigation,” Armstrong explained. “Specifically, on January 8, 2004, when the parties requested referral to mediation, the litigation became one in which there was an issue relating to ‘the appointment or use of a dispute resolution neutral.’—.That, coupled with the judge’s admitted discussions with alternative dispute resolution providers regarding prospective employment, operated to disqualify him from further acting in the case.”
Armstrong said Mayeda “indicated he did not initiate the contacts and that it is very common for alternative dispute resolution providers to approach members of the judiciary regarding employment upon their retirement from the bench.” But even if the discussions were “superficial,” Armstrong said, disqualification under the statute was still required.
Citing Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415,Tatum v. Southern Pacific Co. (1967) 250 Cal.App.2d 40, and Giometti v. Etienne (1934) 219 Cal. 687, Armstrong said that in general disqualifications take place when the factors giving rise to them arise, and not merely when there is “subsequent judicial action on that disqualification.”
“That rule is confirmed by decisions holding that a judge who improperly rejects a timely filed statement of disqualification is disqualified as of the time the challenge was filed.”
Armstrong rejected the contention that Munoz acted properly in requiring Hartford to show good cause for vacating Mayeda’s February ruling.
The justice noted that Sec. 170.3(b)(4) provides that when “grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding but before the judge has completed judicial action in a proceeding—in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.” But that section does not describe the circumstances surrounding Mayeda’s disqualification, he said.
“[B]y its terms, that section does not apply to the current situation,” he declared. “In this case, the grounds for disqualification at issue were not ‘first learned of’ and did not ‘arise’ after the judge made his disputed ruling. Rather, according to the judge’s own statements, the fact that the judge engaged in discussions with an alternative dispute resolution agency was fully known to him at the time he agreed to refer the matter to mediation. The judge’s inadvertent failure to consider that the contacts he had with alternative dispute resolution providers effected his disqualification is of no moment. It was his responsibility to disqualify himself once factors that triggered the provisions of section 170.1, subdivision (a)(8)(B), arose.”
Armstrong conceded the existence of a “potential for mischief” in the court’s holding, commenting:
“It is true that parties dissatisfied with a judge’s rulings in a case may request appointment of a dispute resolution neutral, wagering that the judge may have discussed future employment as a dispute resolution neutral and so will become disqualified. That tactic certainly will undermine the time and number limitations imposed by section 170.6 on parties’ ability to jettison a judge they feel is unfavorable. However, we are bound to apply the disqualification provisions of section 170.1, subdivision (a)(8)(B), as written by the Legislature.”
“Besides, if judges who have discussed potential employment as a dispute resolution neutral reveal that fact at the outset of a litigation, recognizing the use of such a neutral is likely to become an issue in every case, they may take waivers of that potential disqualification before making any rulings that might be vacated—.And, even judges who have made rulings in a case, then become disqualified when the use of a dispute resolution neutral arises as an issue, can protect their prior rulings by promptly disqualifying themselves when the need arises and avoiding entry of any orders subject to challenge. On balance, the countervailing policy consideration of providing relief to parties from orders entered by a judge who, in good faith or bad, failed to properly disqualify himself, outweighs any concerns of gamesmanship that litigants might attempt.”
In a footnote, Armstrong said there was “nothing in the record” to suggest that anything but “inadvertence” led to Mayeda’s failure to disqualify himself sooner.
“In fact, we commend the judge for promptly disqualifying himself as soon as he realized the need,” the justice wrote.
The case is Hartford Casualty Insurance Company v. Superior Court (C3 Entertainment, Inc.), 04 S.O.S. 6718.
Copyright 2004, Metropolitan News Company