Metropolitan News-Enterprise


Wednesday, October 29, 2008


Page 1


Court: Appeal No Reason to Delay Bringing Recusal Motion




A party seeking appellate review of a trial judge’s ruling was not justified in waiting for the resolution of that effort before moving to disqualify the judge for alleged bias underlying the ruling, the Fifth District Court of Appeal ruled yesterday.

The justices denied a mandate petition seeking to disqualify Fresno Superior Court Judge  Adolfo M. Corona from presiding over a class action against Tri Counties Bank. The bank allegedly violated state law by seeking to collect deficiencies from the owners of repossessed vehicles without giving the notice required by statute.

Corona granted class certification in November of last year, three months after a hearing that resulted in a tentative ruling in favor of the class being certified. In that tentative ruling, Carona rejected the bank’s argument that the class was not reasonably ascertainable, the judge took notice that the bank’s 10-K filing with the Securities and Exchange Commission showed that the bank had substantial data processing capability.

In a supplemental brief, the bank argued that the judge should not have taken judicial notice of the “extraneous” 10-K on his own motion, and that the judge’s characterization of the document was wrong. Carona, however, ultimately ruled that the necessary data processing capability did exist, and that it would be appropriate to require the bank to ascertain the class even if it had to search paper files in order to do so.

The bank then petitioned the Court of Appeal for a writ of mandate denying class certification. A week after the petition was filed, the panel granted a stay of the trial court proceedings, but in February it denied the petition.

The state Supreme Court denied review in March. The bank sought to disqualify the judge by filing a Code of Civil Procedure Sec. 170.3 motion several days after that, alleging that by going outside the record to examine the 10-K, the judge had exhibited bias.

‘Earliest Practicable Opportunity’

Carona struck the motion as untimely, citing the statute’s requirement that the motion be filed “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” 

Justice Stephen Kane, writing for the Court of Appeal yesterday, said the trial judge was correct. Tri County, he noted, waited seven months from the time Carona took judicial notice of the 10-K before bringing the motion.

He rejected the argument that it was impractical for the bank to seek Carona’s disqualification while pursuing appellate review of his ruling. Kane said the bank could have brought the motion between the issuance of the tentative ruling and the filing of the writ petition, and that the law did not appear to preclude it from filing a Sec. 170.3 motion while the stay ordered by the Court of Appeal was in effect.

Reassignment Unnecessary

In an unpublished portion of the opinion, Kane acknowledged that the court had discretion to order reassignment of the case, even if the motion was untimely. But he concluded that there was no reason to do so, since the judge had given the bank an opportunity to reply to his consideration of the filing and had considered it for a relatively innocuous purpose.

The justice warned, however, that “judges are not at liberty to probe the internet for the purpose of secretly conducting investigations of parties or factual issues that are pending before them” and should conduct such searches only in “those instances where the matter under consideration is reasonably likely to be indisputable and readily verifiable in character.”

The case is Tri Counties Bank v. Superior Court (Amaya-Guenon), F055084.


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