Tuesday, February 18, 2014
Attorney Need Not Personally Sign Affidavit of Prejudice, Panel Says
Says Judge Treu Should Have Disqualified Himself Where Lawyer Instructed Secretary to Sign Document
By a MetNews Staff Writer
A Los Angeles Superior Court judge improperly rejected an affidavit of prejudice because an attorney did not sign the affidavit and instead had his secretary sign it, as it is “well established law” that a signature is valid if a person signs a document at the direction of another person, the Court of Appeal for this district has ruled.
Div. Three, in an unpublished opinion by Presiding Justice Joan Dempsey Klein, granted a petition for writ of mandate on Friday directing Judge Rolf M. Treu to vacate his order rejecting an affidavit of prejudice filed pursuant to Code of Civil Procedure 170.6, accept the affidavit, and immediately transfer the entire case to a different judicial officer.
Arich and Boulirne Syprasert filed the affidavit seeking a judicial officer other than Treu on Nov. 21, 2013, immediately after they discovered that their case had been assigned to him.
Treu rejected the affidavit because the attorney, Steven L. Zelig of Brentwood Legal Services, had not signed the document, and instead authorized his secretary to sign it for him. Treu found that the signature failed to conform with Code of Civil Procedure §2015.5.
The Sypraserts filed a timely appeal in December 2013. On Jan. 8, 2014, the Court of Appeal notified Treu that the affidavit had been improperly rejected, and directed him to accept it at that time.
In a letter, Treu responded to the appellate court, contending that he did not err in rejecting the affidavit, because an attorney must sign an affidavit of prejudice “by his own hand.”
The Sypraserts requested judicial notice of two prior proceedings involving the “pattern of conduct” of Treu’s denial of affidavits of prejudice due to what he considered imperfections.
The first case involved Treu’s rejecting an affidavit because counsel had misspelled Treu’s last name. Div. Eight issued an alternative writ directing Treu to either vacate his order or reconsider the affidavit and show cause as to why it should be denied. Treu vacated his order.
The vacated order did not end the matter, however, because afterwards Treu rejected the same affidavit of prejudice again, and this time because counsel had only stated a “belief” that Treu was prejudiced against his clients, without expressly asserting that Treu was prejudiced.
Section 170.6, Klein explained, requires only a statement that an attorney “believes” that he cannot receive an impartial hearing, so Treu’s order was directly contrary to the rule’s language.
On the second rejected affidavit, again Div. Eight directed Treu to vacate his order, but this time the court held that the affidavit of prejudice had satisfied the statutory requirement.
Klein noted that both of the prior proceedings involved Zelig as the attorney who was filing the affidavits of prejudice seeking a judicial officer other than Treu.
“The signature on the affidavit of prejudice was made at the direction and the authority of petitioner’s counsel. As such, the signature is valid and sufficient to support the affidavit. The order rejecting the affidavit of prejudice is an abuse of discretion in view of the specific mandate that the statute is to be liberally construed, with a view to effect its objects and to promote justice.”
The case is Syprasert v. Superior Court of Los Angeles, B253072.
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