Monday, September 19, 2016
Peremptory Disqualification of Judge Does Not Require Transfer of Related Case—Court
By a MetNews Staff Writer
A judge’s disqualification under Code of Civil Procedure §170.6 does not necessarily require that a related case be transferred to another judge, the Court of Appeal for this district ruled Friday.
Div. Five granted a writ of mandate, returning a family law case involving Mark and Peymaneh Rothstein to Los Angeles Superior Court Judge Christine Byrd.
The Rothsteins have been in divorce proceedings since January 2014. The court granted a stipulated judgment of dissolution of marriage in January of this year, reserving jurisdiction over other issues.
Peymaneh Rothstein is a film producer who, according to the company’s website, is the founder and chief executive of Precious Time, a Virginia-based provider of onsite childcare for corporations. She filed an income and expense declaration listing a $50,000 loan from Precious Time to her husband as a separate property asset of hers.
Subsequent to the stipulated judgment, there were further proceedings that resulted in sanctions imposed by the judge against the ex-wife. A month later, Precious Time sued Mark Rothstein for breach of contract and bad faith, claiming he owed a balance due of $50,000 on a $100,000 loan that the company had given him based on an oral agreement.
After Mark Rothstein filed a notice of related case, the family law and civil cases were found to be related by the supervising judge, and the civil case was transferred to Byrd. Precious Time’s lawyer then filed a §170.6 challenge to Byrd, who ordered that both cases be transferred to Judge Tamara Hall.
Mark Rothstein’s counsel then moved for reconsideration, arguing that the challenge filed in the civil case formed no basis for transfer of the divorce case, that §170.6 precluded transfer of the divorce case because Byrd had already made rulings there and that because Peymaneh Rothstein was the sole owner of Precious Time, the civil case was really a “continuation” of the family law matter.
Byrd denied reconsideration, and declined to change her ruling in response to the Court of Appeal’s order to show cause.
Justice Lamar Baker, writing for the Court of Appeal, said Byrd was in error.
“We hold a section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge,” he wrote.
He cited a concurring opinion by Superior Court Judge Sanjay Kumar, sitting on assignment, in Pickett v. Superior Court (2012) 203 Cal.App.4th 887. The court there recognized the viability of the “continuation” rule, which holds in effect that a party cannot bring a new action on an issue already in litigation in order to raise a §170.6 challenge that could not be made in the earlier case.
The Pickett court, however, concluded that the new suit was not a continuation of an earlier one, saying the rule applies only where the new case is really a “later stage” of litigation between the same parties, or arises “out of conduct in or orders made” in the earlier case.
Kumar suggested in his concurrence, however, that in cases where the continuation rule does not apply, there is no requirement that a valid §170.6 challenge in a later case force the transfer of an earlier case to another judge.
Baker agreed with Precious Time that the civil case was not a continuation of the family law action under Pickett. But he agreed with Mark Rothstein that Byrd’s disqualification in the civil case does not extend to the earlier action.
“We see nothing in section 170.6 that compels such a result,” the justice wrote. “To the contrary, the judicial administration goals the related case rules ordinarily further must yield to the statutory policy, expressed in section 170.6 itself, of permitting parties a peremptory challenge but preventing use of such a challenge that would result in transfer of a case to a new judge after the currently assigned judge has ruled on disputed matters of fact relating to the merits of a case.”
Rejecting Precious Time’s arguments that having the cases heard by different judges was contrary to the principles of judicial economy and avoiding inconstant rulings, Baker said the judicial economy claim “gets things backward” because having the ongoing family law case heard by a new judge was likely “less optimal” than leaving it where it was.
There is no possibility of inconsistent rulings, he said, because family law rules preclude any other department of the court from making orders affecting the division of property in the divorce action.
Attorneys on appeal were Neal R. Hersh, Jeff M. Imerman, and Teresa Y. Lin of Hersh Mannis for Mark Rothstein and Jarrette & Walmsley’s Robert R. Walmsley and Marlea F. Jarrette for Precious Time.
The case is Rothstein v. Superior Court (Rothstein), 16 September 2016.
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