Monday, August 21, 2017
Lawyers Seek Disqualification of Judge Without Viable Grounds—C.A.
By a MetNews Staff Writer
The Third District Court of Appeal on Friday spurned the bid of two attorneys to disqualify a judge who had bumped them from a case because they repeatedly failed to show up for a sentencing hearing, but reinstated them after the Court of Appeal said it was inclined to issue a peremptory writ ordering that the disqualification order be vacated.
The judge is Tamara Mosbarger of the Butte Superior Court. Seeking to remove her from the case are Scott Wippert and Robyn Bramson of the Oxnard law firm Wippert & Bramson,
They were substituted in as counsel for Lorayna Gonsalves after she was convicted of first degree residential robbery and home invasion robbery, about one week before she was to be sentenced. They sought, and were granted a continuation so that they could prepare a motion for new trial.
The duo sought a further continuation based on being otherwise engaged on the new date set for sentencing and did not file the new-trial motion by the deadline, which had not been lifted.
Two days before the re-rescheduled hearing date, they sought a third continuance based on unavailability. Mosbarger set a new hearing date and ordered that the lawyers show up.
They didn’t. They sent another lawyer who was not prepared to argue.
Prosecution’s Right Cited
Over Gonsalves’s objection, Mosbarger disqualified the lawyers, citing the prosecution’s right to get the case resolved.
The appeals court on May 22, 2015 issued an alternative writ, giving the Superior Court a month to file a return. Instead, Mosbarger scrapped her order.
The lawyers then filed a motion to disqualify her for cause. It was heard by Glenn Superior Court Judge Peter Twede, on assignment by the chief justice, who denied the motion, and Gonsalves sought a writ.
Presiding Justice Vance Raye wrote the opinion denying the writ. It was not certified for publication.
“The record indicates the trial judge was never intemperate and her judicial demeanor was never inappropriate,” Raye wrote.
Transcript Belies Assertion
He went on to say:
“Wippert eventually appeared in the courtroom and at one point claimed the trial judge was not allowing him to make his record, but the hearing transcript shows the trial judge allowed Wippert to speak for more than 40 minutes.
“The trial judge granted many continuances until she became concerned about the ongoing delay with no clear end in sight.”
He said that at one point, Mosbarger imposed sanctions on Wippert and Bramson, but had second thoughts and rescinded them on her own motion, Raye noted. He said that an order for them to appear included a threat of arrest if they did not do so but the evidence showed that she did not direct that such language be included.
“Based on our independent review of the record, it has not been established that the trial judge would not be able to be impartial toward Gonsalves or her attorneys of record,” Raye said. “There is no basis for disqualification and no showing that Gonsalves has been denied due process.”
The case is Gonsalves v. Superior Court, C079009.
Copyright 2017, Metropolitan News Company