Metropolitan News-Enterprise


Friday, September 28, 2018


Page 1


Judge’s Nondisclosure of Property Wasn’t Ground for Disqualification—C.A.


By a MetNews Staff Writer


The First District Court of Appeal has reversed an order disqualifying a judge for not disclosing his ownership of a house on the same coast as the parties’ properties, because such ownership could not give rise to a reasonable doubt as to his impartiality.

San Francisco Superior Court Judge Jeffrey S. Ross, on assignment to Div. Three, wrote Wednesday’s opinion, which was not certified for publication.

Mendocino Superior Court Judge Clayton L. Brennan was assigned a case brought by attorney Judith Kahn and Robert Kirby, residents of the Mendocino coastline, against their neighbors, Louise and Tracy Hansen, who operate a cottage-rental business from their property. Kahn and Kirby sought declaratory relief, alleging that the Hansens’ business conflicted with the covenants and restrictions governing their subdivision.

Brennan uses his house on the same coastline as a vacation rental property when he stays at his residence in Ukiah. His beachfront property is not part of the Hansens’ and Kahn’s subdivision.

He did not disclose the property to the parties, stating it was not “materially different from any other situation wherein a bench officer owns real property and the parties before that officer are litigating a dispute involving the proper use of their real property.”

Disqualification Order

Contra Costa Superior Court Judge Susanne M. Fenstermacher disagreed with Brennan. She was the judge assigned to hear Kahn’s third disqualification-for-cause motion under CCP §170.1, after her first two motions had been denied.

Fenstermacher opined that §170.1(a)(6)(A)(iii) applied to the lack of disclosure. That section requires disqualification where “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

She reasoned that, had Brennan disclosed his ownership, “the parties would have heard information the Judge considered which would have provided them the chance to consider if there is a basis for [peremptory] disqualification pursuant to Code of Civil Procedure [section] 170.3(c). In this case the Plaintiffs were not afforded that opportunity.[¶]...Plaintiffs would also have had the opportunity to either waive disqualification or bring a motion pursuant to Code of Civil Procedure [section] 170.3(c)(1).”

Ross’s Opinion

Ross wrote:

“To require disqualification under section 170.3(c)(1), there must be a legitimate claim that the judge should be disqualified pursuant to section 170.1. On the record before us, Judge Brennan does not have any financial or other interest or relationship that would require section 170.1 disqualification.”

He quoted the California Judicial Conduct Handbook, which reads:

“For example, in a landlord-tenant dispute, the fact that a judge owns rental property need not be disclosed and could not be a basis for the judge to be disqualified, provided, of course, that the ownership of rental property has not caused the judge to become biased in such cases, which would require the judge to recuse, not just disclose.”

The case is Hansen v. Superior Court, A154998.


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