Court of Appeal:
Private Judge Improperly Ruled After Appointment Expired
Unusual Fact Situation Underlies Dispute Over Ruling on Motion for Accounting
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed a ruling by a former presiding judge of the Ventura Superior Court, now with JAMS, who, as a privately compensated judge pro tem of the Los Angeles Superior Court continued to issue orders after her appointment had expired—including an order that was the subject of the appeal which came in response to a motion that had been withdrawn.
Under the decision by Div. Eight, appellant Lorraine T. DeWolfe is not bound by a determination made by retired Judge Melinda A. Johnson that an accounting provided by ex-husband Christopher T. DeWolfe, co-founder of the social networking service MySpace, was “sufficient.”
Justice Dorothy Kim authored the unpublished opinion. It was signed by Justice Carl H. Moor and the Acting Presiding Justice Lamar Baker. Baker added a concurring opinion in which he accused Johnson of continuing to make rulings after her appointment had terminated in order to garner more fees.
Then-Los Angeles Superior Court Judge Debre Katz Weintraub (now retired) on May 16, 2018, ordered, pursuant to a stipulation of the parties (who were divorced in 2014), that Johnson serve as a privately compensated judge pro tem pursuant to California Rules of Court, rule 2.831, with a termination date of May 1, 2019. On Oct. 16, 2019, Lawrence P. Riff, then-supervising judge of the family law courts, reappointed Johnson, with that appointment to end on April 1, 2020, except as to any motions made prior to that date.
Request for Accounting
One such motion was Lorraine DeWolfe’s request for an order (“RFO”) for an accounting. Under a marital settlement agreement, she had held a 10 percent interest in stock held by her ex-husband which he sold for $15,818,679.14, and she was given 10 percent of that, but suspected there were other funds to which she had an entitlement.
Her RFO was made on April 30, 2019. On June 26, 2020, the ex-wife filed a notice of withdrawing her RFO, saying that that this was “solely because she does not have access to legal and accounting fees to proceed.”
Christopher DeWolfe protested that this was “effectively forum shopping” and insisted that Johnson had not lost jurisdiction. On October 14, 2020, he filed an RFO to restore his former spouse’s RFO.
Johnson granted Christopher DeWolfe’s RFO.
Court Intervention Sought
Lorraine DeWolfe sought a determination by Riff that, given her withdrawal of the RFO for an accounting, Johnson had no powers to decide matters after April 1, 2020. She asked that he enjoin further participation in the case by Johnson.
Riff determined on April 21, 2021, that “Department 2 of the Los Angeles Superior Court, in which the Supervising Judge of the Family Law Department sits, is not the appropriate forum for Petitioner’s claims and does not have jurisdiction to grant the relief requested by Petitioner.”
The ex-wife appealed from Riff’s ruling—saying that “[i]t is well established that refusing to exercise discretion constitutes an abuse of discretion reviewable by the Court of Appeal”—and from Johnson’s declaration that an adequate accounting had been made, set forth in a Nov. 1, 2021 order denying the accounting as moot.
Recitation in Opinion
The Court of Appeal’s opinion, at the outset, recites:
“APPEAL from an order of the Superior Court of Los Angeles County, Lawrence P. Riff, Judge, and Melinda A. Johnson, Judge (Retired Judge of the Ventura Sup. Ct.). Reversed.”
However, in a footnote, Kim indicated that it is only Johnson’s order that is reversed. She said:
“Because we hold below that Judge Johnson did not have jurisdiction to rule on Lori’s accounting RFO because Lori’s notice withdrawing her accounting RFO was effective when made on June 26, 2020, Lori’s challenge to Judge Riff’s ruling is moot.”
Invalidating Johnson’s order, Kim wrote:
“We hold that Lori’s notice withdrawing her accounting RFO was effective when made on June 26, 2020. Judge Johnson’s ruling granting Chris’s restoration RFO tacitly supports our holding. That is, if Lori’s withdrawal of her accounting RFO had not been effective when made, Judge Johnson would not have later had to order that RFO restored.”
“Chris does not cite, and we have not found, any case that holds that a party needs a trial court’s approval to withdraw a motion. Because Lori withdrew her accounting RFO, Judge Johnson did not have jurisdiction to rule on it. Chris’s restoration RFO did not restore Lori’s withdrawn accounting RFO and Judge Johnson’s jurisdiction because Chris filed it after April 1, 2020, the date Judge Johnson’s appointment terminated under the parties’ stipulation.”
Issues Not Addressed
Having found in favor of Lorraine DeWolfe, Kim found no need to address some of the issues raised in her briefs, including an assault on the private-judge system.
Edward McLean Lyman III of The Cochran firm said in the opening brief:
“…Judge Johnson was assigned to the case under Rules of Court, rule 2.380, et seq., which allows for the parties to stipulate to privately compensate an attorney, to temporarily serve as an official superior court judge, and adjudicate cases. Therefore, all of Judge Johnson’s proceedings were official superior court proceedings held on the record and open to the public.
“Indeed, the only thing private was how Judge Johnson was compensated. Lori never agreed in writing to a rate of compensation for Judge Johnson. Chris was the only one who paid Judge Johnson. In fact, Judge Johnson, who is obligated to provide disclosures, withheld that she serves on multiple other cases with Chris’ attorneys of record from Hersh Mannis LLP.”
The rate of compensation was $650 per hour.
Lyman presented these questions, that were not answered (though the concurring opinion touched on them):
“1. As a threshold matter: does Rule 2.830, et seq. violate Article VI, § 19 of California’s Constitution,7 which provides a non-delegable duty to the Legislature to determine judicial compensation?
“2. As a threshold matter: does Rule 2.830 et seq. violate Article VI, § 21, which does not expressly authorize parties litigant to privately compensate an official temporary judge?
“3. Did privately compensated judge pro tem Melinda A. Johnson lack jurisdiction ab initio because she failed to prescribe the oath of office?
“4. Did privately compensated judge pro tem Melinda A. Johnson lack jurisdiction because she withheld from disclosing that she has been appointed as a privately compensated judge pro tem to a number of cases with Chris’ counsel, including Neal Hersh, Adam Lipsic, and Hersh Mannis LLP?”
In his concurring opinion, Baker said:
“I write separately because this appeal shines some light on the use of stipulated temporary judges, and what is illuminated may warrant broader reflection.
“The parties in this action stipulated to the use of a privately compensated temporary judge. Under the terms of the temporary judge’s appointment—of which the judge herself was well aware—the judge was to be paid on an hourly basis solely by respondent Christopher DeWolfe. When the temporary judge was appointed, she did not take and subscribe the oath of office. (Cal. Rules of Court, rule 2.831(b).) When Christopher DeWolfe substituted in new counsel during the proceedings, the temporary judge did not disclose the newly substituted law firm had served as counsel in other matters over which the judge previously presided. And, as the opinion for the court catalogs, when Lorraine DeWolfe withdrew her motion for an accounting, the temporary judge granted Christopher DeWolfe’s application to “restore” the motion to the calendar, exceeded the contemplated term of her stipulated appointment, and decided the motion in Christopher DeWolfe’s favor—all of which increased the compensation the temporary judge was due.
“The use of stipulated temporary judges is an established practice, and I do not doubt the practice has some advantages. But from what I see in this appeal, it may be time for some re-examination of the rules and procedures in place to permit the practice, including the extent to which existing rules and procedures are being followed.”
Christopher DeWolfe contended in his brief on appeal, signed by Neal Raymond Hersh, Adam Philip Lipsic, and Andrew Stein of the Beverly Hills firm of Hersh Mannis LLP:
“Lori’s attempt to withdraw the accounting RFO without prejudice to improve it and have another judge hear it reeks of forum-shopping gamesmanship.”
The lawyers added:
“Gamesmanship and disingenuousness drove Lori’s requested withdrawal. She cannot show Judge Johnson abused her discretion by rejecting it.”
Baker said in a footnote:
“I believe the temporary judge’s actions were an attempt to prevent Lorraine DeWolfe from engaging in what the judge saw as forum shopping, but that is not the only inference an observer could draw from the judge’s decision to determine the withdrawn motion.”
On July 26, 2021, the Court of Appeal sent a letter querying of the appellant’s counsel the basis for appealability. It said, in part: “After reviewing appellant’s civil case information statement filed on July 20, 2021, it appears the appeal filed on June 21, 2021 was taken from a nonappealable order. Appellant is hereby requested to demonstrate in writing why the appeal should not be dismissed as having been taken from a nonappealable order, within 15 days of the date of this notice.”
Lyman responded, with respect to Riff’s April 21, 2021 order, that “it is well established that an order denying a request for injunctive relief is appealable.”
“Here, Supervising Judge Riff sets his own rules with regard to assigning privately compensated judges pro tern, issues his own assignment orders, sets his own expiration dates for their terms, but refuses to enforce his own rules and orders, thereby leaving Lori without any remedy at law, other than to take an appeal.
“This Court has inherent jurisdiction and jurisdiction expressly provided by the Legislature as set forth in Code Civ. Proc. § 904.1(a)(6). Otherwise, privately compensated judge pro tern Johnson will continue to act, without any authority, which she has continued to do, up until the date Lori timely filed her notice of appeal initiating these proceedings.”
The code section permits an appeal from “an order…refusing to grant…an injunction.”
Lyman did not address the appealability of Johnson’s order denying the request for an accounting.
The case is Marriage of DeWolfe, B313469.
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