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Court of Appeal:
Challenge to Judge Not Always Subject to Time Constraints
Fifth District Says That Where Bias or Appearance of Bias Is Alleged in Statement of Disqualification, Requirement That Statement Be Filed ‘At the Earliest Practicable Opportunity’ Does Not Apply
By a MetNews Staff Writer
A party that fails to file a statement of disqualification promptly upon learning of facts giving rise to a challenge of a judge for cause does not forfeit its right to seek disqualification where bias is alleged, the Fifth District Court of Appeal has held, granting a writ of mandate directing reinstatement of a post-judgment statement stricken by a judge as untimely because it stemmed from comments he made in court a year earlier.
Although Code of Civil Procedure §170.3(c)(1) specifies that such a statement “shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification,” that pronouncement, Justice M. Bruce Smith declared in an opinion filed Friday, is overcome in the case by §170.3(b)(2) which says:
“There shall be no waiver of disqualification if the basis therefor is either of the following: [¶] (A) The judge has a personal bias or prejudice concerning a party.”
(The other disqualifying circumstance that cannot be waived is where “[t]he judge served as an attorney in the matter in controversy, or the judge has been a material witness concerning that matter.”)
Smith reasoned that if bias cannot be waived, a challenge on that basis cannot be forfeited—or, impliedly waived— based on untimeliness, setting forth:
“We hold section 170.3, subdivision (b)(2) applies to implied waiver resulting from untimeliness.”
Effect of Opinion
The requirement of filing a statement of disqualification with dispatch remains intact, under the opinion, with respect to circumstances giving rise to a disqualification, listed in Code of Civil Procedure §170.1, other than those specified in subd. (b)(2) of §170.3. Circumstances under which a waiver is permitted include the judge having represented a party while in law practice, a lawyer in the case having been associated with the judge in practice, or the judge or a family member having a financial interest in the litigation.
Friday’s opinion comes in response to Fresno Superior Court Judge Jeffrey Y. Hamilton having struck a statement of disqualification filed by defendant North American Title Company, Inc., now known as Lennar Title, Inc., seven days after it was filed. It orders that the statement be reinstated, reviving the 10-day period (with three days remaining) within which a challenged judge may step aside, file an answer to the statement (with another judge deciding whether recusal is required) or do nothing, which is tantamount to withdrawing from the case.
In response to a previous statement of disqualification, filed by a co-defendant, Hamilton did file an answer saying:
“This responding judge respectfully submits that the reasonable person—aware of this judge’s 11+ year history on this case as recounted above, as well as his character and reputation for impartiality—would not question his impartiality.” The co-defendant was dismissed from the case, rendering that challenge-for-cause moot.
$43.5 Million Judgment
There is an Aug. 31, 2022 judgment in the case against Lennar Title for approximately $43.5 million. Comments by Hamilton that are the subject of the challenge accused the title company of playing games to avoid making payment.
As summarized by Smith:
“During oral argument, the trial judge made comments accusing petitioner and other defendants of participating in a ‘name change shell game,’ a ‘corporate game of three-card monte,’ and that they were engaged in ‘more trickery’ and ‘scheming’ to evade payment. At the time of the comments, no judgment had been entered, and issues of fraudulent transfer, alter ego, or successor liability were never presented to the court, let alone ultimately decided.”
Reasonable Persons’ Perception
Smith also wrote:
“[W]e hold the Legislature intended the prohibition of waiver under section 170.3, subdivision (b)(2) to apply to attempts to disqualify a judge on the grounds that ‘[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial’ under section 170.1, subdivision (a)(6)(A)(iii).”
The proponent of a disqualification-for-cause need not establish actual bias but only the appearance of bias.
The jurist pointed out in a footnote that “[p]rior caselaw has used the term waiver, but the doctrine being applied is one of forfeiture,” which results from having failed to assert a right timely, while a waiver is entails a knowing relinquishment of a right. “While forfeiture may be the technically correct term” Smith said, “to remain consistent with existing caselaw, we will continue to use the term waiver.”
Requirement of Writing
Opposing the writ petition was Carolyn Cortina, the named plaintiff in a class action by escrow officers, who pointed to §170.3(b)(1) which provides:
“A judge who determines himself or herself to be disqualified after disclosing the basis for his or her disqualification on the record may ask the parties and their attorneys whether they wish to waive the disqualification, except where the basis for disqualification is as provided in paragraph (2). A waiver of disqualification shall recite the basis for the disqualification, and is effective only when signed by all parties and their attorneys and filed in the record.”
Cortina argued that subd. (b)(2), taken in context, applies only where the parties agree in writing to waive a basis for disqualification. Smith responded:
“A narrow reading of the statutory language of section 170.3, subdivision (b)(2) requiring parties to assert claims of actual bias or prejudice would render it inapplicable to many instances in which the Legislature intended it to apply.”
He elaborated:
“[T]he language of section 170.3, subdivision (b)(2) unambiguously places no limitation on the type of waiver, setting forth ‘[t]here shall be no waiver of disqualification.’ (Emphasis added.) Had the Legislature wanted to limit the application of section 170.3, subdivision (b)(2) to express waiver, it could have included clarifying language to that effect. It did not.” Addressing legislative intent, Smith said: “At the time the Legislature amended section 170.3 in 1990 to prevent waiver of disqualification based on personal bias or prejudice, there was a well-established body of law based on Supreme Court precedent holding the untimely presentation of a statement of disqualification results in waiver. The Legislature’s determination to place no limiting language on the prohibition of waiver in section 170.3, subdivision (b)(2) despite well-established caselaw developing the doctrine of implied waiver, shall be interpreted to indicate its intent to prohibit all forms of waiver, including implied waiver due to untimeliness.”
Although Smith said that the conclusion he reached is based, in part, on “the developed body of caselaw discussing waiver as applied to statements of disqualification,” it appears that no other court has proclaimed that challenges based on bias or the appearance of bias need not be asserted “at the earliest practicable opportunity.”
District’s Earlier View
Friday’s decision is in contrast to that rendered by the Fifth District on Oct. 28, 2008 in Tri Counties Bank v. Superior Court. There, a different panel denied a writ sought by a party that alleged bias—insisting that the bias was so pronounced that a trial before the judge would contravene its due-process right—where the conduct of the judge forming the basis for the challenge occurred seven months before a statement of disqualification was filed.
The court held:
“A party may seek a judge’s disqualification for cause under the procedure set forth at section 170.3, subdivision (c). However, the party must do so ‘at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.’ (§ 170.3, subd. (c).) This strict promptness requirement is not to be taken lightly, as a failure to comply constitutes forfeiture or an implied waiver of the disqualification….Thus, when a statement of objection is untimely filed, it is appropriate for the trial court to order it stricken.
“During oral argument, the trial judge made comments accusing petitioner and other defendants of participating in a “name change shell game,” a “corporate game of three-card monte,” and that they were engaged in “more trickery” and “scheming” to evade payment. At the time of the comments, no judgment had been entered, and issues of fraudulent transfer, alter ego, or successor liability were never presented to the court, let alone ultimately decided.”
Previous Decision
There was a previous Court of Appeal opinion stemming from Cortina’s action against the title companies. The Fifth District on June 28, 2022, in an unpublished opinion, denied a petition for a writ of mandate sought by Doma Title of California, Inc. which filed a peremptory challenge to Hamilton within 15 days of being brought into the case.
It cited Code of Civil Procedure §170.6(a)(2) which says that “if the party has not yet appeared in the action” a §170.6 challenge must be made “within 15 days after the appearance.”
Justice Donald R. Franson Jr. wrote:
“We conclude the provision allowing a late-appearing party to make a peremptory challenge within 15 days of its appearance is subject to the general rule that a peremptory challenge must be made before trial has commenced. In other words, the provision for late-appearing parties operates only to move the deadline forward; it does not relax the deadline and allow a peremptory challenge after trial has commenced.”
Friday’s opinion comes in North American Title Company, Inc. v. Superior Court of Fresno County (Cortina), 2023 S.O.S. 1634.
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