Opinion
19-CV-488 TWR (NLS) 19-CV-836 TWR (NLS) 19-CV-2065 TWR (NLS) 19-CV-2178 TWR (NLS) 19-CV-2320 TWR (NLS) 19-CV-2462 TWR (NLS) 19-CV-2463 TWR (NLS) 20-CV-47 TWR (NLS) 20-CV-50 TWR (NLS) 20-CV-52 TWR (NLS) 20-CV-55 TWR (NLS) 20-CV-57 TWR (NLS) 20-CV-59 TWR (NLS) 20-CV-61 TWR (NLS) 20-CV-205 TWR (NLS) 20-CV-206 TWR (NLS) 20-CV-207 TWR (NLS) 20-CV-305 TWR (NLS) 20-CV-725 TWR (NLS) 20-CV-857 TWR (NLS) 20-CV-866 TWR (NLS) 20-CV-950 TWR (NLS) 20-CV-951 TWR (NLS) 20-CV-952 TWR (NLS) 20-CV-999 TWR (NLS) 20-CV-1001 TWR (NLS) 20-CV-1002 TWR (NLS) 20-CV-1004 TWR (NLS) 20-CV-1005 TWR (NLS) 20-CV-1044 TWR (NLS) 20-CV-1087 TWR (NLS) 20-CV-1255 TWR (NLS) 20-CV-1826 TWR (NLS) 20-CV-2042 TWR (NLS) 20-CV-2052 TWR (NLS) Bankruptcy 17-6928 MM7
06-04-2021
IN RE LISA KAYE GOLDEN Debtor. v. RICHARD KIPPERMAN, Appellee. LISA KAYE GOLDEN, Appellant, Adversary No. 18-90021 MM
Honorable Todd W. Robinson United States District Judge
ORDER (1) SPREADING MANDATES; (2) DENYING MOTION TO RECUSE; AND (3) DISMISSING ACTIONS FOR FAILURE TO PAY FILING FEE AND COMPLY WITH THE COURT'S ORDER
Honorable Todd W. Robinson United States District Judge
Presently before the Court are the following matters: (1) the Mandates issued by the Court of Appeals for the Ninth Circuit in each of the above-numbered actions; (2) the Motion to Recuse (Case No. 19-CV-836 ECF No. 32), filed by Appellant/Debtor Lisa Kaye Golden; and (3) the Order issued by the Hon. Dana M. Sabraw on September 30, 2020 and the Order issued by this Court on December 2, 2020 requiring Ms. Golden to pay the filing fee in the above-numbered actions.
All references herein to the “above-numbered actions” refer to Southern District of California Case Numbers: 19-CV-488 TWR (NLS), 19-CV-836 TWR (NLS), 19-CV-2065 TWR (NLS), 19-CV-2178 TWR (NLS), 19-CV-2320 TWR (NLS), 19-CV-2462 TWR (NLS), 19-CV-2463 TWR (NLS), 20-CV-47 TWR (NLS), 20-CV-50 TWR (NLS), 20-CV-52 TWR (NLS), 20-CV-55 TWR (NLS), 20-CV-57 TWR (NLS), 20-CV-59 TWR (NLS), 20-CV-61 TWR (NLS), 20-CV-205 TWR (NLS), 20-CV-206 TWR (NLS), 20-CV-207 TWR (NLS), 20-CV-305 TWR (NLS), 20-CV-725 TWR (NLS), 20-CV-857 TWR (NLS), 20-CV-866 TWR (NLS), 20-CV-950 TWR (NLS), 20-CV-951 TWR (NLS), 20-CV-952 TWR (NLS), 20-CV-999 TWR (NLS), 20-CV-1001 TWR (NLS), 20-CV-1002 TWR (NLS), 20-CV-1004 TWR (NLS), 20-CV-1005 TWR (NLS), 20-CV-1044 TWR (NLS), 20-CV-1087 TWR (NLS), 20-CV-1255 TWR (NLS), 20-CV-1826 TWR (NLS) 20-CV-2042 TWR (NLS), 20-CV-2052 TWR (NLS).
I. Ninth Circuit Mandates
The above-numbered actions are some of the many bankruptcy appeals and civil cases filed by Ms. Golden, proceeding pro se, challenging orders entered in Southern District of California Bankruptcy Case No. 17-6928 MM7 and related Adversary No. 18-90021 MM. In each of the above-numbered actions, Ms. Golden filed an appeal to the United States Court of Appeals for the Ninth Circuit, which was subsequently dismissed for failure to prosecute. On May 10 and 11, 2021, the Ninth Circuit issued the Mandate in each of the above-numbered cases. These Mandates are spread and this Court resumes jurisdiction over each of the above-numbered actions.
II. Motion to Recuse
On April 26, 2021, Ms. Golden filed the Motion to Recuse. (Case No. 19-CV-836 ECF No. 32.)
A. Legal Standard
Requests for recusal of district court judges are governed by 28 U.S.C. § 455 and 28 U.S.C. § 144. First, a judge may recuse sua sponte under 28 U.S.C. § 455(a), which provides: “[A]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Second, a litigant may move to recuse a trial judge under 28 U.S.C. § 144:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
Ms. Golden moves for recusal under both statutes. “The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: Whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (per curiam)). “Under § 455(a), impartiality must be ‘evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance.'” United States v. Carey, 929 F.3d 1092, 1104 (9th Cir. 2019) (quoting Liteky v. United States, 510 U.S. 540, 548 (1994)). Section 455(a) is “limited by the ‘extrajudicial source' factor which generally requires as the basis for recusal something other than rulings, opinions formed or statements made by the judge during the course of trial.” United States v. Holland, 519 F.3d 909, 913-14 (9th Cir. 2008). Some “matters not ordinarily sufficient to require a § 455(a) recusal” include: “[r]umor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters” and “prior rulings in the proceeding, or another proceeding, solely because they were adverse.” Clemens v. U.S. Dist. Ct. for Cent. Dist. of California, 428 F.3d 1175, 1178-79 (9th Cir. 2005) (quotation omitted). “[A] judge has as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require.” Id. (quotation omitted).
Although the substantive standard for assessing motions to recuse is the same under both statutes, the procedures differ. For a § 144 motion, the judge must first assess whether the affidavit is timely before assessing the legal sufficiency of the affidavit. If the affidavit is timely and legally sufficient, the duty of the judge is to “proceed no further” in the case and refer the motion to another judge. United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978). To be legally sufficient, the affidavit must meet three requirements: “it must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits … [based] on … (3) the [source of the facts and] substantiality of the support given by these facts to the allegation of bias.” Id. at 739-40. A district court's denial of a motion to recuse is reviewed for abuse of discretion. See Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993).
B. Timeliness
Section 144 requires a “timely” affidavit. 28 U.S.C. § 144. Although § 455 does not set out an explicit timeline, “[i]it is well established that a motion to disqualify or recuse a judge under 28 U.S.C. § 144 [as well as] … § 455 must be made in a timely fashion.” Preston v. United States, 923 F.2d 731, 732-33 (9th Cir. 1991) (quotation omitted).
The Motion to Recuse was filed on April 26, 2021. As discussed below, the primary basis for recusal alleged by Ms. Golden concerns statements made by the Court in an Order and Judgment Affirming Bankruptcy Court issued on March 31, 2021 in a different bankruptcy appeal. (“March 31, 2021 Order, ” Case No. 20-CV-102 ECF No. 36.) Because the Motion to Recuse was filed less than a month after the March 31, 2021 Order, the Court finds that it is timely.
C. Merits of the Allegations
Ms. Golden primarily contends that recusal is warranted because, according to Ms. Golden, in the March 31, 2021 Order the Court “states that Golden ‘has a criminal record' and fails to (1) note the bankruptcy court's ruling that [appellant] Rogers has a criminal record and (2) fails to acknowledge that Golden's alleged ‘criminal record' was based on a fake allegation by the purported ‘victim' and was expunged almost a decade prior….” (Case No. 19-CV-836, ECF No. 32 at 3.)
The referenced portion of the March 31, 2021 Order states in relevant part:
Appellant reproduced in whole the following “Undisputed Facts, ” which Appellant does not dispute for purposes of this appeal, (see AOB at 12 n.2), from [Bankruptcy] Judge Mann's Final Pretrial Order: ….
3. Golden is 56 years old with an expunged criminal record that is still open to the public. Rogers was aware of Debtor's earlier felony convictions for attempted murder and falsification of court records early in their relationship. Golden has been involved in a lengthy and contentious legal battle with the father of her daughter. She was charged in 2001 with attempted murder. She later pled guilty to that charge. While she was out on bail on the attempted murder charge, she was charged with another felony for filing a false document with the court, a violation of Cal. Penal Code § 134. She pled guilty to that charge as well. Golden has been deemed a “vexatious litigant” in state court.(Case No. 20-CV-102 ECF No. 36 at 6-7.) In the quoted portions of the March 31 Order, the Court reproduced the entirety of the “Undisputed Facts” section of the Bankruptcy Court's Final Pretrial Order, without alteration or omission. (See id. at 6-13.) Other than quoting the Bankruptcy Court, this Court did not reference Ms. Golden's expunged criminal record. Ms. Golden was the Appellee in the appeal of the adversary proceeding between Ms. Golden and Rogers that resulted in the March 31 Order. Ms. Golden failed to file a responsive brief in that appeal despite being granted an extension of time to do so. (Case No. 20-CV-102 ECF No. 34.) Indeed, no party to that appeal challenged the Bankruptcy Court's “Undisputed Facts.”
When acting in an appellate capacity in a bankruptcy appeal, the Court only addresses the issues and disputes raised by the parties. If no issue or dispute is raised, then the Court relies upon the factual findings of the Bankruptcy Court. Cf. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim....”). Moreover, as Ms. Golden recognizes in her Motion to Recuse (Case No. 19-CV-836 ECF No. 32 at 9), this Court's March 31 Order affirmed the Bankruptcy Court's decision ostensibly favoring Ms. Golden (who was the Appellee).This Court quoting from an undisputed portion of the Bankruptcy Court's Pretrial Order is not “an extrajudicial source” and did not prevent Ms. Golden from receiving “a fair decision on the merits.” Azhocar, 581 F.2d at 738. Therefore, it does not meet the substantive standard for recusal.
Rogers appealed the March 31, 2021 Order to the Ninth Circuit, where it is currently pending. (Case No. 20-CV-102 ECF No. 38.)
Ms. Golden's next basis for recusal is again based on language in the March 31 Order, specifically a statement that Chapter 7 Trustee Richard Kipperman (Ms. Golden's fellow Appellee in the appeal) was “the real party in interest” in the Bankruptcy action. (See Case No. 19-CV-836 ECF No. 32 at 3.) Once again, Ms. Golden is referencing a portion of the March 31 Order that directly quotes language in the Bankruptcy Court's Pretrial Order that was uncontested by any party who chose to file a brief in the appeal. (See Case No. 20-CV-102 ECF No. 36 at 4.) Once again, if Ms. Golden had a material complaint about the language used by the Bankruptcy Court, then she should have raised the issue when given the opportunity-including an extension of time-in that appeal. Once again, this does not meet the substantive standard for recusal.
Ms. Golden's next basis for recusal relates to the denial of Ms. Golden's motion to proceed in forma pauperis by the Hon Dana M. Sabraw and this Court's denial of Ms. Golden's motion to reconsider that decision. (See Case No. 19-CV-836 ECF Nos. 6 & 16.) Ms. Golden contends that requiring her to pay the $298 filing fee is a “discriminatory condition” because “this [is] a bankruptcy action, Golden [is] permanently disabled and her status as a pro se because she cannot afford an attorney.” (Case No. 19-CV-836 ECF No. 32 at 7.) As discussed in Judge Sabraw's Order denying Ms. Golden's motion to proceed in forma pauperis (see Case No. 19-CV-836 ECF No. 6 at 306), the standard for in forma pauperis motions is whether the movant alleges “with some particularity, definiteness and certainty” that “the affiant cannot pay the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). Judge Sabraw found that Ms. Golden did not satisfy that standard, and this Court found that Ms. Golden failed to demonstrate that reconsideration of that decision was warranted. “Adverse rulings do not constitute the requisite bias or prejudice” for recusal. Azhocar, 581 F.2d at 739; see also Holland, 519 F.3d at 913-14.
Finally, Ms. Golden contends that she is not receiving the Court's orders via U.S. Mail service in a timely manner. (See Case No. 19-CV-836 ECF No. 32 at 10-11.) On February 7, 2020, Judge Sabraw granted Ms. Golden viewing access (though not filing access) to the Court's CM/ECF system, so she has the authorization to view her cases electronically. (See, e.g., Case No. 19-CV-836 ECF No. 6.) Moreover, the Court has reviewed the three examples of purportedly delayed mailing attached to the Motion to Recuse and finds that Ms. Golden has shown no prejudice from any delay in the processing of mail service of these documents. (Case No. 19-CV-836 ECF No. 32 at 27 (attaching to the Motion to Recuse a Notice of Appeal filed by Ms. Golden in an appeal that was subsequently dismissed by the Ninth Circuit for failure to prosecute, see Case No. 21-CV-185), 28-29 (attaching to the Motion to Recuse two Orders which were appealed by Ms. Golden; those appeals were subsequently dismissed by the Ninth Circuit for failure to prosecute, see Case Nos. 21-CV-336 & 21-CV-338).)
The Court finds that Ms. Golden has failed to satisfy the substantive standard for recusal under 28 U.S.C. § 455 and 28 U.S.C. § 144. Accordingly, the Motion to Recuse is DENIED. (Case No. 19-CV-836 ECF No. 32.)
III. Orders Requiring Payment of the Filing Fee
As discussed above, Judge Sabraw ordered Ms. Golden to pay the filing fee in the above-numbered actions on September 30, 2020. (See, e.g., Case No. 19-CV-836 ECF No. 6.) On December 2, 2020, this Court denied a motion to reconsider that decision. (See, e.g., Case No. 19-CV-836 ECF No. 16.) This Court's December 2, 2020 Order concluded by stating: “On or before December 31, 2020, Ms. Golden SHALL PAY in full the outstanding filing fees in [the above-numbered cases]. Absent extraordinary circumstances, no further extensions will be granted. Should Ms. Golden fail timely to pay the full filing fee in any of her pending cases, such cases will be dismissed without prejudice and without further Order of the Court.” (See, e.g., Id. at 10-11 (emphasis in original).)
The docket reflects that Ms. Golden has not paid the filing fee in any of these actions, has not subsequently filed a renewed motion to proceed in forma pauperis, and has not otherwise declared under penalty of perjury that her financial circumstances have changed such that a fee waiver is now appropriate. Accordingly, the Court DISMISSES WITHOUT PREJUDICE each of the above-number actions for failure to pay the requisite filing fee and for failure to comply with the Court's December 2, 2020 Order. See S.D. Cal. Civ. L.R. 83.1(a); see also Fed. R. Bankr. P. 8003(a)(3)(C) (“The notice of appeal must . . . be accompanied by the prescribed filing fee.”); 28 U.S.C. § 1930(c) ($5 appeal fee); Bankruptcy Court Miscellaneous Fee Schedule item 14 ($293 for appeal). All other pending motions in the above-numbered actions are DENIED AS MOOT. The Clerk of the Court shall close the file in each of the above-numbered actions.
IT IS SO ORDERED.