Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Jacqueline M. Stern, Judge.
McINTYRE, J.
In this sexual harassment case, juries have twice awarded Talma (Peggy) Noland and five other former employees of Ralphs Grocery Company (Ralphs) substantial punitive damages. (We refer to Noland and the five other former employees who are not parties to this appeal as Plaintiffs.) After two appeals addressing the propriety of the punitive damage awards, we remanded the matter to the trial court for the specific purpose of entering judgment. On remand, the trial court entered judgments for Plaintiffs as directed by this court, who then moved to vacate the judgments as void. Noland appeals from the denial of that motion. (Code Civ. Proc., § 473, all undesignated statutory references are to this code.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference our prior opinion in Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204 (Gober II). Accordingly, as the parties are fully familiar with the facts and procedural background as set forth in Gober II, we recap them only as necessary to provide context for the issues in this appeal.
This case was first tried before the Honorable Joan P. Weber, with a jury awarding Plaintiffs compensatory and punitive damages. In the first appeal of this matter, we concluded (among other things) that Judge Weber properly granted Plaintiffs a new trial on the punitive damages phase based on jury misconduct and remanded the matter for a retrial on the amount of punitive damages. (Finton v. Ralphs Grocery Co. (May 30, 2000, D031670) [nonpub. opn.].) Judge Weber then recused herself from the retrial because one of her husband's partners represented a party on appeal and the case was assigned to the Honorable Michael M. Anello.
During the course of the subsequent proceedings, Plaintiffs filed three statements of disqualification against Judge Anello, which he struck as insufficient. We summarily denied Plaintiffs' petitions for a writ of mandate as to each order. The matter ultimately proceeded to trial and a second jury awarded each of the six plaintiffs $5 million in punitive damages. Ralphs thereafter moved for judgment notwithstanding the verdict (JNOV) and a new trial on the ground the punitive damage awards were excessive. The trial court denied the JNOV motion, but vacated the judgments and conditionally granted a new trial as to any plaintiff who did not consent to an award of punitive damages equal to 15 times her compensatory damage recovery.
As relevant here, Ralphs appealed the vacated judgments and challenged the constitutional propriety of the amount of the punitive damage awards by appealing the court's order denying its request for JNOV. Among other things, we concluded that the latter challenge was not properly brought by such an appeal, and affirmed the trial court's order conditionally granting a new trial on the amount of the punitive damages and dismissed Ralphs' purported appeal from the vacated judgment. (Gober II, supra.)
In January 2005, as part of the appeal in Gober v. Ralphs Grocery Company (2005) ___ Cal.App.4th ___, review granted July 27, 2005, S134279, and cause transferred to Court of Appeal, Fourth Appellate District, Division One, with directions (Gober I), Plaintiffs filed, under seal, a "Motion for Order Directing That Any Further Trial Court Proceedings Be Heard Before an Out-of-County Trial Judge" (the Disqualification Motion), citing subdivision (c) of section 170.1 as authority for their motion. We reviewed the merits of the Disqualification Motion and denied it; however, we stated "[u]pon remand this matter is to be assigned to a San Diego Superior Court trial judge other than Judge Anello."
All parties sought review of Gober I. The Supreme Court denied Plaintiffs' petition seeking review of our holding that the trial court had the power to grant JNOV on the amount of punitive damages. As part of their argument, Plaintiffs detailed the evidence that Judge Anello had excluded during the retrial. The court granted Ralphs' petition and transferred the matter to us for reconsideration in light of Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159.
In Gober II, we concluded that the amount of punitive damages awarded by the second jury violated federal due process principles, the maximum award consistent with constitutional principles was a ratio between punitive and compensatory damages set at 6 to 1, and remanded this matter to the trial court for the purpose of entering judgment for each plaintiff. (Gober II, supra, 137 Cal.App.4th at pp. 223-224.) We rejected Plaintiffs' argument that allegedly erroneous evidentiary rulings by Judge Anello made it unjust to decide the constitutionality of the punitive damage awards on appeal. (Id. at p. 215.)
On remand, the matter was assigned to the Honorable Jacqueline M. Stern. Among other things, Plaintiffs sought to vacate the yet to be entered judgment as void. The trial court denied the motion, noting that a final judgment had not been entered. The trial court entered judgments for Plaintiffs and they again moved to vacate the judgments as void. They argued that Judge Anello's conduct resulted in his disqualification and rendered his rulings and orders void. Thus, they asserted that the judgments should be vacated and the punitive damages issues be tried anew.
The trial court refused to consider evidence of Judge Anello's alleged disqualification, based upon the doctrines of "stare decisis" and "law of the case." Noland, alone, appealed from the order. Noland also joined the other Plaintiffs in seeking an award of attorney fees. The trial court awarded over $7 million in attorney fees and Plaintiffs filed a separate appeal to challenge this order.
DISCUSSION
As a preliminary matter, Ralphs argues that Noland's appeal should be dismissed because it is inconsistent with her acceptance of the trial court's award of attorney fees, a benefit of the judgment she seeks to set aside. (Lee v. Brown (1976) 18 Cal.3d 110, 114 [one who accepts the benefits of a judgment cannot thereafter attack the judgment by appeal].) Noland raises a number of procedural arguments in opposition to this request, including that Ralphs did not raise this issue below and there was no way of separating her claim for attorney fees from the claims of the other Plaintiffs. While we find Ralphs's argument potentially dispositive, we decline to dismiss the appeal on this basis.
Noland argues that the trial court erred in denying her motion to vacate because judicial misconduct occurring prior to and during the retrial, rendered void all of Judge Anello's trial rulings, orders and the resulting judgment. As explained below, Noland's motion is based on a faulty premise.
"[A] court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order." (§ 473, subd. (d).) Orders made by a disqualified judge are void and must be vacated regardless of a showing of prejudice. (Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776 (Christie).) Relying on Christie, Noland asserts the trial court erred in denying her motion to vacate because we found that Judge Anello was disqualified and this finding rendered void all of his trial and posttrial rulings.
Noland's argument, however, ignores our express denial of the Disqualification Motion. Noland did not seek clarification of that ruling, nor did she file a petition for review. Our ruling on the Disqualification Motion is final and the trial court properly concluded that our disposition of the matter was law of the case.
Noland's motion is based on the premise that even though we expressly denied the Disqualification Motion, we impliedly granted it on all grounds stated therein through our statement that the matter should be assigned to a different trial judge on remand. In other words, she asserts we disqualified Judge Anello based on bias or prejudice toward a lawyer in the proceeding or because a person aware of the facts might reasonably entertain a doubt regarding his ability to be impartial, as she argued in the Disqualification Motion. We made no such finding; rather, we reviewed the motion on its merits and denied it.
Noland asserts we had no authority to decide the motion on a basis not argued therein and without notice to the parties. This argument overlooks a request made in the Disqualification Motion; specifically, Plaintiffs requested that another trial judge preside over the case, regardless of the outcome of the appeal, citing subdivision (c) of section 170.1, which provides: "At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court." The Legislature added this subdivision to provide a procedure for a party to request an appellate court to remand a case to a different trial court judge because "'a judge who has had his [or her] determinations reversed might not undertake a retrial with total objectivity.'" (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562; Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1633, Disqualification of Judges, p. 8.) The power of the appellate court to disqualify a judge under subdivision (c) of section 170.1 should be exercised sparingly and only if the interests of justice require it. (Livingston v. Marie Callenders, Inc. (1999) 72 Cal.App.4th 830, 840.)
As well known to the parties and this court, the Disqualification Motion addressed a matter that occurred after Judge Anello presided over the retrial and ruled on the posttrial motions. Based on this matter, we ordered that the case be assigned to a San Diego County Superior Court trial judge other than Judge Anello because the interests of justice required his removal from the case based on the matter that arose after he presided over the retrial and ruled on the posttrial motions. Accordingly, Christie is inapposite because we concluded that Judge Anello should be precluded from presiding over any future proceedings. This determination did not impact the validity of his earlier rulings.
Additionally, the claim that Judge Anello should have been disqualified based on alleged conduct that occurred during the retrial came to light as early as June 2003 and information regarding the alleged conduct was included with the Disqualification Motion that we denied. Thus, Judge Stern properly declined to reexamine the evidence because our order was final and law of the case, as Judge Stern noted. We also note that the Disqualification Motion did not ask us to send the matter back to the trial court for an evidentiary hearing to explore the disqualifying conduct that allegedly occurred during the retrial and Judge Stern did not need to hold such a hearing to decide the motion to vacate.
Accordingly, the trial court properly denied Noland's motion to vacate her judgment and we need not address the parties' remaining arguments.
DISPOSITION
The order is affirmed. Ralphs is entitled to its costs on appeal. Noland shall bear her own attorney fees on this appeal.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.