Opinion
D042201.
10-8-2003
FRANK E. ROGOZIENSKI, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. SHIRLEY L. ROGOZIENSKI, Real Party in Interest.
This matter arises out of protracted litigation resulting in the dissolution of the marriage of Frank and Shirley Rogozienski (hereafter Frank and Shirley). For more than four years, attorney James D. Allen performed as the temporary judge in the matter pursuant to stipulation of the parties. After judgment issued and while appeal and cross-appeal were pending in this court, Frank filed a statement of disqualification as to Temporary Judge Allen (Allen) in the trial court. The primary allegation contained in the statement was that during the pendency of the litigation Allen had indirectly received an interest in Warner Springs Ranch from Shirleys attorney. Although denying any wrongdoing and not conceding any grounds for disqualification, Allen withdrew as temporary judge. Frank seeks a writ of error coram vobis from this court directing the current trial court judge to hear and rule on a motion to set aside certain of Allens rulings and orders. We grant the petition.
BACKGROUND
In October 1997 Shirley filed a petition to dissolve the parties marriage. In August 1998, the parties stipulated to Allen serving as temporary judge. Over the next four years, Allen issued decisions affecting the characterization and distribution of the parties property interests. On November 25, 2002, the judgment of dissolution was filed including an Attachment to Judgment setting forth the courts findings and orders with respect to support and the division of property. Both parties appealed.
While researching issues related to the scope of Allen acting as a temporary judge in post-judgment matters, Frank became aware of California Rules of Court, rule 244(b) requiring a temporary judge to certify that he is aware of and will comply with canon 6 of the Code of Judicial Ethics and the rules of court. Frank requested Allen to make disclosure to the parties as required by law. Allen did not respond.
All further rule references are to the California Rules of Court.
Franks research of public records determined that Shirleys attorney, S. Michael Love (Love), and his wife had, in February 2002, transferred Warner Springs Ranch interest number 1546B to attorney Harold S. Bottomley III (Bottomley) and his wife and also transferred Warner Springs Ranch interest number 850A to Bottomley alone. The interests transferred were "half interests" entitling the owner to use the Warner Springs Ranch facilities six months of the year. The transfers were designated "gifts." One month later, Bottomley transferred interest number 850A to Allen reciting that the transfer was a gift. The following month Allen, traded his "half interest" for a "whole interest" entitling him to use the Warner Springs Ranch facilities all year.
Frank filed a statement of disqualification challenging Allen as a temporary judge for cause. Frank argued that Allen was disqualified under Code of Civil Procedure section 170.1, subdivision (a) based on the "gift" of the Warner Springs Ranch interest by Love and his wife and other purported relationships between Allen and Shirleys attorneys. Frank provided copies of grant and quitclaim deeds documenting the property transfers he had discovered. Allen filed a statement withdrawing as temporary judge stating that he was not conceding that any of Franks allegations were grounds for disqualification.
Further statutory references are to the Code of Civil Procedure.
Frank sought to conduct discovery regarding what occurred during the time Allen acted as temporary judge, serving a subpoena duces tecum for deposition and production of documents on Bottomley and deposition subpoenas on Love and Allen. Shirley, joined by Love and his wife, moved to quash the subpoenas. Frank moved for an order permitting discovery pending appeal.
Frank filed this petition requesting this court to issue a writ of error coram vobis directing the superior court judge who replaced Allen to hear and rule on a motion to set aside Allens rulings and orders made at times when he was disqualified. While this petition was pending, the trial court denied the motion to quash the subpoenas and granted the motion to conduct discovery with the exception of Loves deposition. Bottomley and Allen have been deposed and copies of their depositions, as well as documents produced, have been filed with this court. This court issued an order to show cause why the relief requested should not be granted and stayed the appeal In re Marriage of Rogozienski, D041355.
DISCUSSION
Ethical Rules Applicable to Temporary Judges
At the time Allen was appointed as temporary judge, the Code of Judicial Ethics required all temporary judges to comply with certain provisions of the code including disqualifying himself or herself when required by law. (Cal. Code Jud. Ethics, canons 3E, 6D as adopted Jan. 15, 1996, amended Apr. 15, 1996.) A temporary judge was required to disclose on the record information he or she believed the parties or lawyers might consider relevant regarding disqualification, even if the temporary judge believed there was no actual basis for disqualification. (Ibid.) A temporary judge was prohibited from accepting a gift, bequest or favor from a party whose interests had come or were reasonably likely to come before the court. (Cal. Code Jud. Ethics, canons 4D(5), 6D as adopted Jan. 15, 1996, amended Apr. 15, 1996.) The current provisions of the Code of Judicial Ethics include similar provisions. (Cal. Code Jud. Ethics, canon 6D(2)(d)(e)(f) as adopted Jan. 15, 1996, amended Apr. 15, 1996, Mar. 4, 1999, Dec. 30, 2002.)
Almost three years after Allens appointment as temporary judge, rule 244 was amended to require a temporary judge to certify that he or she was aware and would comply with the applicable provisions of canon 6 of the Code of Judicial Ethics and rules. (Rule 244 (b) as amended July 1, 2001.) A new provision was added to rule 244 providing that in addition to any other disclosure required by law, a temporary judge within five days of appointment was required to disclose to the parties matters subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of canon 6 of the Code of Judicial Ethics and any significant personal or professional relationships with parties, attorneys, or law firms involved in the litigation. (Rule 244 (c) as adopted July 1, 2001.)
Disqualification of a Judge
A judge shall be disqualified if "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (§ 170.1, subd. (a)(6)(C).) The standard for disqualification is fundamentally an objective one and not limited to actual bias. (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104.) Disqualification is mandated if a reasonable person would entertain doubts concerning the judges impartiality. (Ibid.) Except in very limited circumstances not applicable here, a disqualified judge has no power to act in any proceedings after his or her disqualification. (Code Civ. Proc., § 170.4.)
Disqualification occurs when the facts creating disqualification arise, not when disqualification is established. (Tatum v. Southern Pacific Co. (1967) 250 Cal.App.2d 40, 43. See also Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 422-427.) The acts of a judge subject to disqualification are voidable. (Urias v. Harris Farms, supra, 234 Cal.App.3d at p. 424; Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940.) Relief is available to a party who, with due diligence, discovers the grounds for disqualification only after judgment is entered or appeal filed. (See Urias v. Harris Farms, supra, 234 Cal.App.3d at pp. 424-425; Betz v. Pankow, supra, 16 Cal.App.4th at p. 940.) Although a party has an obligation to act diligently, he or she is not required to launch a search to discover information that a judicial officer should have disclosed. (See Urias v. Harris Farms, supra, 234 Cal.App.3d at p. 425 [party not required to investigate to ascertain a judges former clients]; Betz v. Pankow, supra, 16 Cal.App.4th at pp. 935, 937 [parties not required to investigate to ascertain clients of law firm in which arbitrator had been a partner].)
Writ of Error Coram Vobis
An appellate court can issue a writ of error coram vobis directing the trail court to reconsider its decision based on new evidence discovered after its decision that would have been grounds for granting reconsideration or a new trial. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) ¶ 5.191, p. 5-47.) The writ effectively remands the matter to the trial court to reopen the judgment and to consider the new evidence. (Ibid.) The use of coram vobis in California civil proceedings is rare. (Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 9.) Relief is available only if the error to be corrected does not appear in the record, no other remedy is available and the issue involved has not been previously determined. (Ibid.)
The writ may appropriately issue when a party discovers facts during the pendency of an appeal that indicate grounds to disqualify the judicial officer who had presided below. (Betz v. Pankow, supra, 16 Cal.App.4th at p. 940-941 [appellant discovered arbitrator had been a partner in a law firm that had represented entities owned or controlled by respondent].) Relief may be granted if: (1) the facts alleged would, if true, support disqualification and require the judgment to be vacated, (2) the facts supporting disqualification do not appear on the face of the record, (3) the issue of disqualification has not been previously determined, (4) the facts supporting disqualification should have been disclosed, but were not, and (5) the disqualification factors were not reasonably discovered sooner. (Id. at p. 941.)
Shirley contends that the first and fifth factors have not been met here. With respect to whether the alleged facts, if true, would justify disqualification, Shirley takes the position that the record does not support a conclusion that Love gave anything to Allen or that grounds for disqualification ever existed. Without any support in the record, she posits a scenario wherein Bottomley received the two half interests in Warner Springs Ranch from Love and later decided he preferred to have only the expense of a half membership and thereafter offered the second half membership to Allen. The deeds submitted by Frank in support of his statement of disqualification evidence that Love and his wife transferred a half interest in Warner Springs Ranch to Bottomley and his wife and on the same day transferred a second half interest to Bottomley alone. One month later, Bottomley transferred the half interest held in his name alone to Allen. All transfers indicated they were gifts. One month later Allen traded his half interest for a whole interest.
A person aware that: 1) Love was an attorney appearing in ongoing litigation before Allen, a temporary judge, 2) the Code of Judicial Ethics prohibited Allen from accepting a gift or favor from anyone whose interests were reasonably likely to come before the court, 3) Love conveyed one-half interest to Bottomley and his wife with the other to Bottomley alone, and 4) Bottomley shortly thereafter conveyed the half interest held in his name alone to Allen, could reasonably conclude Love gave the property indirectly to Allen through Bottomley.
In addition to Shirleys interests being before Allen, Loves attorneys fees were in issue.
Rule 5-300(A) of the Rules of Professional Conduct prohibits an attorney from "directly or indirectly" giving or lending anything of value to a judge.
Additional evidence discovered after the filing of the disqualification statement that could further support this conclusion includes a copy of a letter Love wrote to the Warner Springs Ranch Board of Directors stating that he had two families who would like to buy half interests from him but that they wanted to enjoy the ranch during the same months. He requested that he be allowed to exchange one of his half interests so he would end up with two half interests covering the same months. Evidence also includes Bottomleys testimony that: 1) Before Love deeded the two interests to Bottomley, he was aware that Bottomley intended to transfer one of the interests to Allen. 2) The two families referred to in the letter are those of Bottomley and Allen. 3) Allen was aware that Bottomley would transfer to him an interest received from Allen.
With respect to the diligence factor, Frank did not discover the property transfers indicating a possible indirect gift from Love to Allen until shortly before filing the disqualification statement. Frank was not required to search the public records for information that Allen potentially was required to disclose under the Code of Judicial Ethics both at the time of his appointment and throughout the pendency of the matter. (See Cal. Code Jud. Ethics, canons 3E, 4D(5), 6D as adopted Jan. 15, 1996, amended Apr. 15, 1996; Cal. Code Jud. Ethics, canon 6D(2)(d)(e)(f) as adopted Jan. 15, 1996, amended Apr. 15, 1996, Mar. 4, 1999, Dec. 30, 2002.)
Under the circumstances presented here, it is unnecessary for us to determine how the amendment of rule 244 in 2001 affects previously appointed temporary judges.
Shirley, however, contends the petition for writ of error coram vobis is untimely because Frank did not file the petition until almost two months after Allen filed his statement denying there were any grounds for disqualification. We do not consider a less than two month delay to be unreasonable, particularly in light of Franks efforts to conduct discovery into the disqualification allegations in the trial court. Shirley additionally contends Frank is barred from seeking relief through a petition for writ of error coram vobis because he did not timely file a petition for writ of mandate under section 170.3, subdivision (d). Subdivision (d) provides that "[t]he determination of the question of the disqualification of a judge" is not an appealable order and may be reviewed only by a writ of mandate sought within 10 days of notice of the decision. Here, Allen withdrew as temporary judge without conceding there were any grounds for disqualification. (See § 170.3, subd. (c)(2).) There was no determination of the question of disqualification and section 170.3, subdivision (d) does not apply.
Shirley additionally contends that when all the "circumstances" surrounding the transfer—including Warner Springs Ranch interest having no "real value," Allens decisions being impartial and largely involving questions of law (see United Farm Workers of America v. Superior Court, supra, 170 Cal.App.3d at pp. 104-105, 107); facts being viewed in the context of the everyday realities affecting the bench (see id. at p. 100; Betz v. Pankow (1993) 16 Cal.App.4th 919, 925)—are considered, there are no grounds for disqualification. These are issues that the trial judge may properly consider in the context of a motion to set aside Allens rulings.
If this petition is granted, Shirley requests that this court return the matter to the trial court with instructions to determine only whether Allen was disqualified with respect to his rulings at trial as opposed to earlier rulings which she contends were made before any possible grounds for disqualification arose. The parties agree that only those actions taken by a disqualified judge after the grounds for disqualification arise are voidable. We decline to take any position on when grounds for disqualification may have arisen. After considering all the evidence presented by both parties, the trial court will be in the position to determine if or when disqualification arose and what rulings, if any, should be set aside under section 170.3, subdivision (b)(4).
In light of our decision regarding the transfer of the Warner Springs Ranch interest, it is unnecessary for us to consider the other allegations raised in the statement of disqualification. The trial judge may consider the allegations as he or she deems appropriate.
DISPOSITION
The petition for writ of error coram vobis is granted. The matter is remanded to the trial court for further proceedings consistent with this opinion. The stay issued July 17, 2003, in the appeal In re Marriage of Rogozienski D041355 remains in effect pending further order of this court in the appeal. Shirley is to bear the costs of this proceeding.
WE CONCUR, McDONALD, Acting P. J. and McINTYRE, J.