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Wechsler v. Superior Court (Kimberly Wechsler)

California Court of Appeal, Fourth District, First Division

March 4, 2014

Kenneth WECHSLER, Petitioner,
v.
The SUPERIOR COURT of San Diego County, Respondent; Kimberly Wechsler, Real Party in Interest.

Petition for writ of mandate from an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Petition denied. (San Diego County Super. Ct. No. DN143293).

Page 385

[Copyrighted Material Omitted]

Page 386

COUNSEL

[168 Cal.Rptr.3d 607] Hagar & Cotten and Cary L. Cotten, Vista, for Petitioner.

No appearance for Respondent.

Law Office of Alexandra O'Neill and Alexandra O'Neill; Kimberly Wechsler, in pro. per., for Real Party in Interest.

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OPINION

HALLER, J.

Kenneth Wechsler (Kenneth) filed a writ petition challenging an order denying his motion to disqualify San Diego County Superior Court Commissioner Patti Ratekin from presiding over the dissolution action between Kenneth and his former wife, Kimberly Wechsler (Kimberly). Kenneth moved to disqualify Commissioner Ratekin after learning the commissioner agreed to officiate at Kimberly's counsel's wedding while postjudgment support matters were pending before the commissioner. He sought the disqualification under Code of Civil Procedure section 170.1, which provides 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." (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii) (§ 170.1(a)(6)(A)(iii)).)

Commissioner Ratekin filed a verified answer denying there were grounds for disqualification, and the disqualification motion was assigned to Superior Court Judge Jeffrey Barton. Judge Barton concluded Kenneth did not meet his burden to show a statutory basis for disqualification and denied the motion. Kenneth challenges the ruling in this writ proceeding.

After considering the particular facts before us and applicable law, we determine Commissioner Ratekin's conduct was not a disqualifying event. Under circumstances similar to those here, the California Supreme Court found no appearance of partiality where a trial judge officiated at the wedding of the prosecutor's daughter several months before the judge presided over the defendant's death penalty trial. ( People v. Carter (2005) 36 Cal.4th 1215, 1240-1244, 32 Cal.Rptr.3d 838, 117 P.3d 544.) Following Carter, we conclude that when a judge has no personal or social relationship with the attorney and the judge's only role at the wedding is that of an officiant, disclosure is required (Cal.Code Jud. Ethics, canon 3(E)(2)(a)), but disqualification is not mandated absent additional facts.

FACTUAL AND PROCEDURAL SUMMARY

The Wechsler marriage dissolution action was initially filed in September 2006. [168 Cal.Rptr.3d 608] More than three years later, in January 2010, the matter was assigned to Commissioner Ratekin to preside over postjudgment custody and support matters. During the next several years, the parties had numerous disputes. In

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2012, Kimberly filed a motion to increase support payments and both parties raised numerous other related issues. Kenneth was represented by Cary Cotten, and Kimberly was represented by Alexandra O'Neill. After many continuances and the appointment of an accounting expert, the commissioner scheduled a hearing for November 1, 2013 to resolve pending motions.

One week before the November 1 scheduled hearing, both counsel appeared in court for an ex parte hearing regarding Kenneth's request to continue the hearing. As they were waiting to be called, O'Neill told Cotten that Commissioner Ratekin would be officiating at her wedding later in the year (in December 2013). When the Wechsler matter was called, Commissioner Ratekin did not mention her upcoming participation in the wedding, and neither party raised the issue. The court denied Kenneth's continuance request.

Two days later, on October 25, Kimberly filed a declaration and motion seeking additional attorney fees and costs. Three days later, Kenneth's counsel filed a verified statement of disqualification, asserting that Commissioner Ratekin should be disqualified for cause because the commissioner's agreement to officiate in counsel's wedding might lead a person aware of the facts to entertain a doubt about the commissioner's ability to be impartial in handling the case. (§ 170.1(a)(6)(A)(iii).) Specifically, Cotten claimed " any average person would entertain doubts when learning that the Commissioner ...


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