Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hayward v. Superior Court (Jose Osuch)

California Court of Appeals, First District, Second Division

August 3, 2016

TRACY HAYWARD, Petitioner,

         Napa County Superior Court Trial Court, No. 26-55470 Hon. Diane M. Price Judge

          Attorneys for Petitioner: Law Offices of Keith E. Dolnick, Keith E. Dolnick, Berger Kahn Law Corporation, David B. Ezra

          Attorneys for Respondent: No Appearance For Respondent

          Attorneys for Real Party in Interest: Blevans & McCall, LLP, Robert E. Blevans, Vanessa K. Wills

          Kline, P.J.

         The issues in this matrimonial case arise from the failure of an attorney serving as a temporary judge pursuant to article VI, section 21, [1] of the California Constitution to disclose grounds for her disqualification in the manner required by a canon of the Code of Judicial Ethics[2] applicable specifically to temporary judges. After the temporary judge had served for about two years, petitioner wife first learned that the judge had not disclosed “in writing or on the record” professional relationships she had had with lawyers in the present proceeding, as required by canon 6D(5)(a) and rule 2.831(d) of the California Rules of Court.[3] Petitioner filed in the superior court a statement alleging grounds for disqualification, to which the temporary judge failed to respond in accordance with statutory procedure. The presiding judge of the superior court ordered the temporary judge disqualified, holding that she was deemed to have consented to her disqualification as a result of her failure to file a consent or verified answer. The case was reassigned to a superior court judge and discovery proceeded.

         The present writ petition was filed to challenge certain of the trial court’s discovery orders and its decision to delay a hearing on petitioner’s motion to set aside orders previously made by the disqualified temporary judge. Pursuant to our order, proceedings in the trial court have been stayed. The questions presented to us all relate to whether the rulings made by the temporary judge prior to her disqualification are void or voidable and, if so, the legal consequences.

         As will be seen, our resolution rests heavily on the temporary judge’s failure to either consent to disqualification or answer the statement of disqualification. The temporary judge’s failure to contest the claims that she failed to disclose in writing or on the record, and also that she was biased and prejudiced against petitioner, means that those factual allegations must be taken as true, and she was therefore automatically disqualified. (See discussion, post, at pp. 27-31.)

         We shall find that (1) the rulings and orders issued by the temporary judge are all void and must be vacated; (2) the settlement agreement signed by the parties prior to disqualification of the temporary judge was tainted by the disqualifying conduct of the temporary judge and therefore may not be enforced pursuant to Code of Civil Procedure section 646.6[4] and; (3) the conduct of the disqualified temporary judge did not taint the proceedings before the superior court judge who replaced her. Finally, we shall decline to decide whether the fees paid the temporary judge for services rendered in violation of ethical obligations must be refunded, because the temporary judge is not a party to this proceeding.


         Petitioner, Tracy Hayward, and real party in interest, Jose Osuch married in 1996.[5] Tracy is the owner of The Perfect Puree of Napa Valley (PPNV), a fruit pureeing business in Napa County; Jose was employed by PPNV and in 2006 Tracy made him a one percent owner. The parties later separated and Tracy filed this petition for dissolution in 2011. Initially, Tracy was represented by Roger Lewis, but after she learned he was formerly the law partner of Robert Blevans, who represented Jose, she replaced Lewis with attorney John Munsill.

         In January 2012, the superior court ordered Tracy to pay Jose $12, 748 per month in temporary spousal support and, as additional temporary spousal support, 40 percent of any distributions or withdrawals from her businesses other than salary and other specified taxable income attributed to Tracy. The order also provided that if Tracy’s tax payments exceeded her taxable obligations, she was required to claim a refund and pay 40 percent of the refunded overpayment to Jose as additional temporary spousal support.

         Appointment of the Temporary Judge

         In March 2012, the parties decided not to further litigate the case in the superior court and to stipulate to the appointment of attorney Nancy Perkovich as judge pro tempore-commonly referred to as a “private judge”[6] -pursuant to rules 2.830 through 2.834 of the California Rules of Court, which apply to attorneys appointed temporary judges at the request of the parties pursuant to article VI, section 21, of the California Constitution.

         The stipulation provided that, subject to approval of the presiding judge of the superior court, Perkovich “may be designated as Temporary (‘Private’) Judge of the Superior Court for all purposes, including, without limitation, conducting settlement conferences and case management conferences, hearing any pretrial motions/Orders to Show Cause, and sitting as trial/long cause judge in this proceeding. The parties waive any conflict that may exist because Perkovich conducts settlement conferences and thereafter serves as the hearing and/or trial judge.” The parties and their attorneys all signed the stipulation on March 28, 2012, and Perkovich signed an oath of office the next day; the order designating her temporary judge was signed by the Honorable Robert G. Stone, Presiding Judge of the Napa County Superior Court, on April 3, 2012, and filed on April 5, 2012.[7]

         The Rules of Court provide that “[i]n addition to any other disclosure required by law, no later than five days after designation as a temporary judge... a temporary judge must disclose to the parties any matter subject to disclosure under the Code of Judicial Ethics.” (Rule 2.831, subd. (d).) As Perkovich was designated a temporary judge on April 5, 2012, her disclosure was required to be made no later than April 10.

         Canon 6D(5)(a), provides that in “all proceedings” temporary judges must “disclose in writing or on the record information as required by law, or information that is reasonably relevant to the question of disqualification under Canon 6D(3), including personal or professional relationships known to the temporary judge... that he or she or his or her law firm has had with a party, lawyer, or law firm in the current proceeding, even though the temporary judge... concludes that there is no actual basis for disqualification.” (Italics added.)

         Perkovich failed to comply with the foregoing requirement: She failed to disclose “in writing or on the record” any ground for disqualification even though she knew she, Blevans, and Munsill, had in the past served as private judges in each others’ cases, i.e., that she or her law firm had professional relationships with lawyers in the proceeding before her. This information was required to be disclosed even if Perkovich concluded that these relationships provided “no actual basis for disqualification, ” and the disclosure was required to be made “in writing or on the record.” (Canon 6D(5)(a).)

         Code of Civil Procedure section 170.3, which applies to temporary judges, allows the parties and their attorneys to waive a disqualification after a judge determines himself or herself to be disqualified and discloses the basis of the disqualification. (§ 170.3, subd. (b)(1).) Such a waiver must “recite the basis for the disqualification, and is effective only when signed by all parties and their attorneys and filed in the record.” (Ibid.) Because Perkovich failed to disclose any grounds for disqualification in writing or on the record, much less to determine herself to be disqualified, neither party was called upon to waive or waived the disqualification.

         Perkovich also failed to comply with a provision of the Rules of Court requiring a temporary judge to certify (in his or her oath of office or otherwise) “that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and the Rules of Court.” (Rule 2.831(b).)

         Although the stipulation and proposed order assigning Perkovich temporary judge was signed by the parties and their counsel late in March 2012, and filed with the court on April 5 of that year, the parties did not actually meet with Perkovich until seven months later, at the first settlement conference on October 30, 2012. As will be seen, Perkovich maintains that she verbally disclosed her personal and professional contacts with both Blevans and Munsill at the beginning of this conference, including that she had hired each of the attorneys as temporary judges in the past, and each of them had hired her. Tracy maintains that she did not hear or understand any such verbal disclosures, and did not learn of Perkovich’s failure to disclose “in writing or on the record” until almost two years later, when her present counsel came into the case and requested information including Perkovich’s disclosures, and Perkovich informed them of her verbal disclosures.

         Relations Between the Parties and Counsel Deteriorate

         On March 26, 2013, Tracy replaced Munsill with Trevor Jackson, a younger lawyer who did not limit his practice to family law.[8] Jackson was unaware Perkovich and Blevans designated each other as private judges in matrimonial cases in which one of them represented a party. Perkovich did not disclose her professional relationship with Blevans at any time during which Jackson represented Tracy.

         Shortly after Jackson entered the case, relations between the parties worsened. The contentiousness was most evident at a July 30, 2013, hearing on Jose’s motions requesting attorney and expert witness fees, payment of spousal support arrearages and restraints on Tracy’s ability to take distributions from PPNV without Jose’s consent or a court order. Assuming testimony and other evidence would be received at the hearing, Jackson brought Kevin Ziegler, the chief operating officer of PPNV, to testify as to the adverse effect on PPNV of the restraints Jose sought to impose on its distributions and Tracy’s corporate decision-making, and expected to be able to cross-examine Darlene Elmore, Jose’s expert, regarding her declaration. Jackson had given advance notice Ziegler would testify by naming him on his witness list, and he and Tracy were surprised when Perkovich refused to allow Ziegler or any other person to testify and stated her intention to rule on Jose’s motions solely on the basis of the declarations, exhibits and pleadings. Perkovich barred testimony on the erroneous ground that the hearing was analogous to a law and motion proceeding. [9] Jackson objected repeatedly during the hearing, but to no avail.

         Jackson also complained that though Tracy was the founder and owner of PPNV, whose assets Jose sought to examine and encumber, neither she nor the chief operating officer of the company were allowed to testify at the hearing regarding its operations, cash flow, tax situation, or any other relevant matters. Instead, Perkovich allowed Blevans to submit a declaration determining the disputed financial issues based on his analysis of the company’s tax returns. Additionally, with respect to attorney and expert witness fees, Perkovich appeared willing to rely solely on the declaration of Blevans, who (self-servingly in Jackson’s view) characterized himself an expert on the subject, and to award fees to compensate for the costs of what in Jackson’s view were unnecessary depositions and “law and motion” proceedings that had been pursued instead of negotiating an expeditious settlement. Jackson objected to requiring Tracy to pay Jose’s attorney and expert witness fees before Jose was compelled to disclose the extent and nature of his independent assets.

         Perkovich ordered Tracy to pay Jose $13, 335 for his attorney fees, to advance him attorney fees in the amount of $100, 000 payable in 60 days, and to pay expert witness fees of $35, 000 to Darlene Elmore. After Jackson objected to the “abbreviated manner” in which the proceeding had been held, Perkovich went on to find that in 2011 and 2012 Tracy had taken distributions of $605, 576 in excess of taxes attributable to PPNV and Hayward Enterprises, Inc. (HEI), another company she controlled, which provided sizable tax refunds that pursuant to court order should have been shared with Jose; ruled that Jose was entitled to 40 percent of this amount, or $242, 230; and directed Tracy to pay him this amount, plus interest at 10 percent, as additional spousal support. Finally, Perkovich restrained Tracy from allowing or causing the withdrawal of any sums from PPNV or HEI for payment to her for her personal benefit.

         Toward the end of the hearing, Jackson remarked on his “shock” at Perkovich’s unexpected refusal to accept testimony he had planned to present. When he subsequently reiterated his objection to the lack of notice, Tracy interjected that Perkovich’s failure to allow testimony “made you look like an idiot, ”[10] adding that “ ‘[m]y’ COO is sitting right here and he could have cleared up many of these issues. How in the hell do you absolutely allow-.” Perkovich cut Tracy off, stating “Your conduct is in contempt of court. You’re disrespectful. You’re in contempt.” A colloquy ensued in which Perkovich complained that “in presenting your case... you see things only your own way, ” and Tracy heatedly insisted that Perkovich “never asked the questions” that needed to be asked “for the truth to be made known” about the manner in which she ran PPNV.

         In a ruling she filed with the superior court less than two weeks later, on August 12, 2013, Perkovich belatedly recognized that, under Family Code section 217, subdivision (c), Tracy was entitled to an evidentiary hearing on some of the motions heard and decided on July 30. Perkovich vacated portions of her earlier decision and ordered that the motions for spousal support arrearages and property restraints be set for evidentiary hearing. The August 12 ruling modified the earlier decision primarily by increasing the amount of attorney fees Tracy was required to advance to Jose from $100, 000 to $150, 000, apparently to cover the costs of the newly ordered evidentiary hearing.[11]

         Tracy Tries but Fails to Remove the Temporary Judge and Jose Seeks to Wrest Control of PPNV From Tracy

         Perceiving Blevans had an “inside track” to Perkovich’s thinking and decision-making, [12] Jackson filed a motion in the superior court on September 5, 2013, to withdraw the stipulation and order, remove Perkovich as temporary judge, and reopen discovery. Unaware of Perkovich’s failure to disclose in writing or on the record her mutual judging relationship with Blevans as required by canon 6D(5)(a), Jackson based the motion instead on the inconvenience and expense of having a temporary judge based in Sacramento in a case in which Jose was “avidly pursuing litigation and discovery instead of settlement, ” and the fees of the temporary judge were certain to “skyrocket.” The motion was denied on October 20, 2013.

         Meanwhile, the evidentiary hearing was held on October 9, 2013. Much of the hearing focused on distributions Tracy took from PPNV. At the end of the hearing, Jackson expressed his exasperation about the irrelevant “minutiae” into which Blevans was delving, his manipulation of the facts, and the unreasonableness of the restraints he sought to impose on Tracy and the company. Insisting Tracy received no personal benefit from PPNV’s tax payments and other distributions, Jackson argued that setting aside a large amount of corporate assets for Jose would not only cripple the company but be unfair. If Jose was to benefit from PPNV’s profits, Jackson argued, “then he should be liable for any taxes the company may have to incur, ” but “he’s getting all the gain and Tracy is getting zero.” Furthermore, Jackson complained, “we have been the ones that have been providing all the documents... and the depositions, ” and Jose was unjustifiably being held harmless without any inquiry into his independent assets.

         Perkovich’s October 28 ruling states that Jackson reported on the morning of the October 9 hearing that Tracy could not appear because she was ill, “there were potential tax issues which may implicate her rights against self-incrimination [that] may give rise to the assertion of her 5th Amendment privilege” and her named expert, Kevin Ziegler would not attend “due to 5th Amendment issues.” Perkovich denied Jackson’s request to continue the hearing to permit an arrangement in which Tracy and Ziegler would be able to testify, but received the testimony of Jose’s expert Darlene Elmore and also considered the deposition testimony of Tracy and Ziegler, as well as documentary evidence presented by the parties.

         Perkovich found that Tracy authorized payment from PPNV of $273, 004.15 for legal fees she paid four attorneys, that under a prior court order Jose was entitled to 40 percent of this amount, $109, 201.66, in order to pay his own attorneys, and ordered that amount paid to Jose in the form of spousal support, together with simple interest of 10 percent commencing on the date each distribution was made. The October 28 ruling also directed that, with respect to the arrearages in spousal support, “[a] writ of execution shall issue forthwith.” The ruling stated that there was evidence Tracy had improperly taken other corporate distributions for her personal benefit, and Perkovich reserved jurisdiction to make further orders about them and any other challenged distributions until the necessary business records were made available to Jose.

         On November 7, 2013, Jose filed a request in the superior court “For Control and Management of [PPNV] or in the Alternative for Appointment of a Receiver.” Jose claimed Tracy failed to pay him monthly spousal support in violation of the June 2011 support order, “directed [PPNV] to withhold her salary and is refraining from taking a paycheck so that her pay will not be subject to a Wage Garnishment Order reactivated by Jose on June 18, 2013, ” and authorized PPNV to pay various personal expenses on her behalf, thereby reducing the company’s net income and profitability to Jose’s detriment. He also claimed she was not involved in the daily operations of the company and was engaging in “erratic conduct demonstrat[ing] a renewed instability and inability to manage the community business.” According to Jose, “Tracy’s continued control of the company’s operations virtually assures she will be able to thwart the court’s rulings and deprive Jose of funds for support and fees.” Jose asked the court to (1) award him “exclusive management” of PPNV and order him to (2) remove Tracy from her position as CEO of PPNV, (3) “immediately suspend” her annual salary of $350, 000, (4) direct PPNV to pay him an annual salary not to exceed $350, 000, and authorize him to make distributions from PPNV “to pay spousal support arrearages, attorney’s fees, expert costs, and any outstanding Judge Pro Tem fees.” In the alternative, Jose asked the court to appoint a named receiver to run the company.

         Settlement Efforts and Tracy’s Claim of Duress

         According to Blevan’s declaration, the parties had begun settlement negotiations at conferences in October 2012, and June 2013, the latter a few months after Jackson substituted into the case. Tracy extended two proposals in July 2013, and in August 2013, Jose proposed a “complete and global resolution” that Blevans later described as having become the “foundation” for the Memorandum of Agreement (MOA) the parties eventually signed. In November, after Jose filed his request to gain control of PPNV, Tracy offered another settlement proposal. According to Blevans, Tracy, Jackson, and Tracy’s attorneys Ian Carter and Eric Jeppson all attended an all-day settlement conference on December 4, 2013, though Tracy “was asked to leave... due to her disruptive behavior” and discussions continued at a December 23 meeting attended by Jackson, Carter, and Jeppson. Blevans then met with Jeppson and Carter on January 10, 2014, to discuss how Tracy would structure payments Jose had agreed to accept at the December 23 meeting. At this point, the hearing on Jose’s motion for control of the company or appointment of a receiver was set for January 14, 2014.

         The agreement Tracy signed on January 13, 2014, required her to pay Jose $300, 000 for the parties’ residence, $2, 400, 000 to equalize the division of property other than the residence, and spousal support of $25, 000 per month, nonmodifiable until the equalizing payment was made in full. Tracy’s spousal support obligation was to “survive” Jose’s remarriage and continue until his death.

         According to Tracy and Jackson, the MOA was negotiated without their participation at the January 10, 2014, meeting between Blevans, Jeppson and Carter. Jeppson and Carter worked for Tracy on corporate and tax matters involving PPNV; she stated in a declaration that they “negotiated without my authorization.” Jackson stated that upon his arrival at Blevans’s office on January 10, he was met by Jeppson and Carter, who informed him that Blevans “was unavailable because he was attending to another matter, ” and that an agreement had been reached “resolving all material issues before the court.”

         As described in her brief and declaration in support of the present writ petition, Tracy considered the MOA “disastrous.” Tracy stated in her declaration that she only received the document late on the afternoon of the day before the hearing on Jose’s motion to take control of PPNV or put the company in the hands of a receiver, and she “did not understand the terms of the Agreement.” Tracy claims she was “emotional, confused, and afraid” at being forced to decide either to sign the MOA or submit to a hearing before a judge she considered biased against her on a motion seeking to transfer control of PPNV to Jose. Tracy would not have executed the MOA, she said, “except for the threats against my company”; she “feared for her company’s existence, her employees’ futures, and her own livelihood [and] was also concerned about possible tax and criminal ramifications due to Jose’s refusal to share information about off-shore bank and brokerage accounts he had established with company money, leaving Tracy to face the consequences here, while he stayed in Argentina.” Assertedly on the basis of Jackson’s prediction that Perkovich would likely grant Jose’s motion to grant him control of PPNV or appoint a receiver, Tracy signed the MOA, but noted on the document that she did so “under protest.” On January 14, 2014, after Jackson told her the MOA would not be accepted with that notation, Tracy signed a fresh copy without expressing protest. Jackson confirmed that, based on his assessment of the situation, he advised Tracy the document would not be accepted if she wrote on it that she signed “under protest, ” and her only options were: “(a) execute an identical copy of the Agreement without the words ‘under protest’ on the document (thereby avoiding the receivership hearing), or (b) proceed with the receivership hearing on the following day.”[13]

         Tracy Obtains Disqualification of Perkovich

         On March 26, 2014, Jackson was substituted out of the case and Tracy’s present lawyers, Keith E. Dolnick and David B. Ezra, entered the fray. Two months later, on May 20, 2014, Jose filed a motion to enforce the MOA pursuant to section 664.6. Tracy’s new lawyers, who had not yet learned of the mutual private judging relationship between Blevans and Perkovich, opposed the motion on the grounds that (1) the parties had not, prior to signing the MOA, served on one another or mutually waived the final declarations of economic interests and income and expense as required by Family Code section 2105, and (2) Tracy signed the MOA under economic duress.

         On May 30, 2014, Tracy filed a second motion to withdraw the stipulation and order appointing Perkovich temporary judge, this time on the ground that, due to Perkovich’s failure to certify that she was “aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and the Rules of Court, ” as required by rule 2.831(b), she lacked the power to rule on the pending motion to enforce the MOA pursuant to section 664.6, and lacked judicial authority “to make any of the determinations she has made in this matter to date.” The motion maintained that Perkovich’s failure to provide the certification required by the Rules of Court provided “good cause” permitting Tracy to withdraw the stipulation (rule 2.831(f)). Tracy also contended that the stipulation and order did not grant Perkovich authority to decide a motion under section 664.6, which was outside the scope of the cause she was hired to judge. The motion was denied on July 11, 2014. Tracy filed a writ petition in this court challenging the ruling, which we denied on September 10.

         On September 22, 2014, Tracy’s present counsel requested from Perkovich a copy of the “engagement letter and any disclosures signed by [Tracy] that were made by Perkovich, ” as well as copies of billing statements in the case and a list of “any articles co-authored by Perkovich and Blevans over the past four years and any seminars they had spoken at together.” Perkovich responded by e-mail as follows: “I gave a verbal disclosure of the personal and professional contacts I have had with Mr. Munsill and Mr. Blevans at our first meeting on October 29, 2012.[14] All parties, their attorneys, and their forensic CPAs were present. I disclosed the professional committees I was on with Mr. Munsill and the professional organizations I had in common with both attorneys and the limited social contact I had with each attorney. I disclosed that I had hired both Mr. Munsill and Mr. Blevans to act as judge pro tems. or settlement judges on cases I had and that I had also been hired by each of them previously in the capacity of settlement judge or judge pro tem.”

         On October 7, 2014, Tracy asked the presiding judge of the Napa County Superior Court to disqualify Perkovich.[15] Tracy’s “statement of disqualification” was based on two separate grounds. The first was that “Perkovich violated the Canons of Judicial Ethics by disclosing her mutual judging relationship, if at all, only verbally and off the record, ” and “there is no written waiver.” Tracy’s motion asserted that “[i]t was not until September of 2014 that I first learned that Perkovich uses Blevans as a private judge in cases where she acts as an attorney representing a client in a divorce case (and he returns the favor by using Perkovich as a private judge in cases where Blevans is representing a client in divorce proceedings.) According to Tracy, “Perkovich first disclosed that information in an informal e-mail dated September 22, 2014.”

         The second ground for disqualification alleged in Tracy’s motion was that any person aware of her conduct “would have substantial doubt that Perkovich was or could be impartial, ” and Perkovich should therefore be disqualified under section 170.1, subdivision (a)(6)(A)(iii). In support of her bias claim, Tracy declared that Perkovich “seemed to visibly favor” Jose and Blevans and “took steps to block” Tracy’s attorney from introducing evidence supporting her contentions. Perkovich allegedly refused to order Jose to produce bank statements that Tracy claimed would show he was improperly withholding community property for himself; unfairly imposed a levy on the bank account from which Tracy directed payment of spousal support despite knowing the account “had been swept to pay Mr. Blevans $185, 000 in attorney fees” and Tracy had no other personal funds; and conducted hearings unfairly, for example by giving no notice she would refuse to receive oral testimony at the July 30, 2013, where she knew Tracy planned to present witnesses. Tracy declared that Perkovich conveyed bias by her “body language and her tone toward me and Mr. Jackson, ” which “was very different than it was toward Mr. Blevans and [Jose]. She was very standoffish, and regularly appeared to be visibly and noticeably annoyed with me” and “often would stand over me with her arms crossed. She would never make eye contact with me. When [Jose] or Blevans spoke, Perkovich was relaxed and thoughtful, often making helpful comments or asking insightful questions that would help them fully develop the point they were trying to make.” Perkovich also allegedly engaged in “highly inappropriate” interactions with Blevans. “For example, ” Tracy stated, “during the July 30, 2013, hearing, I personally saw Perkovich flirt with Blevans, proclaiming, ‘Oh Bob, that’s so funny of you, ’ while she batted her eyelashes at him, ” and Perkovich and Blevans “inappropriately spoke to each other about the case when my attorney was not present, ” which Tracy assertedly learned from an invoice billing her for the time Perkovich spent on the phone, without Tracy’s lawyer, in preparation for a hearing.

         Jackson’s declaration in support of Tracy’s motion to disqualify corroborated Tracy’s description of Perkovich’s different demeanor with Tracy and Jackson than with Jose and Blevans. Jackson noted that Perkovich and Blevans “were on a first name basis” and “knew things about each other that were not generally known to the public, ” such as when Blevans congratulated Perkovich on the birth of her grandchild. Blevans had Perkovich’s “ ‘after hours number, ’ ” which Jackson never had, and appeared to have discussed the case with her outside Jackson’s presence. During the proceedings, Perkovich “demonstrated a strong affinity toward Blevans” through “tone of voice, body language, eye contact and other physical means, ” such as rolling her eyes at Jackson and then “making knowing eye contact with Blevans” and “shaking her head from side to side.” Perkovich’s “body language and voicetone toward [Tracy] was almost always very negative, indicating dismissiveness, condescension, and superiority, ” while she “always appeared understanding and accommodating toward Osuch and Blevans.” Her “tone, body language, and actions led everyone involved to believe that [Tracy] was not going to prevail on any significant issue that might be decided by Perkovich.” Jackson believed Perkovich was aware that her actions were presenting the appearance that she was favoring Blevans and Jose, as indicated by her comment at a hearing that she could see from Tracy’s pleadings and demeanor that Tracy did not trust Perkovich to judge the case fairly.

         Additionally, the declaration of Tracy’s current counsel, Keith Dolnick, related an incident in which he believed Perkovich acted in a manner that appeared to favor Jose. After Tracy filed her motion to withdraw the stipulation appointing the temporary judge based on Perkovich’s failure to provide the certification required by rule 2.831(b), Jose’s attorneys sent Perkovich two certifications to sign, one stating that she was aware of and would comply with the applicable provisions and the other adding that the certification was “further evidenced by” Perkovich’s “Consent and Oath of Office” in another case, which was attached as an exhibit. Dolnick declared that he objected to this “ ‘improper ex parte communication without prior notice’ ” and asked Perkovich to take no action and remain neutral, to which Blevans responded by telling Perkovich that signing the certification was appropriate “ ‘and if it moots the issue raised by Mr. Dolnick, so be it.’ ” Perkovich signed the second certification. Dolnick further described Blevans communicating ex parte with Perkovich after Tracy filed a motion to quash, emailing her to ask “ ‘how she would like to handle this issue.”

         On October 16, 2014, before any hearing or ruling on the request to disqualify, Perkovich delivered to the Presiding Judge of the Napa County Superior Court a letter expressing a desire to recuse herself from the case. Noting that Tracy had filed a motion to disqualify her “on the grounds of bias, ” the letter asserts that Tracy “claims a bias in favor of Blevans because Blevans has acted as a private settlement judge on one case where I was associated as counsel and because I have been hired on two cases where he was an attorney.” Pointing out that she also “had the same mutual judging relationship with two of [Tracy’s] previous attorneys, Roger Lewis and John Munsill, ” Perkovich disagreed that her prior professional relationship with Blevans constituted bias and stated that Tracy consented to her retention as temporary judge “after disclosure from me at our first case management meeting about the details of my professional relationship with both Munsill and Blevans.” Perkovich’s letter to Presiding Judge Stone then ended with the following paragraph:

         “I have, however, become concerned about my personal safety in this case due to [Tracy’s] conduct. Her behavior has become increasingly hostile with angry outbursts to the point that I am fearful of her. It is also evident from [Tracy’s] ongoing violations of the existing court orders that she will never accept anything I decide. I therefore feel that I am an impediment to resolution of the parties’ case, which is not desirable. It is for these reasons that I request recusal.”

         In an order filed on November 7, 2014, Presiding Judge Stone granted Tracy’s request to disqualify Perkovich. The order found that Perkovich’s letter requesting recusal “does not satisfy the requirement of the filing of consent to the disqualification” imposed by section 170.3, subdivision (c)(3), [16] and that “as a result of her failure to file a consent or a verified answer within the time allowed, Nancy Perkovich is deemed to have consented to her disqualification pursuant to Code of Civil Procedure section 170.3[, subdivision] (c)(4).” [17] The order declared, “Nancy Perkovich is hereby disqualified as Judge Pro Tempore in this action and shall not participate in the proceedings in this action after October 7, 2014, ” the date Tracy filed her request for disqualification. The order reassigned the case to Superior Court Judge Diane M. Price.

         The Case Proceeds Before Judge Price

         On December 10, 2014, Judge Price conducted a hearing on Jose’s motions to reopen discovery and compel the production of documents and Tracy’s motions to quash subpoenas compelling her and Jackson to submit to deposition, all of which related to Jose’s earlier motion to enforce the MOA, which had been submitted to Perkovich but not decided before she was found disqualified. At the hearing before Judge Price, Tracy objected to reopening discovery on matters related to whether she signed the MOA under duress primarily because much of the evidence Jose sought to discover regarding that matter was protected by the attorney client and/or work product privilege. Rejecting this objection on the ground Tracy’s and Jackson’s declarations constituted a waiver of privilege as to certain communications between her and her attorney, Judge Price reopened discovery related to Jose’s pending motion to enforce the MOA and requests pertaining to attorney fees and spousal support. Judge Price felt it would be “fundamentally unfair“ to allow Tracy to file declarations discussing her communications with Jackson without allowing discovery by Jose limited to those communications between Tracy and Jackson she relied upon in the declaration she filed in opposition to Jose’s motion to enforce the MOA. Tracy withdrew her objections to the production of documents pertinent to a range of issues that did not implicate the attorney-client and/or work product privileges. Judge Price continued for further hearing Tracy’s motion to quash a subpoena to Jackson and ordered him to submit all responsive documents for the court’s in camera review to determine which were to be produced and whether redaction was required for any attorney-client privilege and/or work product information that had not been waived. Tracy’s motion to quash a subpoena to her was denied.

         On January 28, 2015, [18] Tracy asked Judge Price to declare void and vacate all orders issued by Perkovich, arguing that the orders of a disqualified judge are void and the disqualification occurs when the facts creating disqualification arise, not when the disqualification is established.[19] Judge Price subsequently filed an order granting Jose’s motion to continue the hearing on Tracy’s motion, because Tracy had not filed a declaration supporting the relief sought, and the scheduled depositions of Tracy and Jackson might “cover the issues raised” in the motion. Judge Price’s March 2 order also denied Jose’s motion to consolidate the hearings on Tracy’s motion to set aside Perkovich’s orders and Jose’s motion to enforce the MOA because the motions “involve discrete issues.”

         Meanwhile, at a hearing on February 3, Judge Price granted Jose’s request for appointment of a discovery referee (§ 639, subd. (a)(5)) to attend the depositions of Tracy and Jackson.[20] Accepting Jose’s arguments, Judge Price granted the request on the basis of three “exceptional circumstances”: (1) Tracy’s behavior at the previous deposition was “extraordinarily rude, nonresponsive, [and] argumentative, ” (2) the attorney-client privilege would probably be raised by Tracy and Jackson and it would be “expeditious” to have rulings on those objections during the deposition, and (3) Tracy was “reluctant” to turn over financial information legally required to be disclosed, and it would be helpful to have a referee present to “monitor.”

         Also at the February 3 hearing, Judge Price addressed Jose’s earlier motion to award him the reasonable expenses, including reasonable attorney fees, he incurred in prevailing on his motions to reopen discovery, produce documents, and subpoena Tracy and Jackson for appearances at depositions. Finding that Tracy’s opposition to all of Jose’s discovery requests was without “substantial justification” (§§ 2024.050, subd. (c), 1987.2, subd. (a))-because it was unreasonable to think she could maintain she did not understand the MOA she signed and was relying on the statements or failures to act of her attorney “and not think that opens the door to discovery”-Judge Price awarded Jose the total amount of $36, 091.

         On March 10, Tracy filed a five-page declaration in support of her motion to vacate Perkovich’s orders. Tracy explained that if Perkovich verbally disclosed her professional relationship with Blevans at the settlement conference on October 30, 2012-which was almost seven months after Perkovich was appointed temporary judge - Tracy was unaware of it because “I was either not involved in those discussions or did not believe they were directed at me. Nor did I understand an informal discussion or exchange of pleasantries could later be used to argue that it had forced me to waive valuable rights, including the right to a neutral, unconflicted judge.” Tracy’s declaration reiterated that she did not learn of Perkovich’s mutual judging arrangement with Blevans until the September 2014 email. She also reiterated the concerns stated in her declaration in support of her motion to disqualify Perkovich about the manner in which Perkovich conducted hearings and, in Tracy’s view, her demonstrated bias in favor of Jose and Blevans. Tracy further stated that she had not had any contact with Perkovich since the December 2013 settlement conference, and that she did not recall having any “meaningful interaction” or exchanging any words with Perkovich at the conference, during which Tracy “spent the large majority of time... sitting in my car or in the lobby of Blevans office.”

         Perkovich Resists Tracy’s Demand for Refund of Fees

         On March 27, after Tracy demanded repayment of all fees paid Perkovich pursuant to the terms of the 2012 Stipulation and Order, Perkovich filed a request for declaratory relief. Asking for “direction... as to how she should respond to the demand that she refund all fees and costs paid by [Tracy] pursuant to the Stipulation and Order, Perkovich stated that she had performed all of the services she was called upon to perform and was entitled to be compensated for that work in accordance with the terms of the Stipulation and Order.[21] She also pointed out that the superior court had twice (October 10, 2013 and July 11, 2014) denied Tracy’s requests to withdraw the Stipulation and Order appointing her temporary judge; the second of these rulings found the Stipulation and Order was “valid and enforceable” and, by voluntarily participating in proceedings before Perkovich, Tracy waived “any objection to the Stipulation and Order.”

         Perkovich represented that she told the six persons present at the October 2012 settlement conference-Tracy and Jose and their counsel, as well as David Schultze and Darlene Elmore, forensic accountants for the parties- “about my professional contacts with each attorney including the fact that (1) I had been hired once before as a judge pro tem in a case where Blevans was an attorney, (2) Blevans was hired as a judge pro tem once in a case where I was an attorney, (3) Munsill was hired as a judge pro tem once in a case where I was an attorney, (4) I was hired as a settlement judge once in a case where Munsill was an attorney, (5) Munsill and I had been previously associated as counsel on a case, (6) I served on the Sacramento Family Law Bar Association Committee with John Munsill and socialized once with he and his wife and children related to that professional organization, and (7) I am a member of the American Academy of Matrimonial Lawyers and was acquainted with Blevans from that organization. I also disclosed that I had hired David Schultze, CPA many times on cases throughout my career and had also had him as an opposing expert on many cases. I had not previously met Darlene Elmore, CPA. I asked all parties and attorneys if they were comfortable with my acting as judge pro tem. All parties indicated that they wished me to proceed in that capacity.”

         Blevans, Elmore, and Schultze all stated in declarations or deposition testimony given in late 2014 or early 2015 that Perkovich verbally disclosed her prior contacts with Blevans and with Munsill at the October 2012 meeting, including that she and each of the attorneys had acted as temporary judge in each others’ cases, and that the parties agreed to proceed with Perkovich as temporary judge.

         Munsill testified at a deposition in February 2015 that he recalled Perkovich discussing at the settlement conference “her various prior connections with both [Blevans] and me, ” but did not recall “the details” of that discussion. He did not recall Tracy expressing concerns about Perkovich’s disclosures. Munsill acknowledged that he had a “mutual judging relationship with Perkovich, ” each having served as judge in a case where the other represented a party. Munsill stated that he had no reason to believe inaccurate the statement in Blevan’s declaration that after Perkovich’s disclosures at the settlement conference, “both counsel and the parties acknowledged their understanding and agreement to move forward with Judge Pro Tem Perkovich presiding.” He did not recall presenting Tracy with a written waiver of any potential conflict after Perkovich disclosed her professional relationships with the two attorneys and stated, “I don’t recall there being a need for that.”

         Judge Price Expands Discovery

         On April 13, over Tracy’s objections, Judge Price granted Jose’s motion to clarify her earlier ruling that Tracy waived her attorney-client privilege regarding matters Jose sought to discover. Judge Price clarified that Tracy’s waiver of the attorney-client privilege included “any communications with or between attorneys Trevor Jackson, Ian Carter, and or Eric Jeppson made from the time period beginning August 9, 2013 (when the parties began active settlement negotiations that lead to the Memorandum of Agreement) to [the] present” regarding the claims that (1) Tracy “was not part of the negotiations that took place regarding the Memorandum of Agreement” and “had no input whatsoever”; (2) Eric Jeppson and Ian Carter were not authorized to negotiate the MOA on Tracy’s behalf; (3) Tracy was unclear how the terms of the MOA were reached; (4) Tracy did not understand the terms of the MOA; and (5) Tracy was “forced” to execute the MOA due to a threat that her company would be taken away from her.

         Also over Tracy’s objections, Judge Price expanded the time period of the documents relating to negotiation of the MOA that Jackson was required to provide for in camera review in response to Jose’s subpoena duces tecum. In addition to the documents he prepared and gave Tracy between January 10 and January 13, 2014, Jackson was also required to produce those he prepared and provided Tracy during the period from August 9, 2013, to the present. Finally, the April 13 order found that Tracy’s opposition to the foregoing discovery was “not reasonable” in light of the court’s prior ruling that Tracy waived the attorney-client privilege, and granted Jose’s request for attorney fees and costs under section 1987.2, subdivision (a), in the amount of $6, 000.

         We Issue an Order Staying all Trial Court Proceedings

         On April 16, 2015, we issued an order temporarily staying “all discovery proceedings, ” including the pending depositions of Tracy and Jackson.

         A little more than three weeks later, on May 21, 2015, Jose submitted to the trial court (which stamped the document “Received”) a Memorandum of Points and Authorities and declaration of Blevans in support of Perkovich’s right to refuse to refund the fees paid her by Tracy. Blevans stated in his declaration that the Stipulation and Order appointing Perkovich a temporary judge was drafted by Munsill, who did not “include any provision authorizing any judge of the Superior Court to make any determination concerning the reasonableness of her fees or to order any refund of fees and costs that were advanced.” Jose argued that Tracy’s demand for a refund of fees she paid could not be granted because such relief was not authorized by the Stipulation and Order under which the fees were paid and because Perkovich was protected by a common law quasi-judicial immunity. The latter contention was based upon Howard v. Drapkin (1990) 222 Cal.App.3d 843, which was a civil action seeking damages for professional negligence against a psychologist evaluating a child custody dispute.

         Tracy had responded to Perkovich’s request for declaratory relief in a brief dated May 18 that, at least in the record before us, does not bear any stamp from the trial court. Relying on cases, such as A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072 (Aguilar), holding as a matter of law that “an attorney disqualified for violating an ethical obligation is not entitled to fees” (id. at p. 1079), Tracy argued a private judge disqualified for violation of an ethical obligation should not be treated differently.[22] Tracy emphasized that Perkovich’s request ignored the crucial fact that all of the orders she was paid by the parties to make were void and had to be vacated, and that the Stipulation and Order had no bearing on Perkovich’s rights after she was disqualified for violating ethical obligations.

         At the time we issued our stay, Judge Price had issued no ruling on Perkovich’s request for declaratory fees regarding her entitlement to the fees Tracy had advanced.

         On June 2, a week after Jose filed his support for Perkovich’s request for declaratory relief, Tracy asked this court to expand the scope of the temporary stay of discovery we issued on April 16 because, since issuance of that stay, Perkovich had been aggressively pursuing her motion for declaratory relief, Jose had asked Judge Price to direct Tracy to advance him $250, 000 for attorney fees he might incur in this and related efforts, and a hearing on many of Jose’s requests had been set for June 1, 2015. Tracy represented that her attorneys “have been required to prepare multiple opposition/responses and participate in multiple hearings in response to the flurry of paperwork initiated by [Jose] and Perkovich” and that counsel for Jose refused to stipulate to a stay of litigation in the trial court pending action on this writ petition. Tracy maintained that the discovery issues Jose and the trial court were preoccupied with should have been put on hold pending a determination whether the rulings of a disqualified judge are void and must be vacated, because that determination would facilitate a resolution of most other issues presented, including Perkovich’s right to receive fees for services rendered in violation of her ethical obligations.

         On June 3, we expanded the earlier stay by additionally staying “all trial court proceedings” pending determination of this writ petition or further order of the court.


         The fundamental question presented is whether the rulings of disqualified “Temporary Judge Perkovich” are void and must be set aside. If so, additional questions are whether Perkovich must refund fees she received for her services and whether the disqualifying acts of the temporary judge so tainted the MOA that it must be deemed unenforceable, and so tainted the proceedings before Judge Price that her rulings must also be vacated.


         Disqualified Temporary Judge Perkovich’s Orders Are All Void and Must Be Vacated

         Under section 170.1, “(a) A judge shall be disqualified if any one or more of the following are true: [¶]... [¶] (6)(A) For any reason: [¶]... [¶] (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

         As we have said, Tracy’s motion to disqualify was based on Perkovich’s alleged violation of canon 6D by failing to disclose her personal or professional relationships with Blevans “in writing or on the record” and failure to obtain the parties’ written waiver to disqualification on that ground and file it with the record as required by section 170.3, subdivision (b)(1). The motion to disqualify was also based upon the claim that Perkovich’s conduct during the proceedings over which she presided demonstrated that she was actually biased and prejudiced against Tracy. Tracy maintains that a person aware of the facts Perkovich declined to disclose in writing or on the record, and/or her biased conduct during the proceedings, “might reasonably entertain a doubt that [Perkovich] would be able to be impartial.” (Canon 6D(3)(a)(vii)(C), § 170.1, subd. (a)(6)(A)(iii).)

         The statutory scheme governing the disqualification process, presents three options to a judge whose impartiality has been challenged by the filing of a statement of disqualification. First, the judge may, “[w]ithout conceding his or her disqualification, ... request any other judge agreed upon by the parties to sit and act in his or her place.” [23] (§ 170.3, subd. (c)(2).) The second option is to timely “file a consent to disqualification in which case the judge shall notify the presiding judge... of his or her recusal” and the presiding judge appoints a replacement. (§ 170.3, subd. (c)(3).) The third option is to “file a written verified answer admitting or denying any or all of the allegations contained in the party’s statement and setting forth any additional facts material or relevant to the question of disqualification.” (Ibid.) Presiding Judge Stone held that Perkovich’s October 16, 2014, letter requesting recusal (for reasons independent of Tracy’s allegations in her statement of disqualification) did not constitute a consent to disqualification within the meaning of section 170.1, subdivision (c)(3).[24] Judge Stone therefore applied section 170.3, subdivision (c)(4), which provides that where a challenged judge fails to timely file either a consent or an answer to the statement of disqualification, he or she “shall be deemed to have consented to his or her disqualification.” (§ 170.3, subd. (c)(4)).)

         The meaning of this determination is disputed by the parties: In Tracy’s view, “consent” and “deemed consent” to disqualification” are equivalent to admitting the facts alleged in the statement of disqualification. Jose sees it differently, viewing “consent to disqualification” as consent to being removed from the case without admission of the truth of the alleged basis for disqualification. Jose’s view misinterprets the statutory scheme. As indicated, the option section 170.3 provides for a challenged judge who wishes to consent to disqualification “[w]ithout conceding” there is a factual basis for disqualification is to “request any other judge agreed upon by the parties to sit and act in his or her place.” (§ 170.3, subd. (c)(2).) Perkovich elected not to pursue that course. Nor did she file a response to the motion to disqualify her. Instead, informally, by letter to Judge Stone, she denied Tracy’s allegations and sought recusal on different grounds. Because she elected not to either seek replacement or file a consent or an answer contesting Tracy’s allegations as provided in section 170.3, Perkovich was properly “deemed to have consented” to her disqualification. That determination treats the judge’s failure to file a response to the statement of disqualification as an admission of the truth of its allegations, and authorizes the presiding judge to appoint a replacement.

         It is settled that, as stated in Urias v. Harris Farms, Inc., supra, 234 Cal.App.3d 415, “[w]hen no answer is filed in response to a statement of disqualification, the facts set out in the statement are taken as true.” (Id. at p. 424, italics added.) In support of that proposition, the Urias court cited the statement in Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678 (Oak Grove) that where the “statement of disqualification” of the party seeking disqualification “is legally sufficient and the judge fails to file an answer thereto within five days, [25] the facts alleged in the statement must be taken as true and the judge becomes disqualified automatically.” (Id. at p. 702.) The California Supreme Court was equally clear in Calhoun v. Superior Court (1958) 51 Cal.2d 257, 262: After identifying the two factual issues raised by the statement of disqualification, the court concluded, “since the judge has failed to file a written answer to the statement of bias and prejudice, verified as required by section 170 of the Code of Civil Procedure, the facts alleged in the statement must be taken as true.”

         The opinion in Oak Grove stated that that the failure of a challenged judge to file a verified answer within the specified period “has the same effect as if the judge admits his disqualification or is found disqualified.” (Oak Grove, supra, 217 Cal.App.2d at p. 702.) As Urias, supra, 234 Cal.App.3d 415 explained, a challenged judge “cannot simply ignore [a statement of disqualification]. If the judge does not strike the statement [as untimely or legally insufficient on its face] and wants to contest his disqualification, he must file an answer within section 170.3, subdivision (c)(3)’s 10-day period admitting or denying the allegations in the statement. If he fails to do so, he is deemed to have consented to the disqualification and he is disqualified.” (Urias, at p. 421.) In short, Urias, Oak Grove, and the cases they rely upon stand for the proposition that the facts alleged in a statement of disqualification must be considered true where, as here, the judge whose impartiality was challenged fails to consent to or challenge the allegations of the statement of disqualification.

         Repeatedly dismissing Urias and Oak Grove as “lacking substantive analysis” and “without analytical support” Jose claims they are also distinguishable, because “the facts establishing disqualification in [those cases] were undisputed, making the only relevant issue the legal sufficiency of the statement of disqualification.” According to Jose, unlike the situations in Urias and Oak Grove, the facts alleged in Tracy’s statement of disqualification are disputed. Moreover, Jose argues, because Perkovich declined to answer the statement of disqualification, he was left “with no alternative but to stipulate to her disqualification with the caveat that he did not agree that Perkovich is subject to disqualification for the reasons stated in Tracy’s motion.” In other words, Jose asserts that Perkovich’s failure to dispute the allegations of Tracy’s statement of disqualification cannot deprive him of the right to contest the truth of those allegations. He states, “[b]efore any fact is determined to be true and used to adversely affect a party, that party must be given the opportunity to be heard concerning whether or not those facts are true.”

         The dispute Jose perceives and desires to engage in is whether the unanswered allegations of Tracy’s statement of disqualification are factually true. But he offers no authority for the proposition that a party has a right to dispute grounds for disqualification alleged by another party which the challenged judge does not contest. The only instance in which the statutory scheme appears to allow a party to participate in a disqualification dispute is when the challenged judge files an answer denying any or all of the allegations contained in a statement of disqualification, and the judge deciding the question of disqualification sets the matter for hearing or receives evidence in some other fashion. (§ 170.3, subd. (c)(6).)

         If, as Jose maintains, a judge who files neither a consent nor an answer to the statement of disqualification filed by a party does not dispositively concede the truth of the facts alleged in the statement, a challenged judge’s failure to respond to a motion to disqualify would be relatively inconsequential and render purposeless subdivision (c)(2), which expressly permits a challenged judge to secure a replacement without conceding disqualification. The statutory scheme places the decision whether to contest the factual basis of a statement of disqualification solely in the hands of the challenged judge. Jose fails to appreciate that, as Urias explained and we previously noted (see fn. 15, ante, at p. 14), a request for disqualification is not genuinely a “motion” but in the nature of a charging document: a “written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge.” (§ 170.3, subd. (c)(1).) “[T]he determination of a judge’s disqualification is outside the usual law and motion procedural rules.” (Urias, supra, 234 Cal.App.3d at p. 422.) “While the challenged judge and all parties must be served with the statement of disqualification, the matter need not be set for hearing. Moreover, while the judge determining the issue may request argument or evidence from the other parties, he is not obligated to do so. Accordingly, [a party] cannot complain that it was not given an opportunity to be heard before the judge was disqualified.” (Ibid.) Permitting a party to defend the propriety of allegedly unethical conduct and bias where the challenged judge refuses to respond at all to the charges, and is therefore deemed to have consented to the allegations in the statement of disqualification, would wreak havoc with the disqualification process prescribed by the Legislature in section 170.3.

         Because she pursued neither of the options provided by subdivisions (c)(2) and (c)(3) of section 170.3, Perkovich left Presiding Judge Stone with no alternative but to deem her to have conceded disqualification on the factual bases alleged in Tracy’s motion. Perkovich could have avoided this result by consulting section 170.3 and following one of the options it sets forth for responding to a statement of disqualification. Blevans’s office specifically called her attention to the statute in a letter sent to Perkovich the day after Tracy filed the statement of disqualification. While this letter omitted reference to the option that would have permitted Perkovich to do what Jose now maintains she should be seen as having done-remove herself from the case without conceding the disqualification-this option would have been apparent if Perkovich had referred to the statute. [26] (§ 170.3, subd. (c)(2).) As authorized by section 170.3, provided Judge Stone decided the disqualification issue solely on the basis of the statement of disqualification (§ 170.3, subd. (c)(6)); he did not conduct an evidentiary hearing (ibid.) because Perkovich did not seek or provide any need for a hearing. And while we recognize that Judge Stone made “no finding” as to the truth of the allegations of Tracy’s statement of disqualification, the legal effect of Perkovich’s failure to file a response was that she effectively conceded disqualification was warranted on the grounds alleged and no factual determination by the court was required.

         The dissent objects to our application of these principles on the theory that Perkovich’s letter, although neither verified nor stated under penalty of perjury, was a “response” to the statement of disqualification. In the sense that it was written in reaction to the statement of disqualification, yes. But rather than admitting or denying Tracy’s allegations, the letter was dismissive of the claimed inadequate disclosure, made no mention of the detailed examples of conduct Tracy claimed reflected actual bias, and requested recusal for a reason independent of the alleged basis for disqualification-Perkovich’s professed fear of Tracy. Perkovich was not attempting to “answer” the statement of disqualification within the meaning of section 170.3; she was attempting to circumvent the procedures required by the statute.[27]

         We also take issue with the insistence of the dissent that Tracy’s motion to disqualify was untimely. To be sure, the motion was filed long after the conference at which Perkovich assertedly made her verbal disclosures. But the dissent utterly disregards Tracy’s claim that she did not hear or understand the significance of any such disclosures. Tracy claimed that she learned Perkovich had not disclosed her mutual judging relationship with Blevans in writing or on the record only after her current counsel sought documentation of Perkovich’s disclosures and Perkovich responded that they had been made verbally at the October 2012 conference. Tracy filed her motion to disqualify two weeks later. It is only by assuming Tracy’s claim to be untrue that the dissent can view her to have violated the requirement of moving for disqualification “at the earliest practicable opportunity.” (§ 170.3, subd. (c)(1).) The record provides no basis for this assumption; on the contrary, under the principles just discussed, Tracy’s allegations must be taken as true. Perkovich could have challenged the timeliness of the disqualification motion, but she chose not to do so.

         Jose claims it would raise “fundamental due process concerns” if Tracy’s allegations were accepted as true for any purpose that would “adversely affect Jose.” The authority he cites is In re Marriage of Kelso (1998) 67 Cal.App.4th 374 (Kelso), a marital dissolution proceeding in which the wife’s former attorney sought attorney fees and costs. The commissioner presiding over the case recused himself from determining that issue, stating he was biased against the former attorney, but then, at a hearing with no notice to the former attorney or opportunity for her to be heard, addressed “the whole issue of attorney fees” and ordered the wife to pay $5, 000 as a sanction for making the litigation unduly acrimonious. (Id. at pp. 379-381.) The new judge to whom the issue of the former attorney’s fees had been assigned then refused to conduct a hearing, finding it would be futile in light of the commissioner’s findings that the wife was not entitled to any award of attorney fees and costs. Reversing, the Court of Appeal explained that the judge should not have relied upon findings made by the commissioner after he had recused himself and without providing the former attorney an opportunity to be heard. Because the right to the award is the party’s, not the attorney’s, “a judicial officer who is disqualified from ruling on the motion because of bias against the attorney cannot rule on the motion indirectly by ruling against the party. The issues are too intertwined to permit such a splitting of the disqualification.” (Id. at p. 383.)

         Jose describes Kelso in a parenthetical as holding that “it is error to give conclusive effect to the findings of a Commissioner that were made after he recused himself and without affording one party the opportunity to be heard, ” and does not otherwise explain its applicability to the case at hand. But the situations have nothing in common. In Kelso, the commissioner tried to justify adjudicating matters he was disqualified from hearing by artificially separating the interests of the attorney he was biased against from those of the wife, resulting in the former attorney being denied her right to a hearing on the previously reserved issue of her right to a fee. The case says nothing about a party’s right to be heard when a challenged judge declines to contest the allegations of a statement of disqualification under section 170.3.[28]

         Jose does not explain how he is “adversely affect[ed]” by the factual allegations of the disqualification statement being taken as true. Presumably, his concern is with having lost his chosen decision maker and her rulings, as well as the time and money spent on all the proceedings. As we have no occasion to review the merits of the rulings involved here, neither Jose nor this court can anticipate whether the ultimate outcome of the dissolution proceedings will be more or less favorable to him. While we recognize that a party may be adversely affected by the disqualification of a judge who has participated in a complex proceeding, that price may have to be paid. It is justified by the need for enforcement of the disqualification statutes, which are designed “ ‘to ensure public confidence in the judiciary and to protect the right of litigants to a fair and impartial adjudicator....’ ” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1251.)

         Under section 170.3 and the caselaw we have discussed, we conclude that Perkovich was disqualified for the reasons stated in the statement of disqualification-that is, because a person aware of her failure to disclose her mutual judging relationship with Blevans in writing or on the record, and her conduct indicative of bias and prejudice, might reasonably entertain a doubt about her impartiality. The cases Tracy relies upon, culminating most recently in Christie, supra, 135 Cal.App.4th 767, and Ros ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.