Risk Update

DQ News — California Supreme Court on Judicial Disqualifications and Timeliness, Freivogel Conflicts News Grab Bag

Posted Dan Bressler

New from The Supreme Court of California on judicial disqualification motions and timeliness: “NORTH AMERICAN TITLE CO. v. SUPERIOR COURT S280752” —

  • “This case requires us to interpret various statutes governing the disqualification of judges. In particular, we consider what we refer to as a timeliness requirement set forth in Code of Civil Procedure section 170.3, subdivision (c)(1) (section 170.3(c)(1)),1 and a nonwaiver provision set forth in section 170.3, subdivision (b)(2) (section 170.3(b)(2)).”
  • “The timeliness requirement of section 170.3(c)(1) provides that a party who seeks to disqualify a trial court judge by filing a verified statement of disqualification must do so ‘at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.’ “
  • “The nonwaiver provision of section 170.3(b)(2) provides that, notwithstanding a party’s general ability to waive a disqualification, ‘[t]here shall be no waiver of disqualification if the basis therefor’ falls into one of two categories, one of which is that ‘[t]he judge has a personal bias or prejudice concerning a party’ (§ 170.3, subd. (b)(2)(A)).”
  • “‘We granted review to decide whether the nonwaiver provision precludes application of the timeliness requirement when a party alleges that a judge is disqualified due to bias or prejudice concerning a party. The Court of Appeal held that it does.'”
  • “According to the Court of Appeal, the nonwaiver provision must be read ‘to prohibit all forms of waiver, including implied waiver due to untimeliness.’ (Id. at p. 982.) Under the court’s reading of the statute, a party alleging bias or prejudice cannot ‘waive[]’ its right to seek judicial disqualification (ibid.), even when the claim is asserted long past the point of ‘discovery of the facts constituting the ground for disqualification’ and, for that reason, is not required to assert its claim of judicial bias ‘at the earliest practicable opportunity.'”
  • “We disagree with the Court of Appeal’s interpretation of the statute. It conflates the concepts of waiver and forfeiture, and it extends the statute’s prohibition on waiver to scenarios where forfeiture based on failure to comply with the timeliness requirement may properly be found.”
  • “We thus agree with appellants and Real Parties in Interest Carolyn Cortina et al. (Real Parties in Interest) that the nonwaiver provision is limited to the process of judicial self- disqualification, and it is inapplicable when a party seeks disqualification by filing a written verified statement of disqualification.”
  • “When a party seeks disqualification, the statute’s timeliness requirement contemplates that the litigant may forfeit the right to seek disqualification by failing to file a statement of disqualification ‘at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.’ (§ 170.3(c)(1).) The statute’s nonwaiver provision has no effect on the separate issue of forfeiture in this context.”
  • “We therefore hold section 170.3(c)(1)’s timeliness requirement — that a statement of disqualification filed by a party ‘shall be presented at the earliest practicable opportunity’ — applies even when the alleged basis for disqualification is that ‘[t]he judge has a personal bias or prejudice concerning a party’ (§ 170.3, subd. (b)(2)(A)). On this basis, we reverse the Court of Appeal’s judgment and remand the case for that court to consider in the first instance whether the statement of disqualification filed by North American Title Company (Petitioner) was timely.”

And the latest conflicts cases spotted by Bill Freivogel:

  • Empire Trust, LLC v. Cellura, 2024 WL 4573989 (S.D.N.Y. Oct. 24, 2024).
    • “Douglas Dollinger represents Plaintiff, Empire Trust in this civil fraud case against Defendant, Joseph Cellura. Dollinger currently represents Cellura in a related fraud case. Defendants moved to disqualify Dollinger in this case. In this opinion the court granted the motion to disqualify.”
    • “The court described Dollinger’s arguments against disqualification as ‘scattershot distractions.’ At one point Dollinger argued that his own client did not have the attorney-client privilege. The judge’s reaction was priceless: ‘Think about that for a moment.'”
  •  Harbour Antibodies BV v. Teneobio, Inc., 2024 WL 4554855 (D. Del. Oct. 23, 2024).
    • “Law Firm represents Harbour against Teneobio (‘T Inc’) in this patent-related case. Shortly before Law Firm filed this case, T Inc was acquired by Amgen. Amgen is a client of Law Firm. T Inc moved to disqualify Law Firm in this case. The court referred the matter to a Special Master (‘SM’). The SM filed a report recommending the motion to disqualify be denied.”
    • “In this opinion the court adopted the report and denied the motion. The court agreed with the SM’s view a Rule 1.7(a) conflict exists, but also agreed with SM justice would best be served by allowing Law Firm to continue. This could have gone either way and is of doubtful precedential value. So, we see no gain in an extended discussion of the arguments.”
    • “If you want tips on how to defeat such a motion in the face of a conflict, take a look at the opinion. Warning; The court discusses a ‘thrust upon’ theory in the context of this case. In our 30 years of work in this area, ‘thrust upon’ has been a feature in some ‘hot potato’ cases, but never as here.”
  • M.D. v. S.D., No. 126,599 (Kan. App. Oct. 18, 2024).
    • “We recently wrote of a Canadian case in which the appellate court upheld a trial court’s disqualification of a father representing his son, because the father could not provide objectivity in the representation, Bergeron v. Assemblee parlementaire des étudiants du Quebec Inc., 2024 QCCA 1264 (CanLII) (Ct. App. Que. Sept. 27, 2024). That was a unique holding in Canada.”
    • “We pointed out that we had not seen such a holding in the U.S. Well, we’ve come close with this one, ‘a contentious divorce custody dispute.’ Father and Mother are fighting over custody of four children in, some would day ‘the most contentious case in Johnson County family court.’ Father’s father (‘Grandfather’) attempted to represent Father in this case. The trial court disqualified Grandfather. In this opinion the appellate court affirmed. Both courts relied primarily on Rule 3.7, because Grandfather had testified early on in this case and is likely to do so again. Neither court mentioned material limitation concepts under Rule 1.7, but it would not have been much of a reach to do so.”
  • Via Appia, LLC v. OP Devel., Inc., No. F087160 (Cal. App. Unpub. 5th Dist. Oct. 21, 2024).
    • “Defendants moved to disqualify Plaintiffs’ law firm (‘P Firm’) because P Firm had consulted with, and tendered as Plaintiffs’ expert, an individual, with whom Defendants’ lawyers had earlier consulted about this case. The trial court disqualified both the consultant and P Firm. In this unpublished opinion the appellate court affirmed. The court relied heavily upon a leading case, Shadow Traffic Network v. Super. Ct., 24 Cal. App. 4th 1067 (1994). The analysis is highly fact-specific, and limited to California appellate cases, but is a good review of how far a lawyer may go in messing with the other side’s expert.”