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California Supreme Court:
No-Waiver Proviso in CCP §170.3 Doesn’t Excuse Tardiness
Opinion Says Although Jurist’s Actual Bias May Not Be Waived by Parties, Existence of Bias Doesn’t Overcome Requirement That Statement of Disqualification Be Filed at ‘Earliest Practicable’ Opportunity
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that the proviso in Code of Civil Procedure §170.3, the statute providing for the challenge to a judge for cause, that the parties cannot waive a disqualification where the bench officer “has a personal bias or prejudice concerning a party,” does not excuse a failure to adhere to the requirement that a statement of disqualification be filed “at the earliest practicable opportunity.”
Under subd. (b)(1), when a judge self-reports a disqualification, the parties may waive any objection to the jurist. Subd. (b)(2) provides, however, that no waiver is permissible if “[t]he judge has a personal bias or prejudice concerning a party” or has “served as an attorney in the matter in controversy, or…been a material witness.”
Where a judge “who should disqualify himself” fails to do so, subsection (c)(1) provides:
“[A]ny party may file with the clerk 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. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”
Disqualification Motion Denied
North American Title Company, now known as Lennar Title Inc., challenged the denial of a statement of disqualification filed against Fresno Superior Court Judge Jeffrey Y. Hamilton Jr. in litigation arising out of a class action lawsuit filed by former employees of the companies alleging various wage-and-hour causes of action.
In 2016, Hamilton found the insurer liable after a bench trial. Judgment, however, was not entered until 2022, due to several years of assessing individual damages; the plaintiffs were ultimately awarded approximately $43.5 million.
Before the entry of judgment but after liability was established, the plaintiffs moved to amend the complaint to add as named defendants newly created entities established after the original defendant underwent a series of corporate restructurings and name changes. The plaintiffs alleged that these corporate restructurings were attempts to insulate the defendant from liability.
After a hearing on the motion to amend in June 2020, Hamilton granted the request, saying:
“You know, just at the base of it all, it certainly feels like we are all in a carnival and we’re playing a shell game with a whole bunch of shells, and only one nut. It’s—you know, again, from the face of it, it doesn’t even appear that [Petitioner] is trying to hide it very much, you know, they are playing a shell game on purpose. They’ve got a big potential liability, and they want to try to avoid it.”
The judge made similar comments during a hearing on June 18, 2021.
Statement of Disqualification
North American Title filed a verified statement of disqualification on Aug. 18, 2022. Relying on the 2020 and 2021 comments, the company alleged bias and lack of impartiality on the part of Hamilton.
After Hamilton struck its statement as untimely, North American Title sought writ review.
On May 19, 2023, the Fifth District Court of Appeal, in an opinion by Justice M. Bruce Smith, held that the timeliness requirement does not apply in the case, finding that “a statement of disqualification for bias, prejudice, or appearance of impartiality cannot be found to be impliedly waived as untimely under section 170.3, subdivision (b)(2)” and ordered Hamilton to reinstate it.
Chief Justice Patricia Guerrero wrote the opinion for a unanimous court, reversing the Fifth District’s decision. She said:
“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….[T]he 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.’ The statute’s nonwaiver provision has no effect on the separate issue of forfeiture in this context.”
Text of Statute
Guerrero said that “[i]n considering whether a party attempting to disqualify a trial judge for alleged lack of impartiality is exempt from section 170.3(c)(1)’s requirement that a verified statement of disqualification is to be filed ‘at the earliest practicable opportunity,’ we look first to the text of the statute, read in context.”
Looking to the statutory text, she noted:
“On its face, section 170.3(c)(1)’s timeliness requirement applies to all ‘written verified statement[s]’ of disqualification….The provision declares that when a party seeks to disqualify a judge by filing a written verified statement of disqualification, ‘[t]he statement’ must be presented at the “earliest practicable opportunity.’….Section 170.3(c)(1) recognizes no exceptions to this rule. Under its plain terms, then, section 170.3(c)(1)’s timeliness requirement does not exclude instances in which it is alleged as a ground of disqualification that a judge ‘has a personal bias or prejudice concerning a party.’ ”
Turning to the structure of the section, she remarked that “section 170.3(b)(2) is surrounded by provisions that address circumstances in which a judge has decided that he or she is disqualified” and concluded:
“Petitioner disregards the salient fact that the Legislature positioned section 170.3(b)(2)’s nonwaiver provision between provisions that address only judicial self-disqualification. That the Legislature could have also made the nonwaiver language in subdivision (b)(2) part of subdivision (b)(1) does not diminish the significance of section 170.3(b)(2)’s proximity to sections 170.3, subdivisions (a), (b)(1), and (b)(3)—which are all limited to circumstances where ‘a judge [has] determine[d] himself or herself to be disqualified.’ ”
Waiver Versus Forfeiture
Guerrero said that the argument for a more expansive interpretation advanced by the Fifth District conflates waiver and forfeiture principles. She wrote that “[t]he term ‘waiver’ has indeed been loosely used at times, including in the disqualification context, to signify what is properly understood as a forfeiture” but noted that they are distinct doctrines.
She opined:
“[I]t is evident the Legislature assigned ‘waiver’ a more limited meaning, consistent with its correct usage and with its use in section 170.3, subdivision (b)(1). The written waiver envisioned by section 170.3, subdivision (b) functions as ‘the “intentional relinquishment or abandonment of a known right” ’…— namely, the right not to proceed before a judge who has identified himself or herself as disqualified. Section 170.3(b)(2) prohibits such waivers under specified circumstances; it does not speak to the unintended loss of the right to seek to disqualify a judge because of a failure to take timely action as required by statute.”
Continuing, she wrote:
“To dispel any possible lingering confusion, we stress once more that forfeiture ‘refers to a failure to object or to invoke a right.’….When a party does not raise an objection in the manner required, their failure to do so, without more, constitutes a forfeiture, not a waiver….We encourage courts and litigants to use precise terminology and avoid terms like ‘waiver’ or ‘implied waiver’ when discussing the potential consequence of failing to take timely action pursuant to statute, including the requirement to present a timely statement of disqualification pursuant to section 170.3(c)(1).”
Policy Considerations
Guerrero commented:
“[I]f a party’s right to claim bias, prejudice, or prior involvement in a case does not need to be raised ‘at the earliest practicable opportunity’…and instead can never be forfeited, parties would have an incentive to ‘strategically withhold[] allegations of bias until the most opportune time.’ By engaging in such behavior, a party may gain….a second opportunity to win the merits of the case.”
She added:
“Finally, throughout its analysis, the Court of Appeal emphasized that ‘the disqualification statute should be broadly construed’ to achieve the important objective of ‘instill[ing] public confidence in the judiciary.’….We do not retreat from this principle of liberal interpretation, but ‘[w]hat this principle cannot do is to justify an otherwise erroneous construction.’….In any event, the result we reach here supports, rather than undermines, public confidence in the judiciary. It confirms the ability of parties to challenge judges based on alleged bias or prejudice, it encourages the prompt and efficient adjudication of such challenges, and it discourages litigants from withholding claims of bias or prejudice for strategic reasons.”
The jurist declared that “the Court of Appeal should conduct further proceedings consistent with this opinion, including consideration in the first instance of whether Petitioner’s statement of disqualification was filed ‘at the earliest practicable opportunity.’ ”
The case is North American Title Co. v. Superior Court (Carolyn Cortina), 2024 S.O.S. 3365.
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