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Case of the Month Archive

April 2023

There was no bias or appearance of bias supporting trial judge's disqualification based on her judicial colleague's actions. . .


In a denial of petition for a writ of mandate, the Second District held that there was no bias or appearance of bias to support a trial judge's disqualification where the trial judge's judicial colleague, who was a former partner of the law firm representing plaintiff, briefly attended as an observer a proceeding in the action and later sent a celebratory text message to the trial judge in response to a jury verdict in favor of plaintiff; where some of the actions by the judicial colleague overlapped with the trial judge's evidentiary ruling favorable to plaintiff; and where the trial judge directed judicial colleague to have no further communications with her regarding the action and promptly disclosed her judicial colleague's actions to the parties.


Bassett Unified School District v. Superior Court (Michael Ross)

(March 14, 2023)

California Court of Appeal 2 Civ B323528 (Div 5) 2023 WL 2494088, ___ Cal.App.5th ___, ___ Cal.Rptr.3d ___, 2023 FA 2074, per Rubin (Baker, J., and Wiley, J., concurring). Los Angeles County: Bowick, J., and Orange County: Hernandez, J., petition for writ of mandate denied. For Bassett Unified School District (Petitioner): Robert A. Olson, Edward L. Xanders, Thomas Matthew Madruga, and Deborah Ann Lee-Germain. For Michael Ross (Real Party in Interest): Rodney Sean Diggs, Darryl Avery Meigs, Britany Michelle Engelman, James Albert Bryant, and Tracy Lee Fehr. CFLP §C.68.2.


The evidentiary ruling and the $25 million jury verdict. . .
On June 28, 2019, Michael Ross sued Bassett Unified School District for wrongful termination, alleging that the school district fired him in retaliation for filing a prior lawsuit against the school district for racial discrimination. The wrongful termination action was assigned to Judge Stephanie Bowick of the Superior Court of Los Angeles. The school district filed a pretrial motion seeking to limit Ross's use of allegations of racial discrimination that he made in the prior, settled lawsuit. At a pretrial conference on July 5, 2022, Judge Bowick made a tentative ruling that the jury could be informed of the allegations of racial discrimination in only a general sense. After further discussion of the evidentiary issue the next day, Judge Bowick indicated she was considering revising her ruling. Then on July 7, 2022, Judge Bowick noted she would be revising her previous ruling in order to broaden the admissibility of claims of racial discrimination, stating "'after further consideration of the arguments of the parties, [the trial court decided to] allow plaintiff to give a brief explanation of the claims in the [previous] lawsuit and not be limited to the names of the parties and the causes of action only.'" On July 8, 2022, the trial court ruled that Ross was allowed to introduce several instances of claimed racial discrimination on which the first lawsuit was based. After trial, the jury returned a verdict in favor of Ross in the amount of $25 million.


Judge Bowick discloses the actions of her judicial colleague. . .
On July 29, 2022, the trial court held a posttrial conference in which Judge Bowick disclosed certain events related to the case. First, Judge Bowick stated that she is aware that Judge Rupert Byrdsong, a judicial colleague who sits just down the hall from her chambers, was previously a partner at the law firm representing Ross. Judge Bowick stated that at the end of the workday on June 27, 2022, the day in which she first heard the school district's motion in limine regarding the admissibility of Ross's allegation of discrimination, she and Judge Byrdsong exited the building together and Judge Byrdsong "'commented that he had noticed lawyers from his old firm in [her] courtroom.'" Judge Bowick stated that they "'did not speak any further about that observation or about the case.'"

Judge Bowick also disclosed that during a break in the jury selection on July 6, 2022, Judge Byrdsong entered her courtroom and spoke briefly with Ross's counsel and legal assistants. Judge Bowick added that she did not hear their conversation and Judge Byrdsong left before jury selection resumed. Later that same day, while proceedings were in session, Judge Byrdsong returned to the courtroom and told Judge Bowick's judicial assistant that he had "'a food item'" for Judge Bowick. He later returned "'to deliver a small container of food which he handed to [her] judicial assistant.'"

Judge Bowick further stated that on July 7, 2022, during voir dire, she noticed Judge Byrdsong sitting in the audience and passed a note through her judicial assistant asking him to leave the courtroom, which he did immediately. Judge Bowick noted that she later "'confirmed with Judge Byrdsong that he would not attend any further proceedings in the action.'" Judge Bowick added that Judge Byrdsong was not wearing his judicial robe on any occasion that he visited the courtroom and he "'did not return to the courtroom after July 7, 2022.'"

Lastly, Judge Bowick disclosed that two days after the trial concluded, Judge Byrdsong sent a text message to her that read "'$25 Million!!'" followed by two confetti emojis. Judge Bowick added that she did not respond to this message and later asked him not to have any further communication with her about the case. Judge Bowick ended her disclosure by stating that "Judge Byrdsong and I have never had any discussions about any parties, facts, or legal issues relating to this case, its merits or rulings that I have made or will make in the future."

In response to this disclosure, the school district's counsel stated that "this is obviously news to the defense.'" Ross's counsel replied "'Obviously, all counsel was there when Judge Byrdsong came in the court, but there was no conversations that was had with Mr. Byrdsong other than the pleasantries, "Hello," and at no time during the trial did plaintiff or anyone on plaintiff's team have any communication with Judge Byrdson[g] about the case, regarding the case, any updates about the case, and that was it.'"


The school district moves to disqualify Judge Bowick. . .
On August 5, 2022, the school district moved to disqualify Judge Bowick on the basis that a person aware of the facts would reasonably entertain doubt that she would be able to be impartial. The school district's motion relied on Judge Bowick's disclosure and on a verified statement from the school district's attorneys. The verified statement was a single statement that contained verification from two attorneys and a paralegal and provided that when Judge Byrdsong greeted Ross's counsel "'[t]here were handshakes, hugs, and high fives….'" Moreover, the statement claimed that on July 6, 2022, Judge Bowick invited Judge Byrdsong back into her chambers and that "'the day after Judge Byrdsong went back into chambers with Judge Bowick, Judge Bowick changed her prior ruling and allowed in evidence as to the specific allegations of race discrimination from the prior lawsuit….'"

Judge Bowick filed a verified answer in which she stated that she never invited Judge Byrdsong into chambers and that she would have disclosed that fact if it had occurred. Judge Bowick further stated "'I also asked my Judicial Assistant whether he recalled such an event and confirmed that he did not.'"

On August 23, 2022, the Judicial Council assigned Judge Maria Hernandez from the Orange County Superior Court to rule on the disqualification motion. On September 15, 2022, the trial court (Orange County's Hernandez) denied the school district's motion to disqualify Judge Bowick. The school district filed a petition for writ of mandate challenging the trial court's order denying disqualification. The school district further sought an immediate stay of postverdict proceedings. The Second District issued the stay as well as an order to show cause but ultimately denied the school district's petition for writ of mandate.

At the outset of their analysis, the justices described the relevant authority the school district relied on in its request to disqualify Judge Bowick. CCP §170.1(a)(6)(A)(iii) provides that a judge shall be disqualified if "'[f]or any reason: [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.'" This standard is from the perspective of the objective layperson. This standard, the court noted, is not from the perspective of "'judicial insiders,'" who being accustomed to dispassionate decision making, risk "'regard[ing] asserted conflicts to be more innocuous than an outsider would.'" Litigants also are not disinterested objective observers since they are inherently partisan. Instead, the court should determine how a judge's "'participation in a given case looks to the average person on the street.'" The justices further noted that the party requesting the disqualification carries a "'heavy burden.'"

The panel next held that the trial court's implied finding that Judge Bowick did not meet with Judge Byrdsong is supported by substantial evidence. First, Judge Bowick denied this meeting. And second, the verification by the school district's legal team "contain[ed] internal inconsistences." For example, the statement was inconsistent about when each declarant realized Judge Byrdsong was a judge. The justices reasoned that these inconsistencies, as well as Judge Bowick's initiative to disclose these events, supported the trial court giving greater weight to Judge Bowick's assertion that this meeting did not occur.

The justices held that substantial evidence also supported the trial court's finding that Judge's Bowick's ruling permitting allegations of racial discrimination was based on her view of the law and facts, not as the result of Judge Byrdsong's general influence. The justices first pointed out that "there is nothing intrinsically suspicious about a judge changing her ruling on a motion in limine." A review of the chronology of the ruling revealed Judge Bowick's "evolving thought process." For example, the day after making her tentative ruling, Judge Bowick was already indicating she would broaden the scope of admissibility. Moreover, Judge Bowick issued her final, broader ruling only after the parties submitted additional arguments and all documentation relevant to the issue. Finally, the justices found the school district's claim that Judge Bowick revised her ruling due to influence from Judge Byrdsong "unpersuasive" and "speculative."


An objective observer would not doubt Judge Bowick's impartiality. . .
Turning to the primary issue on appeal, the panel held that based on the facts disclosed by Judge Bowick, no disinterested observer would reasonably question her impartiality. Since "the relevant facts involve little that Judge Bowick did or said," the question turns on the actions of her judicial colleague, Judge Byrdsong. First, Ross's attorneys conceded, and the justices agreed with their concession, that Judge Byrdsong's comment to Judge Bowick that his former law firm was representing Ross was not inappropriate. Second, the fact that Judge Bowick asked Judge Byrdsong to leave her courtroom does not indicate that her impartiality was negatively impacted but instead suggested that "if Judge Bowick perceived that Judge Byrdsong was intent on influencing her, she would have nothing of it." And finally, when Judge Bowick received the celebratory text from Judge Byrdsong in response to the verdict, she not only refrained from responding but she later directed Judge Byrdsong to no longer communicate with her regarding the case. For these reasons, the justices agreed with Judge Hernandez that these events would not cause an objective observer to doubt Judge Bowick's impartiality. Accordingly, the Second District denied the school district's petition for writ of mandate.





Attorneys considering a motion to disqualify their judge for "cause" pursuant to CCP §170.1 should exercise careful judgment. Not only does the party asserting disqualification carry a "heavy burden" and must "clearly establish the appearance of bias," but some judges may perceive the challenge as a personal attack on their integrity. For a detailed discussion regarding challenges for cause, see Wegner, Fairbank, Epstein & Chernow, California Practice Guide: Civil Trials and Evidence (The Rutter Group), Chapter 3.


Library References
16 Witkin, Summary of Cal. Law (11th ed. 2022) Juvenile, §88
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶¶5:441, 16:439



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