Stegs Investments v. Superior Court

Opinion

ASHBY, J.

In this proceeding, we hold that petitioners, who obtained partial reversal on appeal of a superior court judgment, may disqualify the original trial judge from presiding over the partial retrial of the case.

[344]

Facts

This lawsuit involves the dissolution of Stegs Investments, a partnership consisting of petitioners Harley Stegman, Benjamin Stegman (now deceased) and Golda Stegman, and real party Renee Sprecher. Prior to trial, the parties stipulated that the partnership be dissolved; the only issue to be tried was whether there had been a breach of the partnership agreement. The respondent court found that petitioners had breached the agreement in a number of respects, and entered a judgment in favor of real party. Petitioners appealed, and Division Four of this court affirmed the judgment in part, and reversed in part due to erroneous evidentiary rulings by the respondent court. The matter was remanded “to afford defendants [petitioners] an opportunity to present evidence as to the circumstances under which the parties entered into the written partnership agreement.” The remittitur issued on March 26, 1990.

On April 24, 1990, real party’s counsel sent a letter to Judge Wisot’s clerk requesting that the partial retrial of the case be heard by Judge Wisot. On April 27, 1990, petitioners’ counsel wrote to Judge Wisot requesting that he consider disqualifying himself should the matter be reassigned to him. Judge Wisot did not reply to this letter, but real party’s counsel responded a few days later with another letter to Judge Wisot, once again requesting that the remanded matters be heard by him.

As a precautionary measure, petitioners’ counsel took steps to preserve petitioners’ right to disqualify Judge Wisot. On April 30, 1990, counsel telephoned a clerk in the master calendar department to ascertain the court’s policy in assigning remitted cases. Counsel was informed that “such cases would go back to the Master Calendar if not ‘fast track’ matters.” Counsel confirmed this advice in writing in a follow-up letter to the master calendar court.

Petitioners also filed a motion to compel discovery and set the hearing on the motion in a law and discovery department of the superior court. Real party’s counsel once against requested that the matter be heard by Judge Wisot. On June 29, 1990, petitioners’ counsel called Department 31 (Judge Wisot’s court) to find out if the July 2 discovery hearing had been transferred to that department. Counsel was advised by the clerk that there was no hearing on calendar for July 2.