Geldermann, Inc. v. Bruner

Opinion

KING, J.

In this case we hold that when a trial judge voluntarily disqualifies himself after completion of a court trial and the issuance of a tentative decision, he is statutorily precluded from any further action in the case, including the issuance of a statement of decision, except for those limited activities permitted by Code of Civil Procedure section 170.4, subdivision (a).

Alston L. Bruner appeals a judgment awarding Geldermann, Inc., a $150,000 real estate commission. The case went to trial in April 1988. All parties waived their right to challenge Judge Howard L. Schwartz based on his disclosure that his wife was a licensed real estate broker. On October 17, 1988, the trial court filed a 38-page tentative decision which was to become the statement of decision “unless either party specifies controverted issues or makes proposals not covered” therein. On October 31, Bruner filed a request for statement of decision (Code Civ. Proc., § 632) specifying 50 “controverted issues.” The trial court ordered Geldermann to prepare and submit a proposed statement of decision and judgment (Cal. Rules of Court, rule 232(c)).

[664]

In a minute order dated November 23, 1988, Judge Schwartz revealed that he had placed his home on the market on or about November 4, had received an offer to purchase from Geldermann’s attorney, Stephen Kass, on November 9, and entered into a purchase contract on November 22. On December 6, Bruner filed a motion for peremptory disqualification (Code Civ. Proc., § 170.6) and a statement of disqualification (Code Civ. Proc., § 170.1). The next day, Bruner filed objections to Geldermann’s proposed statement of decision. In a minute order dated December 9, 1988, Judge Schwartz notified the parties that Kass had terminated the purchase contract the previous afternoon. At a December 12 hearing Bruner refused to withdraw his disqualification motion, Kass offered to withdraw as Geldermann’s attorney, and Judge Schwartz refused to rule on any pending motions “until the disqualification matter is resolved.” On December 15, Judge Schwartz filed an answer to the statement of disqualification (Code Civ. Proc., § 170.3, subd. (c)(3)).

On February 27, 1989, Judge Daniel M. Hanlon denied Bruner’s disqualification motion. On March 7, we denied Bruner’s petition for writ of mandate and request for immediate stay on the grounds that “trial has already commenced and been completed (citations), and any error affecting the remainder of the proceedings may be adequately reviewed on appeal from the final judgment.” On March 30, the Supreme Court granted review and transferred the matter to us with directions to reconsider the petition on its merits. On April 7, we denied Bruner’s renewed request for a stay.