North American Title Co. v. Super. Ct. (2023) · DecisionDepot

North American Title Co. v. Super. Ct.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal Jun 13, 2023 No. F084913MPublished

Filed 6/13/23 Modification and Denial of Rehearing (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

NORTH AMERICAN TITLE COMPANY et al., F084913 Petitioners, (Super. Ct. No. 07CECG01169) v.

THE SUPERIOR COURT OF FRESNO ORDER MODIFYING OPINION COUNTY, AND DENYING REHEARING [NO CHANGE IN JUDGMENT] Respondent,

CAROLYN CORTINA et al.,

Real Parties in Interest. THE COURT: It is ordered that the following modification be made to the published opinion filed herein on May 19, 2023:

1. On page 2, the third sentence of the first paragraph beginning with “At the time of the comments” is deleted and replaced with the following sentence:

“At the time of the comments, no judgment had been entered, and issues of fraudulent transfer, alter ego, or successor liability were never properly presented to the court, let alone ultimately decided.”

2. On page 44, following the sentence “Rather, the statement was sufficient and the issue of disqualification should have been reviewed on the merits by another judge. (§ 170.3, subd. (c)(5).),” add as footnote 10 the following footnote, which will require renumbering of all subsequent footnotes:

“It was necessary to discuss the merits of petitioner’s arguments of bias to determine the facial sufficiency of the statement of disqualification. To note, this holding is focused solely on the determination whether the statement for disqualification was facially sufficient. It is not, nor is it

intended to be, an ultimate finding if disqualification is required under section 170.1, subdivision (a)(6)(A)(iii).”

There is no change in the judgment. Real party in interests’ petition for rehearing is denied.

SMITH, J. WE CONCUR:

PEÑA, Acting P. J.

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Petitioner, formerly known as North American Title Company, Inc. and now known as Lennar Title, Inc. (Lennar Title), alleges the trial judge improperly struck its statement of disqualification for cause as untimely, insufficient, and successive. (See Code Civ. Proc.,1 § 170.4, subds. (b), (c)(3).) During oral argument, the trial judge made comments accusing petitioner and other defendants of participating in a “name change shell game,” a “corporate game of three-card monte,” and that they were engaged in “more trickery” and “scheming” to evade payment. At the time of the comments, no judgment had been entered, and issues of fraudulent transfer, alter ego, or successor liability were never presented to the court, let alone ultimately decided. Petitioner filed the instant statement for disqualification for cause roughly a year after the comments were made, but during which time the superior court judge was subject to preemptory disqualification under section 170.6 and disqualification for cause by codefendants, and the matter was stayed pending appellate review of those filings. The trial judge struck petitioner’s statement for disqualification as untimely asserting petitioner knew of the statements for years before seeking disqualification; successive based on finding petitioner was inextricably intertwined with codefendant and treated petitioner as if it, not codefendant, had filed the prior statement of disqualification; and insufficient for failing to allege facts to support a finding requiring disqualification. Upon review, we determine 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). (§ 170.3, subd. (b)(2) [“There shall be no waiver of disqualification if … [t]he judge has a personal bias or prejudice concerning a party.”].) Additionally, petitioner had never filed a prior statement of disqualification and the statement was not insufficient on its face. Finding the order striking the statement of

disqualification flawed in several respects, we grant the writ and order the superior court to vacate the order striking the statement of disqualification. As the statement of disqualification was stricken seven days after it was served, the trial judge shall be provided three days from the date the statement of disqualification is reinstated to respond before being deemed to have consented to disqualification by operation of time. (§ 170.3, subd. (c)(3) & (4).) FACTS Overview of the Superior Court Proceeding In 2007, plaintiff Carolyn Cortina filed a class action complaint alleging various wage and hour violations against her employer, then named North American Title Company, Inc., a California corporation. The complaint was amended in 2009 and 2010 to add 12 additional named plaintiffs and class representatives. In 2010, the superior court granted certification to two classes; the “exempt” and “non-exempt” subclasses, referring to groups of employees that were categorized as salaried and hourly-wage employees, respectively. Before proceeding to a court trial in September 2015, class representatives dismissed statutory wage and hour causes of action under the Labor Code and proceeded solely under Business and Professions Code section 17200 et seq., also known as the unfair competition law. In October 2016, following an approximate 41-day bench trial, the trial judge issued a statement of decision decertifying the non-exempt class and finding liability in favor of class representatives as to the exempt class. In the statement of decision, the trial judge held “due to the consumption of time that would be required to assess the amounts of individual restitution,” it appointed a referee to determine damages based on the individual testimony of both class representatives and absent class members. Over the course of several years following the liability phase of trial, the referee held individual hearings and obtained testimony of nearly 250 class members. Judgment was ultimately

Lennar Title and Doma Title, which both parties relied upon to seek to disqualify the trial judge for cause. (§ 170.3, subd. (c).) Efforts to Conduct Financial Discovery and to Add Doma Title as a Party Starting in April 2019, class representatives moved to reopen discovery to conduct a limited investigation into Lennar Title’s finances and the relation of Lennar Title to the other entities involved in the business transaction. Lennar Title opposed reopening discovery as the original discovery cutoff expired seven years earlier in 2012. Alternatively, Lennar Title argued class representatives had yet to obtain a judgment and could not avail themselves to the discovery entitled to judgment creditors. The trial judge granted the request to reopen discovery, and additional discovery motions followed. The dispute culminated with Lennar Title filing a petition for writ of mandate with this court. We issued a temporary stay of the deposition of Lennar Title’s person most knowledgeable pending the determination of the writ petition, but ultimately denied the petition and lifted the stay on November 26, 2019. The order noted Lennar Title “raises legitimate concerns regarding whether discovery of financial information is relevant (see Civil Code, § 3295) and statutorily authorized to be conducted during trial. (Code Civ. Proc., §§ 2024.020, 2024.050.)” Ultimately, we held Lennar Title had not made a showing of irreparable harm as it was entitled to object to the production of attorney- client privileged communications. Having conducted discovery, class representatives moved to amend the complaint to add “North American Title Company, Inc.” and “Cal Atlantic Title Company, Inc.” as defendants. Two points created significant confusion. First, class representatives had misnamed Lennar Title as “North American Title Company” rather than “North American Title Company, Inc.” in their first two complaints. No corporation operating in California was legally named “North American Title Company,” but class representatives refused to remove the name from the caption under the belief Lennar Title was operating

“So this isn’t a situation where I think the idea that there’s some kind of shell game, which infers some nefarious purpose, that isn’t what happened here. We have provided the -- CalAtlantic Title Company, Inc., has provided extensive transaction documents to the plaintiffs. They produced the list of assets that were transferred. They produced the information about what was received in exchange for those assets. They’ve provided information about what remains operating under CalAtlantic Title in California. So I think the inference that there’s some type of effort in this case, or that this transaction somehow was motivated by this case, certainly that’s not the defendant’s perspective.” After supplemental briefing was submitted, the trial judge granted the motion to amend in contravention of the positions expressed in his tentative ruling. He found “North American Title Company” and “North American Title Company, Inc.” were the same entity, even though “North American Title Company, Inc.” was the name of Doma Title at the time. The order thereby added Doma Title to the action. Failure to Serve Doma Title with a Summons and Complaint On March 10, 2021, class representatives filed a third amended complaint naming Doma Title as a defendant. The complaint was not served on Doma Title; rather, class representatives only e-mailed a copy of the complaint to counsel for Lennar Title. Although it was not served, Doma Title specially appeared in the action and moved to quash for lack of service of process on April 8, 2021. Doma Title argued since it was not served with a summons and complaint, the court lacked jurisdiction over it as a party to the litigation. Class representatives opposed the motion on several grounds. They argued the court had personal jurisdiction over Doma Title based on its minimum contacts and presence in California. Class representatives also believed service was not necessary as the newly added defendant was not a new party, but rather a different name

summons is a prerequisite to acquisition of jurisdiction.’ ” (North American Title Co. v. Superior Court (Sep. 16, 2021, F082969) [nonpub. opn.], p. 7, citing Pousson v. Superior Court of San Diego County (1958) 165 Cal.App.2d 750, 752.) We described how the class representatives’ assertion Doma Title had effectively been a party to the litigation since its inception conflicted with foundational rules of California corporation law. (North American Title Co. v. Superior Court (Sep. 16, 2021, F082969) [nonpub. opn.], p. 9.) Under the Corporations Code, the name of a corporation is set forth in the company’s articles of incorporation filed with the Secretary of State. (North American Title Co. v. Superior Court (Sep. 16, 2021, F082969) [nonpub. opn.], p. 8.) “[A] copy of the articles of a corporation duly certified by the Secretary of State is conclusive evidence of the formation of the corporation and prima facie evidence of its corporate existence.” (Ibid.; citing Corp. Code, § 209, italics added.) Based on the articles of incorporation filed with the Secretary of State, we held Lennar Title and Doma Title were separate legal entities under California law with different corporate entity numbers, different corporate officers, and different agents for service of process. (North American Title Co. v. Superior Court (Sep. 16, 2021, F082969) [nonpub. opn.], pp. 9-10.) To the extent the trial judge made legal and factual findings Lennar Title and Doma Title are the same legal entity, we held such findings “cannot stand, regardless of the standard of review.” (Id. at p. 10.) Service on Doma Title and Attempts to Disqualify the Trial Judge On September 23, 2021, class representatives filed, and the trial judge granted, an ex parte request to issue summons and conduct a deposition of the person most knowledgeable for Doma Title. Class representatives served Doma Title with summons and the operative complaint on September 27, 2021, and immediately propounded discovery.

A week later, on October 4, 2021, Doma Title filed a peremptory challenge to disqualify the trial judge under section 170.6. He denied the challenge as untimely on October 6, 2021. On October 21, 2021, Doma Title submitted a petition for writ of mandate to this court contending the trial judge erred in denying its peremptory challenge under section 170.6. While the writ was pending, the parties continued to prosecute the underlying litigation in the superior court. On October 29, 2021, class representatives filed an ex parte motion for several forms of relief. They noted Doma Title’s corporate status had been listed as suspended and requested all filings made by Doma Title from the time of the suspension be struck. They also sought to compel the deposition of Doma Title’s person most knowledgeable. On the same date, Doma Title filed a verified statement to disqualify the trial judge for cause. Doma Title alleged “ ‘a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial,’ ” and “ ‘the judge has displayed bias or prejudice toward a lawyer in the proceeding’ ” under section 170.1, subdivision (a)(6)(A)(iii) and (a)(6)(B). Specifically, Doma Title claimed the trial judge had prejudged its liability and evinced animus against it based on the comments made at the hearing on the motion to quash. The trial judge issued a verified answer to Doma Title’s statement of disqualification. He proffered his explanations regarding his repeated comments defendants were engaging in a “ ‘shell game’ ” and a “ ‘corporate game of three-card monte.’ ” He did not deny making the comments. Instead, he provided his reasoning, “[i]t appeared that the changing of names – and potentially corporate parties five years post statement of decision and pre-entry of judgment – was being employed ‘by DEFENDANT’ (NATC) to avoid what everyone now knew would be a judgment in the tens of millions of dollars when judgment finally entered.” (Emphasis in original; fn. omitted.) Additional statements in the answer clarified the comments were directed not

judicial disqualification as moot. Class representatives noted Doma Title was refusing to participate in discovery and intended to file a demurrer to seek its dismissal from the action. Doma Title planned to assert in its demurrer that the claims against it were barred by the statute of limitations, and as it did not exist as a corporate entity until 2018, the operative complaint failed to show it would be liable for wage and hour claims arising from the employment of class members prior to its existence. Acknowledging such disputes may take years to adjudicate, class representatives sought to dismiss Doma Title so that it could proceed to attempt to obtain a final judgment in the matter. On January 6, 2022, this court issued an alternative writ order directing the superior court to either vacate its October 6, 2021 order denying the motion to disqualify under section 170.6 or show cause why the requested relief should not issue. The order directed respondent superior court to inform this court of its decision within 30 days. On January 20, 2022, class representatives filed a request for a continuation of the hearing in the superior court to discuss how to respond to the alternative writ order. Noting it may be problematic for the trial judge to rule on the request for dismissal of Doma Title in light of the pending disqualification motions, class representatives set an ex parte hearing in front of a different superior court judge to address the dismissal request. The trial judge granted the continuance and set the hearing on the alternative writ order on January 28, 2022. Class representatives proceeded to file the ex parte request to dismiss Doma Title before a different judge noting the purpose of the dismissal was to render the peremptory challenge filed by Doma Title and the resulting order to show cause moot. Doma Title did not oppose its dismissal from the action, but Lennar Title provided objections to the request. It noted class representatives had not provided a showing of irreparable harm or immediate danger to have the motion be heard ex parte, let alone before a judge not assigned to the matter. On January 25, 2022, the other judge dismissed Doma Title from the action without prejudice.

Afterwards, the trial judge held the hearing on the alternative writ order. Referring to the dismissal of Doma Title, the trial judge found good cause not to vacate his order denying the peremptory challenge. In response, this court issued an order to show cause on February 9, 2022, and stayed the proceeding in the superior court pending determination of the writ proceeding. On April 1, 2022, Kings County Superior Court Judge Randy Edwards, sitting by special assignment as a Judge of the Fresno County Superior Court, requested transcripts to review the request for disqualification for cause of the trial judge, and noted he would decide the matter within 15 days of receipt of the transcripts. On June 28, 2022, this court issued its ruling denying the petition for writ of mandate seeking review of the denial of the peremptory challenge under section 170.6. (Doma Title of California, Inc. v. Superior Court (June 28, 2022, F083454) [nonpub. opn.].) We held the timeliness provision in section 170.6, subdivision (a)(2) provided that “ ‘[i]n no event shall a judge ... entertain’ a peremptory challenge after trial has commenced.” (Doma Title of California, Inc. v. Superior Court (June 28, 2022, F083454) [nonpub. opn.], p. 2.) “[T]he fact Doma Title was a new party did not impact the application of the deadline imposed by section 170.6, subdivision (a)(2) that prohibits peremptory challenges after trial has commenced.” (Doma Title of California, Inc. v. Superior Court (June 28, 2022, F083454) [nonpub. opn.], p. 15.) In making the determination, this court noted “[n]othing in this opinion should be read as implying that these entities are, or are not, alter egos or that Doma Title is, or is not, a successor in interest liable for the debts of Former NATC/Lennar Title.” (Doma Title of California, Inc. v. Superior Court (June 28, 2022, F083454) [nonpub. opn.], p. 5.) The order discharged the alternative writ as improvidently granted and ordered the stay be vacated upon the finality of the opinion. (Id. at p. 16.)

On July 28, 2022, Judge Edwards denied the disqualification request without prejudice. The order explained the motion to disqualify was made moot by the dismissal of Doma Title from the action. Since the dismissal was without prejudice, the denial of disqualification was likewise without prejudice should Doma Title again become a party to the proceeding at a time subsequent to the order. Lennar Title Files Statement of Disqualification for Cause Having resolved Doma Title’s motions to disqualify, class representatives filed a status conference statement requesting the trial judge enter judgment as soon as possible. Before any substantive hearings took place, on August 18, 2022, Lennar Title filed a verified statement to disqualify the trial judge for cause on the grounds that (1) “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial,” and (2) the judge has displayed “[b]ias or prejudice toward a lawyer in the proceeding.” Lennar Title relied on the same comments as Doma Title, as well as statements in the trial judge’s answer to Doma Title’s statement of disqualification for cause explaining the comments were directed towards Lennar Title, not Doma Title. On August 26, 2022, the trial judge issued the order striking Lennar Title’s statement of disqualification that is subject to review in this petition. First, he held the statement was untimely. He noted the first comments which formed the basis of the statement of disqualification occurred two years earlier in June 2020. The trial judge found Lennar Title should not have waited to see if defendants would obtain a favorable ruling on Doma Title’s statement of disqualification before filing its own statement of disqualification. Next, the trial judge determined the statement of disqualification was properly stricken as a second and successive attempt to disqualify him for cause. (§ 170.4, subd. (c)(3).) He found Lennar Title and Doma Title to be “inextricably intertwined” and therefore the same party for purposes of the disqualification statute. Finally, the trial

disqualification,’ as required by section 170.3, subdivision (c)(1), requires an evaluation of undisputed facts in light of an objective standard and, therefore, is subject to de novo review.” (Jolie v. Superior Court (2021) 66 Cal.App.5th 1025, 1042 (Jolie).) Moreover, the core questions in this case involve statutory interpretation, including the meaning of the term “ ‘at the earliest practicable opportunity’ ” and the interplay of various provisions of sections 170.3 and 170.4 pertaining to timeliness and waiver. These are questions of statutory interpretation to be considered de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247.) To the extent portions of this opinion review the merits of the claims of bias or the appearance of lack of impartiality, the de novo standard also applies. “The weight of authority supports that where, as here, the relevant facts are undisputed, a de novo review standard applies to a section 170.1(a)(6)(A)(iii) challenge to a claimed appearance of partiality.” (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 391-392 (Wechsler).) As writ review is the exclusive method for seeking review of claims of statutory disqualification, the writ cannot be discretionarily denied. “The discretionary aspect of writ review comes into play primarily when the petitioner has another remedy by appeal and the issue is whether the alternative remedy is adequate.” (Powers v. City of Richmond (1995) 10 Cal.4th 85, 113-114.) “When an extraordinary writ proceeding is the only avenue of appellate review, a reviewing court’s discretion is quite restricted.” (Ibid.) Where a petitioner has a “substantial right to protect or enforce, and this may be accomplished by such a writ, and there is no other plain, speedy and adequate remedy in the ordinary course of law, [petitioner] is entitled as a matter of right to the writ, or perhaps more correctly, in other words, it would be an abuse of discretion to refuse it.” (Ibid.) Section 170.3, subdivision (d) states, “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ

of mandate from the appropriate court of appeal sought only by the parties to the proceeding.” This court’s ordinary authority to rely on discretionary reasons to decline review is therefore constrained. II. History of the Right to Strike Statements of Disqualification A. Enactment and Liberal Construction of Disqualification Statute For over 130 years, section 170 has entitled parties to seek judicial disqualification. (See generally, Howell v. Budd (1891) 91 Cal. 342, 353 (Howell).) Since its enactment, the Supreme Court has invariably held the disqualification statute should be broadly construed. (§ 4 [The provisions of the Code of Civil Procedure “are to be liberally construed, with a view to effect its objects and to promote justice.”]; Howell, supra, 91 Cal. at p. 353; People v. Thomas (1972) 8 Cal.3d 518, 520 (Thomas).) The broad application of the statute had an important purpose – to instill public confidence in the judiciary. “ ‘A sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance.’ ” (Meyer v. San Diego (1898) 121 Cal. 102, 106 (Meyer).) “ ‘It should be the duty and desire of every judge to avoid the very appearance of bias, prejudice, or partiality.’ ” (Ibid.) “The object of section 170 ‘is not only to guard jealously the actual impartiality of the judge but also to insure public confidence.’ ” (Thomas, supra, 8 Cal.3d at p. 520.) “ ‘It is the design of the law to maintain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the community.” (Lindsay- Strathmore Irrigation Dist. v. Superior Court of Tulare County (1920) 182 Cal. 315, 334 (Lindsay-Strathmore Irrigation Dist.) [“[I]t is of great importance that the courts should be free from reproach or the suspicion of unfairness.”].) B. Judicially Created Right to Strike Insufficient and Untimely Statements of Disqualification Over time, certain limitations have been placed on the right to seek judicial disqualification, including the right of the trial judge to strike insufficient statements of

amendment, the sufficiency of the statement of disqualification, which the trial judge could previously review, “must now clearly be referred to another judge.” (Penthouse International, Ltd. v. Superior Court (1982) 137 Cal.App.3d 975, 980 (Penthouse).) Proponents of the legislation argued “that in order to insure both propriety and the appearance of propropriety [sic], no judge, including those from single judge courts, should make a ruling on any matter dealing with his or her disqualification.” (Id. at p. 981.) The State Bar of California provided a statement justifying the amendment, observing, “ ‘[this] anomalous case law creates substantial potential for impropriety and for the appearance of impropriety. It permits a challenged judge to totally avoid the disqualification hearing and, in essence, to rule upon his disqualification, thereby leaving the party purporting to be aggrieved to the uncertain remedy of a prerogative writ.’ ” (Penthouse, supra, 137 Cal.App.3d at p. 981.) “ ‘The proposed amendment eliminates the anomaly and requires that all issues concerning disqualification for cause be determined by another judge.’ ” (Ibid.) D. Major Revisions and Modernization of Section 170 in 1984 Not long thereafter, the entire statutory framework for disqualifying judges for cause was revised and modernized. In 1984, Senate Bill No. 1633 (1983-1984 Reg. Sess.) (Senate Bill No. 1633) was enacted, revising section 170, and adding sections 170.1 through 170.5 to the Code of Civil Procedure. Relevant here are two major revisions to the procedural framework for disqualification. First, the Legislature reinstituted the right of trial judges to strike untimely and legally insufficient statements of disqualification. Section 170.4, subdivision (b) states: “[I]f a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken.” (§ 170.4, subd. (b).)

furthered when a judge who is reasonably thought to be biased in a matter hears the case.” (United Farm Workers at p. 103.) “The standard for disqualification … is fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man would entertain doubts concerning the judge’s impartiality, disqualification is mandated.” (Id. at p. 104.) E. 1990 Amendments Prohibit Waiver for Bias or Prejudice Whereas the former version of section 170, as interpreted by Caminetti, only allowed for waiver of certain grounds for disqualification, the revised statutes did not provide any limitation at first. In 1990, the Legislature amended section 170.3, subdivision (b) in Senate Bill No. 2316 (1989-1990 Reg. Sess.) (Senate Bill No. 2316) to add subdivision (b)(2). It states, “[t]here shall be no waiver of disqualification where the basis therefor is either of the following: [¶ ] (A) The judge has a personal bias or prejudice concerning a party. [¶ ] (B) The judge served as an attorney in the matter in controversy.” (People v. Barrera (1999) 70 Cal.App.4th 541, 547 (Barrera); Stats. 1990, ch. 910, § 1, pp. 3857-3859.) “ ‘ “The new language helps assure that even the shadow of bias is kept out of our courts, and provides useful conformity between the judiciary’s self-imposed ethical guidelines and the law.” ’ ” (Barrera, supra, 70 Cal.App.4th at p. 550.) III. Analysis A. Timeliness and Waiver of Statement of Disqualification Petitioner contends its statement of disqualification was presented at the earliest practicable opportunity as it was not evident the judge was unable to be impartial until the cumulative impact of his comments were taken into account. Additionally, petitioner contends any delay in filing the statement was attributable to review of the statements of

disqualification from Doma Title. During much of the time in consideration this court had stayed the superior court proceeding to review Doma Title’s peremptory challenge under section 170.6. While Doma Title’s statement for disqualification was under review, the trial judge likely had no authority to act. (See § 170.4, subd. (d) [“[A] disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined.”].) The trial judge disagreed and struck the statement of disqualification as untimely finding petitioner had impliedly waived the right to seek disqualification. As explained below, based on the plain meaning of section 170.3, subdivision (b)(2), the developed body of caselaw discussing waiver as applied to statements of disqualification, and the fundamental guiding principles put in place to protect the parties’ and the public’s confidence in the judiciary, disqualification based on the judge having personal bias or prejudice shall not be subject to waiver based on failing to present a statement at the earliest practicable opportunity under subdivision (c)(1). Our primary task “in interpreting a statute is to determine the Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent.” (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) In doing so, we give the words “their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute’s purpose.” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529.) “ ‘If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs.’ ” (Curle, supra, 24 Cal.4th at p. 1063.) Likewise, if the Legislature has provided an express definition of a term, that definition ordinarily is binding on the courts. (Ibid.) As part of this process, “ ‘ “[every] statute should be construed with reference to the whole system

of law of which it is a part so that all may be harmonized and have effect.” ’ ” (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 610.) In addition to applying the settled principles of statutory construction, we must consider the Supreme Court’s admonitions that the disqualification statutes “should not receive a technical or strict construction, but rather one that is broad and liberal” (North Bloomfield Gravel Mining Co. v. Keyser (1881) 58 Cal. 315, 322) and are “to be liberally construed, with a view to effect its objects and to promote justice.” (Civ. Code, § 4.) B. Prohibition on Waiver of Claims of Doubts as to Impartiality In its statement of disqualification, Lennar Title relies on the grounds set forth in section 170.1, subdivision (a)(6)(A)(iii), “A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial” and subdivision (a)(6)(B), “Bias or prejudice toward a lawyer in the proceeding.” Noticeably, section 170.3, subdivision (b)(2)(A) uses different language. It states there shall be no waiver of disqualification if “[t]he judge has a personal bias or prejudice concerning a party.” (Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 885.) Here, there is no concern whether section 170.3, subdivision (b)(2)(A) applies because petitioner expressly makes such an assertion. It claims “[t]he Judge has displayed bias and prejudice against Lennar Title.” Nonetheless, the arguments set forth in petitioner’s statement of disqualification focus on the operative legal standard whether there are doubts the judge would be able to be impartial as “[a] party moving for disqualification need not show actual bias because the Legislature sought to guarantee not only fairness to individual litigants, but also ‘ “to ensure public confidence in the judiciary” ’ [citation], which ‘ “ ‘may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted.’ ” ’ ” (Wechsler, supra, 224 Cal.App.4th at p. 390.) We therefore address whether the prohibition on waivers of disqualification as to claims the judge has a

personal bias or prejudice concerning a party under section 170.3, subdivision (b)(2)(A) applies to claims for disqualification under section 170.1, subdivision (a)(6)(A)(iii). Six years prior to the amendment to add the language of section 170.3, subdivision (b)(2)(A), the Legislature amended the ground for disqualification from “When it is made to appear probable that, by reason of bias or prejudice of the justice or judge a fair and impartial trial cannot be had before that judge or justice” as stated in former section 170, subdivision 5 (Stats. 1984 ch. 193, § 9) to “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial” as currently set forth in section 170.1, subdivision (a)(6)(A)(iii). According to the legislative history, the language of section 170.3, subdivision (b)(2) was made to conform with the language of the Code of Judicial Ethics, Canon 3(C)(1)(a), as amended on September 18, 1989. (Sen. Bill Lockyer, Chairman, Sen. Com. on Judiciary, letter to Gov. George Deukmejian, Aug. 22, 1990 [“When the state’s judiciary has agreed to impose more severe constraints on the entrance of even the appearance of bias into the courts, we should waste no time in putting the weight of statutory law behind the new restrictions. Conformity between the Code of Judicial Conduct and the Code of Civil Procedure is also helpful to judges and attorneys as they deal with these issues on a day to day basis.”]; Cal. Code Jud. Ethics, canon 3(C)(1)(a).) At the time the Legislature passed Senate Bill No. 2316, several things were known. It was clear the newly added waiver language of section 170.3, subdivision (b)(2) differed from the statutory language for disqualification which no longer required a showing of actual bias. Based on that knowledge, it is assumed the Legislature knew or should have known parties were likely to phrase claims of disqualification using the language of section 170.1, subdivision (a)(6)(A)(iii) stating one might doubt the judge’s ability to be impartial, rather than affirmatively state the judge is biased or prejudiced.

Despite these differences, we hold the Legislature intended the prohibition of waiver under section 170.3, subdivision (b)(2) to apply to attempts to disqualify a judge on the grounds that “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial” under section 170.1, subdivision (a)(6)(A)(iii). At the time of enactment of Senate Bill No. 2316, the commentary to the California Code of Judicial Ethics described the two standards as “comparable.” (Cal Rules of Court, appen., div II, Canon 3.) Likewise, the definitions contained in the California Code of Judicial Ethics and Model Code of Judicial Conduct explain “impartial” as the inverse of “bias or prejudice.” (Cal. Code Jud. Ethics, Terminology; ABA Model Code Jud. Conduct (2007), Terminology, p. 4.) “ ‘Impartial,’ mean[s] the absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 389 (Haworth).) In order to construe the statute broadly and liberally, commonsense dictates the prohibition on waiver under section 170.3, subdivision (b)(2) must apply to claims of disqualification under section 170.1, subdivision (a)(6)(A)(iii). A narrow reading of the statutory language of section 170.3, subdivision (b)(2) requiring parties to assert claims of actual bias or prejudice would render it inapplicable to many instances in which the Legislature intended it to apply. “[T]he Legislature does not engage in idle acts, and no part of its enactments should be rendered surplusage if a construction is available that avoids doing so.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087.) Further, such an interpretation aligns with the intent of the Legislature as section 170.3, subdivision (b)(2) was enacted to “assure that even the shadow of bias is kept out of our courts.” (Barrera, supra, 70 Cal.App.4th at p. 550.) Accordingly, the prohibition on waiver under section 170.3, subdivision (b)(2) applies to claims of doubts to the ability of the judge to remain impartial under section 170.1, subdivision (a)(6)(A)(iii).

“ ‘[T]he Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes “ ‘in the light of such decisions as have a direct bearing upon them.’ ” ’ ” (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 146 [citing People v. Overstreet (1986) 42 Cal.3d 891, 897].) At the time the Legislature amended section 170.3 in 1990 to prevent waiver of disqualification based on personal bias or prejudice, there was a well-established body of law based on Supreme Court precedent holding the untimely presentation of a statement of disqualification results in waiver. The Legislature’s determination to place no limiting language on the prohibition of waiver in section 170.3, subdivision (b)(2) despite well-established caselaw developing the doctrine of implied waiver, shall be interpreted to indicate its intent to prohibit all forms of waiver, including implied waiver due to untimeliness. This interpretation aligns with the purpose of the amendments to assure that even the shadow of bias is kept out of California courts and conforms with prior statutory language and judicial construction. To protect public confidence in the judiciary, certain grounds of disqualification have historically been too important to waive. (Muller v. Muller, supra, 235 Cal.App.2d at p. 345, fn. 4 [“It should be here noted that in Caminetti it was held that the disqualification provided for in subdivision 1 of section 170 relating to a personal interest of a judge in litigation cannot be waived since it was intended to protect the state and judiciary as well as the parties to the suit.”].) While Caminetti focused on subdivision 1 of former section 170, subdivision 5 of former section 170 regarding disqualification for bias and prejudice also had a no waiver provision. There was a six-year period where no statutory language existed to prevent waiver of claims of disqualification due to bias or prejudice. But for over the last three decades, the express language of section 170, subdivision (b)(2) and the relevant legislative history thereto makes clear a claim for bias or prejudice is now “unwaivable.” (Hayward v. Superior

Court (2016) 2 Cal.App.5th 10, 50.) There is nothing controversial about efforts to eliminate bias and prejudice from the courts, and these goals have been expressed by the Supreme Court for well over a century. (Lindsay-Strathmore Irrigation Dist., supra, 182 Cal. at p. 334 [“It is the design of the law to maintain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the community.”].) Finally, it would be incongruent to prohibit express waiver of certain grounds of disqualification but allow for implied waiver of the same grounds should a party inadvertently wait too long to file a statement of disqualification. Having interpreted section 170.3, subdivision (b)(2) to apply in cases of both express and implied waiver, we hold as a matter of law the trial judge lacked authority to strike the statement of disqualification based on personal bias or prejudice as untimely. Although judges are unable to strike statements of disqualification for personal bias or prejudice as untimely, it is unlikely to cause issues for which the implied waiver doctrine was created in the first place. The primary concern was parties would take advantage of the process by presenting claims of disqualification after obtaining an unfavorable result on a motion or at trial to attempt to vacate the unfavorable ruling after the fact. (Caminetti, supra, 22 Cal.2d at p. 392; Rohr v. Johnson (1944) 65 Cal.App.2d 208, 212 [“A party should not be allowed to gamble on a favorable decision and then raise such an objection in the event he is disappointed in the result.”].) If a party is truly concerned the trial judge lost his or her objectivity, there would be no incentive to wait to raise the issue of disqualification until after obtaining a ruling, as the party would be under no illusion the judge would provide a favorable ruling. Second, the provisions of section 170.4, subdivision (c) provides further safeguards. It allows a trial or hearing to continue regardless if a statement of disqualification has been filed less than 10 days before the commencement of said hearing or trial. (§ 170.4, subd. (c)(1)-(2).) Even though not subject to waiver for untimeliness, statements of disqualification for personal

bias or prejudice filed on the eve of trial or hearing would not prevent the trial from proceeding. Third, the trial judge still has authority to strike statements as insufficient (as explained ante) or as successive statements failing to raise new facts. (§ 170.4, subds. (b), (c)(3).) Senate Bill No. 2316 was enacted to be operative in 1990, but no opinion has addressed its applicability on implied waiver due to untimeliness. At least one opinion appears to have been issued after enactment but addressed events occurring before it was in effect. (See In re Steven O., supra, 229 Cal.App.3d at p. 54; Barrera, supra, 70 Cal.App.4th at p. 549, fn. 3.) Other opinions did not address waiver for various reasons, including finding the statement of disqualification was timely filed. (See People v. Scott (1997) 15 Cal.4th 1188, 1206 [failure to file statement of disqualification]; Urias v. Harris Farms (1991) 234 Cal.App.3d 415, 424 [finding statement timely]; Sincavage v. Superior Court (1996) 42 Cal.App.4th 224, 231-232 [finding statement timely]; Magana, supra, 22 Cal.App.5th at p. 856 [while stating statement was untimely, it appears the court relied on other grounds including insufficiency and being a second petition without alleging facts suggesting new grounds for disqualification]; Jolie, supra, 66 Cal.App.5th at pp. 1042-1043 [finding statement timely].) Only one opinion appears to have found a statement of disqualification alleging a nonwaivable ground under section 170.3, subdivision (b) as impliedly waived. (See Tri Counties Bank, supra, 167 Cal.App.4th at p. 1337.) D. Additional Arguments Alleging Implied Waiver Class representatives argue Lennar Title’s actions to continue to litigate in the superior court should be considered additional grounds for implied waiver. Specifically, class representatives point to Lennar Title’s objecting to the language of the proposed judgment and perfecting an appeal from the judgment. Class representatives rightfully acknowledge filing a notice of appeal was necessary for Lennar Title to “preserve [its]

rights in case this Petition is denied,” but argue any action beyond seeking to stay the underlying proceeding and appeal show Lennar Title intended to waive its right to seek disqualification under section 170.3. This argument is simply dispatched based on the interpretation of the plain language of section 170.3 already performed in this opinion. Section 170.3, subdivision (b)(2) states there shall be no waiver of disqualification if the judge has a personal bias or prejudice concerning a party. Waiver does not result from failing to file the statement of disqualification at the earliest practicable opportunity, nor does waiver result from the continued prosecution of the action pending adjudication of the disqualification proceeding. Section 170.3, subdivision (d) requires a party asserting disqualification to seek timely writ review, which Lennar Title has done. (Barrera, supra, 70 Cal.App.4th at p. 551-552 [“[T]he Legislature did not, in so amending section 170.3, subdivision (b), also amend section 170.3, subdivision (d), to provide for different means of review of the question of disqualification depending on which basis for disqualification is involved.… Thus … we conclude that a statutory claim -- regardless of its nature -- is governed by subdivision (d) and requires timely writ review.”].) As class representatives acknowledged, the failure of Lennar Title to continue to take necessary actions to protect its interests in the underlying proceeding, such as preserving its rights to appeal, could result in significant and irreversible consequences. Class representatives also contend Lennar Title’s dual prosecution of this writ and the underlying proceeding is prejudicial and a waste of judicial resources. Yet, it was not Lennar Title’s decision to make. Section 170.4, subdivision (c) states, “If a statement of disqualification is filed after a trial or hearing has commenced … the judge whose impartiality has been questioned may order the trial or hearing to continue, notwithstanding the filing of the statement of disqualification.” (Emphasis added.) Under section 170.4, subdivision (c), the trial judge had the right to continue adjudicating

the proceeding through trial, which might include the authority to enter judgment. But continuing to issue orders or rulings creates substantial risks those rulings will be vacated should disqualification result. Section 170.4, subdivision (c)(1) continues, “if it is determined that the judge is disqualified, all orders and rulings of the judge found to be disqualified made after the filing of the statement shall be vacated.” “Because of this provision, judges generally avoid making any orders or rulings after a challenge for cause that could reasonably be considered meritorious is filed; they make orders or rulings only if the pending challenge is clearly specious.” (Cal. Judges Benchbook: Civil Proceedings—Before Trial (CJER 2022) § 7.18, p. 559, emphasis in original.) The decision to cause concurrent litigation was the trial judge’s, not Lennar Title’s. Once judgment was entered, Lennar Title cannot be faulted or found to have impliedly waived its right to seek disqualification for taking action to preserve its right to appeal. Separately, class representatives argue Lennar Title has not shown prejudice as it will have the opportunity to address any unfavorable rulings on post-judgment motions on appeal. Although true the underlying rulings are subject to appellate review, any challenge on appeal could not address statutory claims of disqualification under section 170 et seq. Rather, they would be limited to non-statutory claims of deprivation of the right to constitutional due process to a fair trial in a fair tribunal. (People v. Chatman (2006) 38 Cal.4th 344, 362; In re Murchison (1955) 349 U.S. 133, 136.) The constitutional standard is significantly more stringent. (Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, 877, 886-887 [“These are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable’ ” and applies to cases involving “extreme facts.”].) Despite class representatives’ assertions otherwise, asking Lennar Title to forego its statutory claims of disqualification which were enacted to jealously guard the rights of

parties and guarantee public confidence in the judiciary (Thomas, supra, 8 Cal.3d at p. 520) would indeed be prejudicial. Class representatives’ contentions Lennar Title’s continued acts to litigate the underlying proceeding during the pendency of this writ should result in implied waiver are rejected. E. Successive Statement Alleging No New Facts The trial judge also based his order striking the statement of disqualification as a second or successive petition under section 170.4, subdivision (c)(3). Subdivision (c)(3) states, “A party may file no more than one statement of disqualification against a judge unless facts suggesting new grounds for disqualification are first learned of or arise after the first statement of disqualification was filed. Repetitive statements of disqualification not alleging facts suggesting new grounds for disqualification shall be stricken by the judge against whom they are filed.” (§ 170.4, subd. (c)(3).) To reach his result, the trial judge considered Lennar Title and Doma Title to be the same party using the definition of party under section 170.1, subdivision (a)(8)(B)(ii). Section 170.1, subdivision (a)(8) governs issues of disqualification when the judge participates in activities such as a dispute resolution neutral. Under section 170.1, subdivision (a)(8)(A)(i), a judge shall be disqualified if “[t]he arrangement is, or the prior employment or discussion was, with a party to the proceeding.” (§ 170.1, subd. (a)(8)(A)(i), emphasis added.) Further, section 170.1, subdivision (a)(8)(B) defines certain terms “[f]or the purposes of this paragraph” including the term “party.” (Id., subd. (a)(8)(B)(ii), emphasis added.) “ ‘Party’ includes the parent, subsidiary, or other legal affiliate of any entity that is a party and is involved in the transaction, contract, or facts that gave rise to the issues subject to the proceeding.” (Ibid.) Using the above definition, the trial judge found the actions of Doma Title in filing the earlier statement of disqualification for cause should be imputed on Lennar Title as if

they were the same party. Applying the definition here was inappropriate for several reasons. First, the plain language of section 170.1, subdivision (a)(8)(B) limits the application to that paragraph, namely section 170.1, subdivision (a)(8). Further, the trial judge found Lennar Title and Doma Title were inextricably intertwined and therefore the same party for purposes of statements of disqualification. Even if the definition of party for disqualification of dispute resolution neutrals applied in this scenario to the ability to strike repetitive statements of disqualification under section 170.4, subdivision (c)(3), the definition of party is not met. Party means more than two business entities that are parent, subsidiary, or other legal affiliate of another business entity. (§ 170.1, subd. (a)(8)(B)(ii).) The entity must also be “involved in the transaction, contract, or facts that gave rise to the issues subject to the proceeding.” (Ibid.) The transaction, contract, or facts relevant to this proceeding involve whether Lennar Title properly compensated class members in its employ under relevant wage and hour laws during the time period ending in 2012. As Doma Title was not incorporated until January 23, 2018, it neither existed nor was involved in the employment of class members during the relevant period. “Had the Legislature intended to deem all affiliates of a named party under the judge disqualification and arbitral disclosure standards as parties, it could have achieved this objective by simply defining party to include, without qualification, the parent, subsidiary, or other legal affiliate of any entity that is a party. For the qualifying clause to have any meaning, it must be read to modify ‘parent, subsidiary, or other legal affiliate.’ It is this legal affiliate that must be ‘involved in the transaction, contract, or facts that gave rise to the issues subject to the proceeding.’ ” (Hayden v. Robertson Stephens, Inc. (2007) 150 Cal.App.4th 360, 367, 368 [“the statute does not deem a corporation a party to the proceeding based on potential successor liability”].) Lennar Title and Doma Title are not the same party for purposes of section 170.4, subdivision (c)(3). Having never filed a prior statement of disqualification for

characterized as primarily factual. The question here is how an objective, reasonable person would view [the judge’s] ability to be impartial.” (Haworth, supra, 50 Cal.4th at pp. 385-386.) “ ‘The standard for disqualification provided for in subdivision (a)(6)(C)[(iii)] of section 170.1 is fundamentally an objective one.’ ” (Jolie, supra, 66 Cal.App.5th at p. 1039.) “ ‘It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man would entertain doubts concerning the judge’s impartiality, disqualification is mandated. “To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person.” ’ ” (Id. at pp. 1039-1040 (citing United Farm Workers, supra, 170 Cal.App.3d at p. 104.) “[T]he reasonable person must be viewed from the perspective of the reasonable layperson, ‘someone outside the judicial system,’ because ‘judicial insiders, “accustomed to the process of dispassionate decision making and keenly aware of their Constitutional and ethical obligations to decide matters solely on the merits, may regard asserted conflicts to be more innocuous than an outsider would.” ’ ” (Wechsler, supra, 224 Cal.App.4th at p. 391; citing In re Kensington International Limited (3d Cir. 2004) 368 F.3d 289, 303.) “Where, as here, the underlying events are not in dispute, disqualification on this ground becomes a question of law which this court may determine.” (Sincavage v. Superior Court, supra, 42 Cal.App.4th at p. 230.) The question at issue is not whether a person might reasonably entertain a doubt whether the trial judge would be able to be impartial. It is whether the trial judge had authority to strike the statement as insufficient. Under section 170.4, subdivision (b), a trial judge may strike a statement of disqualification “if on its face it discloses no legal grounds for disqualification.” (§ 170.4, subd. (b).) However, by its express terms, the

authority of the trial judge to strike under section 170.4, subdivision (b) is limited by the terms of section 170.3, subdivision (c)(5). That subdivision states, “A judge who refuses to recuse himself or herself shall not pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party.” (§ 170.5, subd. (c)(5), emphasis added.) In striking the statement of disqualification, the trial judge argued the statements were not disqualifying as they were statements of frustration (see People v. Brown (1993) 6 Cal.4th 322, 337), erroneous legal rulings (Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, 423), or the expression of a view on a legal or factual issue presented in the proceeding (§ 170.2, subd. (b)). By engaging in the ultimate determination whether the statements were legal findings or statements of frustration rather than statements indicating an appearance of impartiality, the trial judge was passing on the sufficiency in law or fact of the allegations presented in the statement of disqualification. In enacting section 170.4, subdivision (b), the Legislature provided trial judges limited authority to strike statements of disqualification that were facially insufficient or frivolous. By strictly limiting the ability of trial judges to strike only those statements which on their face disclose no legal grounds for disqualification, the Legislature was attempting to balance the need for prompt adjudication of frivolous statements of disqualification while limiting the “substantial potential for impropriety” created by allowing the challenged judge to strike statements to avoid review of the statement of disqualification by another judge. (Penthouse, supra, 137 Cal.App.3d at p. 981.) Review of Lennar Title’s statement of disqualification leaves little doubt it was facially sufficient. The verified statement is 19 pages long and is accompanied by the declaration of Lennar Title’s counsel and 15 exhibits, totaling over 300 pages. The statement describes the trial judge’s comments made during argument in detail, as well as provides pinpoint citations to the reporter’s transcripts. Likewise, after setting forth the

(Merriam-Webster Dict. Online (2023) <https://www.merriam- webster.com/dictionary/shell%game> [as of May 19, 2023].). “ ‘Bias is defined as a mental predilection or prejudice; a leaning of the mind; “a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction.” [Citation.] Bias or prejudice consists of a “mental attitude or disposition of the judge towards a party to the litigation.” ’ ” (In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 789.) The repeated use of the above terms could create the perception from a reasonable observer that the trial judge believed Lennar Title was engaged in deceptive and wrongful actions to evade the upcoming judgment. Class representatives argue the statements are not the basis of disqualification as “[i]t shall not be grounds for disqualification that the judge … [h]as in any capacity expressed a view on a legal or factual issue presented in the proceeding.” (§ 170.2, subd. (b).) It is not evident the comments relate to any legal or factual issues presented in the proceeding. The comments were made while ruling on a motion to quash due to lack of service of process and were not relevant to the determination of the motion. While it is possible to argue the comments were merely expressing a view in a legal proceeding, it is similarly possible to construe the comments as violative of section 170.1, subdivision (a)(6)(A)(iii) and Canon 3 of the Code of Judicial Ethics. (Rules of Ct., Canon 3(B)(5) [“A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (a) bias, prejudice, or harassment.”].) Hearing the comments, a reasonable observer may be concerned the trial judge was predisposed to decide future rulings unfavorably against Lennar Title, including pending post-trial motions. “Where a judge gratuitously offers an opinion on a matter not yet pending before him and thereby shows a bias or prejudice against a party, a writ of mandate will issue precluding the opining judge from hearing that matter.” (Pacific etc.

Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 84.) Based on the totality of the statements above, Lennar Title presented a colorable case and a fully informed, reasonable member of the public could entertain doubts the trial judge retained an appearance of being impartial. “ ‘The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand.’ ” (Id. at pp. 87-88.) Based on the facts and arguments contained in Lennar Title’s statement of disqualification, it is not tenable to hold that on its face it discloses no legal grounds for disqualification. Rather, the statement was sufficient and the issue of disqualification should have been reviewed on the merits by another judge. (§ 170.3, subd. (c)(5).) G. Failure to Answer the Statement of Disqualification Having found the order striking the statement of disqualification was improper and must be vacated, we turn to what should occur on remand. Upon reinstatement of the statement of disqualification, the trial judge shall be provided the remaining three days of the 10-day period to respond before being deemed to have consented to disqualification. (§ 170.3, subd. (c)(4).) Striking a statement and filing an answer are not mutually exclusive; there is no “logical reason to prevent a judge from striking such a statement subsequent to filing an answer so long as it is done within the 10 days prescribed by the statute.” (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 973.) The trial judge did not answer the statement within 10 days, but “upon striking the declaration, it no longer exist[ed] to be consented to or answered.” (Ibid.) As the statement of disqualification effectively ceased to exist upon being stricken, it follows the 10-day deadline to file a consent or answer no longer continued to run.10 Once the order striking the statement is vacated and

motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.” (§ 170.1, subd. (c).) “The power of the appellate court to disqualify a judge under … section 170.1, subdivision (c), should be exercised sparingly, and only if the interests of justice require it.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303.) “The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial, or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme.” (Ibid.) We acknowledge substantial issues exist whether a reasonable person might doubt the trial judge would be able to remain impartial, and allowing the trial judge the option to answer will result in further delay in what is already an exceedingly old case. However, appellate courts are to exercise restraint before using the authority under section 170.1, subdivision (c) to disqualify trial judges. Without possessing an answer from the trial judge, we lack the record normally presented to a judge deciding questions of disqualification. Discretion dictates we defer to the statutory process and procedure for determining questions of disqualification set forth in section 170.3, subdivision (c)(5)- (6). We are cognizant that “delay thwarts the legislative intent underlying section 170.3(d) -- to promote judicial economy and to provide ‘a speedy and fundamentally fair avenue to litigants who make a for-cause challenge.’ ” (Curle, supra, 24 Cal.4th at p. 1071.) Having noted the delays and irregularities in the disqualification proceedings leading to this writ proceeding, any future disqualification proceedings should be conducted with efficiency in mind. The language of section 170.3, subdivision (c), dictates as much, and requires the selection of the judge to review the question of

North American Title Co. v. Super. Ct.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SNAUFFER, J.