Filed 6/16/20 Garcia v. Lacey CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GUILLERMO GARCIA,

Plaintiff and Appellant,

v.

B.A. LACEY, et al.,

Defendants and Respondents.

F079041

(Super. Ct. No. CV57059)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge.

Guillermo Garcia, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Misha D. Igra, Neah Huynh, and Iram Hasan, Deputy Attorneys General, for Defendants and Respondents.

-ooOoo-

Plaintiff Guillermo Garcia, a self-represented California inmate, filed this lawsuit against a prison warden and correctional officers in October 2011. In this appeal, Garcia challenges a trial court order denying his motion to set aside various orders entered by a trial judge before the judge was disqualified in August 2016. The motion was brought under Code of Civil Procedure section 473, subdivision (d) and asserted the orders should be set aside because they were void. Based on the facts of this case, we conclude the orders before the judge’s disqualification were, at most, voidable. Because the orders were not void, relief pursuant to section 473, subdivision (d) or the court’s inherent equitable power was properly denied.

We therefore affirm the order denying Garcia’s motion.

FACTS AND PROCEEDINGS

On October 31, 2011, Garcia filed a civil complaint in Tuolumne County Superior Court against a prison warden and correctional officers (defendants). The lawsuit was assigned case No. CV57059; a postjudgment order filed in that lawsuit is the subject of this appeal. When the lawsuit was filed, Garcia had another lawsuit pending against prison officials, Tuolumne County Superior Court case No. CV56477 (first lawsuit).

In March 2012, in the first lawsuit, Judge Segerstrom disclosed at a hearing attended by Garcia via CourtCall that, before to his appointment to the bench, he had served as the Tuolumne County District Attorney and, in that capacity, had met Warden F. X. Chavez, a defendant in that lawsuit. Warden Chavez also is a defendant in the present lawsuit. Judge Segerstrom told the parties he did not believe that his having met Warden Chavez would prevent him from being impartial. The minute order from the hearing stated that neither Garcia nor defense counsel “have any objection to the Court hearing this matter.”

In June 2012, defendants filed a motion under California’s vexatious litigant law (§§ 391-391.8.) Defendant’s motion was granted by Judge Segerstrom based on his findings that (1) Garcia had brought five or more unsuccessful litigations in propria persona in the preceding seven years and (2) Garcia lacked a reasonable probability of success on the merits of this lawsuit. Garcia appealed, contending his attempts to file civil complaints in federal court, which resulted in five denials of his application to proceed in forma pauperis, should not be counted as unsuccessful litigations.

Garcia’s appeal was assigned case No. F066681. We concluded an unfiled lawsuit did not constitute a “litigation” under the relevant statutory provision of the vexatious litigant law. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 410 (Garcia I).) Consequently, we reversed the trial court’s order declaring Garcia a vexatious litigant and reversed the related judgment of dismissal. (Id. at pp. 405-406, 413.)

The proceedings after remittitur included a series of amendments and demurrers. Also, in April 2015, Garcia filed a motion for sanctions contending defendants’ motion to declare him a vexatious litigant was frivolous and a tactic solely intended to cause unnecessary delay of this litigation. !(RJN 10, 11 [1st ¶])! In December 2015, Garcia filed a motion to consolidate this lawsuit with his first lawsuit, case No. CV56477. !(RJN 88, 96:18-21)! In January 2016, Judge Segerstrom held a hearing on the motion for sanctions and the motion to consolidate. !(RJN 94, 95:1-3; 99:6-7)! On March 30, 2016, the court filed an order denying the motion to consolidate, stating “that due to the vast disparity in the procedural posture of these cases, it is not in the interest of justice to consolidate them.” !(RJN 94:1-2, 95:7-8)! On the same day, the court filed a separate order confirming its denial of the motion for sanctions stated at the January 2016 hearing. !(RJN 99:7-8, 99:24-25)!

In June 2016, Garcia filed a third amended complaint. Defendants filed another demurrer. In early August 2016, Garcia filed an opposition to the demurrer and, a few days later, defendants filed a reply.

Disqualification

On August 23, 2016, Garcia signed a motion for peremptory challenge of Judge Segerstrom pursuant to section 170.6. The motion was filed on August 31, 2016. The same day, Judge Segerstrom signed and filed an ex parte order stating (1) “a Peremptory Challenge (170.6) was filed [by] the Plaintiff in this case,” (2) the demurrer and case management hearings set before him for September 8, 2016, were “now set before Judge Kevin M. Seibert” in department 4; and (3) the hearing would be rescheduled to September 23, 2016 before Judge Seibert. Judge Segerstrom treated Garcia’s motion as a timely peremptory challenge, rather than as a challenge for cause based on a lack of impartiality (§170.1, subd. (a)(6)(A)). As a result, he granted it without further inquiry. Accordingly, the disqualification order did not discuss bias, impartiality, or whether good cause existed for vacating his earlier rulings or orders, which included the March 30, 2016 orders denying Garcia’s motion to consolidate and his motion for sanctions. !(CT 94-95, 98-99)!

Dismissal of the Case

On September 23, 2016, the hearing before Judge Seibert on the demurrer to the third amended complaint was held as scheduled, with Garcia and defense counsel appearing telephonically. Judge Seibert determined (1) Garcia had failed to comply with the claim presentation requirement in the Government Claims Act, (2) the allegations of the complaint were uncertain, (3) the allegations failed to state any cognizable causes of action, and (4) further amendment would be futile as Garcia had amended his pleading three times and had disavowed any desire to amend further.

On November 8, 2016, the court signed and filed a written order sustaining the demurrer without leave to amend and dismissing the case. Later in November, defense counsel filed and served a notice of entry of the order dismissing the case. A few days later, Garcia filed a notice of appeal on Judicial Council form APP-002 and marked the box for an appeal from a judgment of dismissal after an order sustaining a demurrer. This court assigned the appeal case No. F074756.

Motion to Set Aside

On October 15, 2018, more than two years and one month after Judge Segerstrom recused himself from the matter, Garcia filed a motion for an order setting aside the rulings and orders issued by Judge Segerstrom before his disqualification. Garcia asserted the orders and rulings were void and should be vacated pursuant to section 473, subdivision (d).

On January 4, 2019, the Judge Seibert issued an order denying Garcia’s motion to set aside on the ground it was untimely. In March 2019, Garcia filed a notice of appeal from the order denying his motion to set aside. That order is the subject of this appeal.

DISCUSSION

I. STANDARD OF REVIEW

Garcia’s motion sought to set aside Judge Segerstrom’s orders pursuant to section 473, subdivision (d), which provides that a trial court “may, on motion of either party …, set aside any void judgment or order.” In considering such a motion, the trial court first determines whether the judgment or order is void and, if so, whether it will exercise its discretion to grant or deny the motion. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.) The trial court’s first determination—whether the judgment or order is void—is subject to de novo review on appeal. (Ibid.) The trial court’s second determination—whether to set aside a void judgment or order under the facts and circumstances before it—is subject to review under the abuse of discretion standard. (Ibid.) In applying the abuse of discretion standard, we consider whether the decision of the trial court exceeded the bounds of reason in light of the circumstances presented. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.)

II. VOID VERSUS VOIDABLE ORDERS

A. Parties’ Contentions

On appeal, Garcia contends the acts of a judge subject to disqualification are void and, therefore, all the rulings and orders issued by Judge Segerstrom are void and must be vacated. Defendants contend Garcia’s request to vacate the rulings and orders suffers from many defects. They argue Garcia cannot succeed because (1) he failed to comply with the statutory requirements to disqualify a judge; (2) his motion to set aside was filed more than six months after Judge Segerstrom’s orders; (3) the facts do not clearly show that grounds for disqualification existed; (4) the orders are not void on their face; and (5) the facts presented do not present an extreme case of judicial bias.

B. Orders Issued Before Garcia’s Peremptory Challenge

1. Statutory Text

Our evaluation of whether the challenged orders were void begins with the statutory text. As background for disqualification’s effect on prior orders, we note that section 170.4, subdivision (d) addresses the effect on subsequent acts of the judge: “Except as provided in this section, 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.”

In comparison, section 170.3, subdivision (b)(4) addresses the effect of disqualification on prior orders. This provision does not establish an all-encompassing rule but is limited to a specific set of circumstances:

“If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.” (Italics added.)

This provision does not specifically state whether the disqualified judge’s prior interlocutory orders are void or merely voidable. It could be interpreted to mean the prior interlocutory orders are never void (i.e., a nullity) but are only voidable upon a showing of “good cause.” This interpretation is supported by inferring the phrase “shall not be set aside” was used to signify that prior orders remain effective and only become ineffective after a showing of good cause and an order setting them aside.

Alternatively, the provision could be interpreted in a manner that does not impliedly resolve the void-voidable question. Under this interpretation, the statute simply provides that a formal order setting aside prior rulings is entered only if “good cause” has been demonstrated. One way—but not the only way—to establish “good cause” would be to show that the rulings are void. (See People v. Hajjaj (2010) 50 Cal.4th 1184, 1197 [good cause requirement involves applying principles of common sense to the totality of circumstances]; Bartlett Hayward Co. v. Industrial Acc. Commission (1928) 203 Cal. 522, 532 [“What constitutes ‘good cause’ depends largely upon the circumstances of each case”]; People v. McGirr (1988) 198 Cal.App.3d 629, 635 [good cause is a flexible phrase].)

We assume, without deciding, that the second interpretation accurately states the Legislature’s intention. In other words, we assume the Legislature did not intend to establish a blanket rule that prior interlocutory orders of a disqualified judge are never void, but only voidable.

2. General Principles

The foregoing assumption about the meaning of section 170.3, subdivision (b)(4) leads us to examine other sources of law to determine whether the interlocutory orders issued prior to the judge’s disqualification were void. “The rule is commonly declared in California decisions that a judgment or order rendered by a disqualified judge is void. [Citations.] The theory upon which this rule rests has not been clearly stated in these decisions, and the proposition itself is not uniformly accepted in its broadest form by all of them.” (2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 94, p. 138 [theory that judgment is void].)

“Little is accomplished by calling the judgment of a disqualified judge ‘void.’ (See [2 Witkin, Cal. Procedure (5th ed. 2008) Courts,] § 94[, p. 138].) The real question—the effect of the judgment—is evaded by the loose application of this word of many meanings. The problem is one of jurisdiction and, despite the fact that a disqualified judge totally lacks power to hear and determine the cause, the defect should not be considered a lack of jurisdiction of the subject matter .…” (2 Witkin, Cal. Procedure, supra, Courts, § 95, p. 139.) Witkin’s rationale asserts the court is not disqualified, only the particular judge, and the defect can be waived, while subject matter jurisdiction cannot be conferred by agreement. (Id. at pp. 139-140.) The Third District used the waiver rationale in referring to “the subsequent orders or judgment of a disqualified judge” and stating: “Consequently, the actions of a disqualified judge are not void in any fundamental sense but at most voidable if properly raised by an interested party.” (In re Christian J. (1984) 155 Cal.App.3d 276, 280 (Christian J.).)

In Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415 (Urias), this court considered whether an order issued before a judge was disqualified should be vacated and, more specifically, whether the order was void or voidable. In Urias, the plaintiff sued his employer for wrongful termination. (Id. at p. 419.) The employer moved for summary judgment. The trial court granted the motion. After judgment was entered, the plaintiff filed (1) a statement seeking to recuse the judge and (2) a motion to set aside his grant of summary judgment. The plaintiff claimed the judge’s former law firm had represented the employer in litigation for the last 10 years. The initial request was denied without prejudice because the trial judge had not been served. The plaintiff filed and served a second statement of disqualification. When the challenged judge did not respond, the plaintiff requested that another judge hear the matter. Ultimately, another superior court judge granted the request for disqualification. (Id. at p. 420.) Thereafter, the plaintiff appealed the summary judgment and the defendant filed a petition for writ of mandate seeking to vacate the disqualification order. (Ibid.) This court denied the defendant’s writ petition and allowed the disqualification order to stand. (Id. at p. 419.) We also reversed the judgment, concluding it was voidable because it had been rendered by a disqualified judge and the plaintiff had raised the disqualification issue in a timely manner. (Id. at pp. 426-427.)

In Urias, because the judge in question had granted the motion for summary judgment before he was deemed disqualified, we referred to “a number of California cases [that] addressed the validity of a judgment entered by a judge who is later found to be disqualified.” (Urias, supra, 234 Cal.App.3d at p. 423, italics added.) We stated that, under the former disqualification statutes, “the courts have generally held that a judgment or order rendered by a disqualified judge is void whenever brought into question.” (Ibid.; see Giometti v. Etienne (1934) 219 Cal. 687, 689 [“a judgment rendered by a disqualified judge is void”].) Addressing whether this principle should be given a literal interpretation, we recognized that the underlying theory “is not clearly stated in the decisions” and the principle “itself is not uniformly accepted in its broadest form” by all courts. (Urias, supra, at p. 423.) We then stated:

“Witkin notes little is accomplished by calling the judgment of a disqualified judge ‘void’; the problem is one of jurisdiction. While the disqualified judge totally lacks power to hear and determine the cause, the court itself is not without jurisdiction. [Citation.] But the court, with subject matter jurisdiction, may properly be held to lack jurisdiction to act while the judge is disqualified. The problem is more accurately one of excess of jurisdiction.” (Urias, supra, 234 Cal.App.3d at p. 424.)

We adopted the view stated in In re Christian J. and concluded that, as a general rule, the actions of a disqualified judge are voidable, provided that the disqualification issue had been properly raised by an interested party. (Urias, supra, 234 Cal.App.3d at p. 424.) We determined the plaintiff in Urias properly raised the disqualification issue and, based on the facts presented, had done so in a timely manner. (Id. at pp. 424–425.) Consequently, we concluded the summary judgment had been rendered by a disqualified judge and “the judgment was voidable upon plaintiff’s objection.” (Id. at p. 426.) Thus, we reversed the judgment and did “not reach the merits of the summary judgment motion and ruling.” (Id. at p. 427.)

3. Applicable Principle

We recognize the First District addressed “whether the rulings made by the temporary judge prior to her disqualification [in a marital dissolution proceeding] are void or voidable and, if so, the legal consequences.” (Hayward .v Superior Court (2016) 2 Cal.App.5th 10, 16 (Hayward).) The First District concluded “the rulings and orders issued by the temporary judge are all void and must be vacated.” (Id. at p. 17.) We also recognize the Fourth District has stated such orders are void. (Christie v. City of El Centro (2006) 135 Cal.App.4th 767 (Christie).) In Christie, however, the court acknowledged that the distinction between void and voidable orders did not affect the outcome under the facts presented because, “whether void or voidable, the order must be vacated.” (Id. at p. 780.) Thus, its conclusion that such orders are void is dicta.

Our conclusion that the orders issued prior to disqualification are voidable conflicts with the holding in Hayward and statements made in Christie, but is supported by the First District’s decision in Betz v. Pankow (1993) 16 Cal.App.4th 931 (Betz). “We concur with Witkin and those cases concluding that the acts of a judge subject to disqualification for cause are voidable rather than void and, by extension, conclude that the same rule should apply to arbitrators.” (Id. at p. 940.)

Having considered the split in authority, we will stand by the jurisdictional approach adopted in Urias and Betz. Consequently, we conclude the principle that such orders are voidable is properly extended to interlocutory orders filed by Judge Segerstrom before he recused himself from the case.

As a result, those orders may not be vacated pursuant to subdivision (d) of section 473 because that provision authorizes relief only from void orders or judgments. Applying this interpretation of California law to the facts of this case, Garcia’s motion to set aside the orders of Judge Segerstrom was properly denied because those order were, at most, voidable. As a result, we do not reach the second step of an appellate review of an order denying relief under section 473, subdivision (d) and consider whether the trial court abused its discretion when it determined Garcia’s motion to set aside was untimely.

III. CHALLENGE TO SECOND JUDGE

A. Contentions of the Parties

Garcia asserts Judge Segerstrom discussed Garcia’s third amended complaint with Judge Seibert prior to Judge Seibert’s sustaining the demurrer to that pleading. Based on this assertion of fact, Garcia contends Judge Seibert’s “ruling was null and void and has to be vacated regardless of a showing of prejudice.” Alternatively, Garcia argues he has shown prejudice “because the judge’s conversation about defendants Lacey et. al., the pr[e]viously disqualified judge’s ruling on the Third Amended Complaint, gave rise to doubt as to whether Judge Seibert will be impartial in ruling on defendant’s Demurrer on September 23, 2016.”

In response, defendants contend the challenge to Judge Seibert lacks merit because Garcia did not (1) cite any evidence that Judge Seibert had a discussion with Judge Segerstrom before ruling on the demurrer to the third amended complaint or (2) explain why that discussion presented a clear case for disqualification of Judge Seibert. Defendants also contend Garcia forfeited his claim of judicial bias against Judge Seibert by not raising it in the trial court.

B. Scope of This Appeal

As a general rule, a claim of judicial bias is forfeited in criminal cases when the claim is not raised in the trial court. (People v. Buenrostro (2018) 6 Cal.5th 367, 405 [judicial bias claim not raised in trial court forfeited on appeal]; People v. Pearson (2013) 56 Cal.4th 393, 447 [same].) This general rule has been applied in an appeal involving a guardianship proceeding. (Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1054, fn. 8.) We conclude the rule also applies to civil cases, especially in light of the statutory procedures for raising such a challenge and obtaining disqualification of the judge. (See §§ 170-170.9.)

We recognize the general principle of forfeiture is subject to an exception. The Supreme Court has held that “a defendant’s failure to object to judicial bias ‘does not preclude review … when objecting would be futile.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 292.)

We conclude the exception does not apply in this case. Garcia has not shown that raising his claim of judicial bias using the statutory procedure specified in the Code of Civil Procedure would have been futile. Those procedures provide the mechanism for Garcia to establish the factual assertions that underly his claim. In comparison, as a court of review, we cannot accept the allegation that Judge Segerstrom and Judge Seibert discussed the third amended complaint and related demurrer simply because the allegation is stated in a brief. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5 [“The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court”].) In short, without evidence in the record, we cannot evaluate the merits of this claim by Garcia of judicial bias. Therefore, we conclude the claim may not be raised for the first time on appeal.

DISPOSITION

The January 4, 2019 order denying Garcia’s motion to set aside orders is affirmed.

Defendants shall recover their costs on appeal.