Bassett Unified School Dist. v. Super. Ct. ( 2023 )

Filed 3/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
BASSETT UNIFIED SCHOOL B323528
DISTRICT,
(Los Angeles County
Petitioner, Super. Ct. No. 19STCV22820)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
MICHAEL ROSS,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
Superior Court of Los Angeles Court, Stephanie M. Bowick, Judge.
Maria D. Hernandez, Judge, Orange County Superior Court.
(Judge of the Sup. Ct. for the L.A. Jud. Dist. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition denied.
Olivarez Madruga Law Organization, Thomas M. Madruga,
Deborah Lee-Germain; Greines, Martin, Stein & Richland, Robert
A. Olson and Edward L. Xanders for Petitioner.
No appearance by Respondent.
Alexander Morrison + Fehr, Tracy L. Fehr; Ivie McNeill
Wyatt Purcell & Diggs, Rodney S. Diggs; Engelman Law and
Britany M. Engelman for Real Party in Interest.
________________________________
INTRODUCTION
This writ proceeding involves a statutory challenge for cause
filed against a trial court judge presiding over a wrongful
termination lawsuit. The parties are plaintiff Michael Ross and
his former employer, defendant Bassett Unified School District.1
Following a multimillion dollar jury verdict in favor of Ross,
the trial judge in this action, Honorable Stephanie Bowick,
received a text message from another judge on the court,
Honorable Rupert Byrdsong. According to Judge Bowick, “I
received a text message from Judge Byrdsong on my cellphone that
stated, quote, ‘$25 Million!! [Confetti emoji], [confetti emoji].’[2] I
did not respond to the text message.” Judge Byrdsong had
previously informed Judge Bowick that attorneys from his former
firm were trying the case. On one occasion he had greeted Ross’s
counsel in Judge Bowick’s courtroom during a break in the
proceedings and later brought Judge Bowick a food item. On
another, Judge Byrdsong had briefly observed, from the audience,
1 An individual employee of the school district was also named
as a defendant, but he is not a party to this writ proceeding.
2 We have added the brackets. The record does not contain
the text message, but we assume it included actual confetti emojis,
and not the words “confetti emoji.”
2
the jury selection in Judge Bowick’s courtroom, until Judge Bowick
had a note passed to him asking him to leave.
Upon receipt of the postverdict text message, Judge Bowick
disclosed to the parties the entire course of events involving Judge
Byrdsong. Pointing to Judge Byrdsong’s apparent support for Ross
and the resulting verdict in Ross’s favor, the school district sought
Judge Bowick’s disqualification, asserting that a “ ‘person aware of
the facts might reasonably entertain a doubt that the judge would
be able to be impartial’ ” (Code Civ. Proc., § 170.1, subd
(a)(6)(A)(iii)). The disqualification motion was assigned to Orange
County Superior Court Judge Maria D. Hernandez. (See Code Civ.
Proc., § 170.3, subd. (c)(5).) In a 10-page order, the assigned judge
denied the disqualification motion.
Defendant sought review by petition for writ of mandate. We
issued an order to show cause, and now deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Two Lawsuits Between the Parties
This is the second of two lawsuits between the parties. In
the first action, Ross sued the school district for, among other
things, racial discrimination. (Ross v. Bassett Unified School
District (Super. Ct. L.A. County, 2017, No. BC614556).) That case
settled. Ross then filed the present action, claiming that the school
district had fired him in retaliation for filing the first lawsuit.
2. Relevant Proceedings and Judge Byrdsong’s
Involvement
The complaint in the current action was filed on June 28,
2019. The matter was assigned to Judge Bowick. Jury selection
began on July 6, 2022, but it was Judge Bowick’s ruling on a
pretrial motion that would underlie the school district’s eventual
3
disqualification motion.3 By motion in limine, the school district
sought an order limiting plaintiff’s use of allegations of racial
discrimination he had made in his prior, settled, lawsuit. The
motion was formally addressed by the court at a hearing on
June 27, 2022, before the jury was impaneled. The subject was
then considered at several more hearings, with the court’s final
ruling coming on July 8, 2022. By its final ruling, the court
allowed Ross to introduce evidence of several instances of claimed
racial discrimination on which the first lawsuit was based. Trial
proceeded and on July 22, 2022, the jury rendered a verdict in
favor of Ross in the amount of $24,584,449.
On July 29, 2022, the court conducted a posttrial conference
with counsel in which she disclosed several contacts she had had
with Judge Byrdsong during and after the trial. The reporter’s
transcript of the conference is part of the record in this writ
proceeding. On August 8, 2022, the school district filed its
disqualification motion based on Judge Byrdsong’s contacts with
Judge Bowick.
Because Judge Byrdsong’s connection with the trial court
proceedings is at the heart of the school district’s motion, we
provide a chronology of key events:
June 27, 2022 – The school district had filed a written
motion in limine that is not part of the record in the current writ
proceeding. The motion sought to limit how Ross could use the
first discrimination lawsuit as evidence in the present action. At a
pretrial hearing, the school district agreed that Ross could refer to
the prior racial discrimination lawsuit, but argued that he should
3 Technically, the school district sought disqualification by
means of a “Statement of Disqualification,” not a motion. For ease
of reference, we refer to it as a “motion.”
4
be precluded from getting into the details of the allegations. Judge
Bowick pointed out that the school district’s moving papers had
been more extreme, seeking a ruling in limine precluding Ross
from “ ‘making any mention of the filing.’ ” Judge Bowick denied
this motion as overbroad, but directed Ross to inform her of exactly
what parts of the prior lawsuit he was planning to introduce. She
also stated that the school district could submit a proposed limiting
instruction to the jury.
At the end of the workday, Judge Bowick saw Judge
Byrdsong when she was leaving the building, and they exited the
courthouse together. Judge Byrdsong “commented that he had
noticed lawyers from his old firm in [her] courtroom.” According to
Judge Bowick, they “did not speak any further about that
observation or about the case.”
July 5, 2022 – At an additional pretrial conference, Judge
Bowick asked Ross’s attorney what details from the prior lawsuit
he intended to introduce at trial. After further discussion, Judge
Bowick indicated that the jury could be informed of the allegations
only in a general sense, stating only the names of the defendants
and the causes of action alleged; but she couched her language in
the form of a tentative ruling. (E.g., “And so at least right now my
belief is that . . . .” “Perhaps you can find some authority for me
between now and opening statement . . . .” “For now I’m going to
say . . . .”)
July 6, 2022 – Two things occurred on this date, but nothing
in the record confirms the chronological order of events. Our
record does not contain the reporter’s transcript from July 6, but
the transcript for July 7 documents that on the previous day there
had been further discussion of the evidentiary issue. On July 7,
the trial court stated, “There had been some discussions yesterday
5
about the court revising [its] ruling just a bit with respect to the
scope of discussions plaintiff would be allowed to discuss with the
jury and present evidence on with respect to the [prior] lawsuit.
[¶] The court had indicated, after further consideration of the
arguments of the parties, that the court would allow plaintiff to
give a brief explanation of the claims in that 2016 lawsuit and not
be limited to the names of the parties and the causes of action only,
and we had had a discussion about that.”
Also on July 6 – although with nothing in the record as to
whether it occurred before or after Judge Bowick indicated she
would revise her ruling – Judge Byrdsong entered the courtroom
during a break in jury selection. He briefly spoke with Ross’s
attorneys. Although Judge Bowick saw Judge Byrdsong in the
courtroom, she did not hear the conversation, and Judge Byrdsong
left before jury selection resumed. Later that same day, while
proceedings were in session, Judge Byrdsong entered the
courtroom again and told Judge Bowick’s judicial assistant that he
had “a food item” for Judge Bowick. He later returned “to deliver a
small container of food which he handed to [her] judicial
assistant.”4
July 7, 2022 – Before resuming jury selection, Judge Bowick
reminded counsel that, in discussions the previous day, she had
indicated an intent to allow Ross to discuss more of the prior
4 The school district would later assert that, when Judge
Byrdsong returned with the food, Judge Bowick “invited him back
to chambers,” although he “was not there long.” In her ruling on
the disqualification motion, Judge Hernandez impliedly found that
Judge Byrdsong did not enter chambers, based on Judge Bowick’s
recollection and her statement that she would have disclosed to
counsel if Judge Byrdsong had been in chambers. As we shall
discuss, substantial evidence supports this implied finding.
6
lawsuit. She asked Ross’s counsel to put on the record what he
wanted to place before the jury. When Ross’s counsel went into
great detail, Judge Bowick stated, “I will say yesterday, when the
court indicated it was willing to – or [found] it was appropriate to
allow the plaintiff to expand a bit on the nature of the claims the
court was inclined to, perhaps, have plaintiff give more summaries
of what happened in terms of the types of incidents without going
into the details of it, although I’m happy to consider [plaintiff’s
counsel’s] argument this morning.” As the argument progressed, it
appeared that some of the incidents of racial discrimination were
mentioned in the school district’s “charging packet” that provided
the basis for the district’s termination of Ross. Argument was then
suspended for jury selection.
During voir dire, Judge Bowick “noticed Judge Byrdsong
sitting in the audience.” Through her judicial assistant, Judge
Bowick passed a note to Judge Byrdsong, asking him to leave the
courtroom, which he did immediately. She later “confirmed with
Judge Byrdsong that he would not attend any further proceedings
in the action.” According to Judge Bowick, Judge Byrdsong “did
not return to the courtroom after July 7, 2022.” There is no
evidence to the contrary.
Following jury selection, Judge Bowick returned to the
unresolved evidentiary issue. The school district’s counsel agreed
that “the references that the [school district] has put in its
charging packet are fair [game].” At that point, Judge Bowick
asked for, and received, copies of the charging packet, the
underlying complaint, and the termination letter. She expressed
some frustration that the parties had not previously provided this
documentation, and indicated that she needed to review it to
determine what information the school district had considered as
7
part of its termination decision. She promised a ruling in the
morning.
July 8, 2022 – Having completed her review of the
documents, Judge Bowick informed the parties of her ruling.
Rather than limiting Ross to the names of the causes of action and
defendants in his prior complaint, she would allow him to give a
general explanation of each cause of action and identify 10 specific
examples of conduct alleged in that action. Judge Bowick
reminded the school district’s counsel that it could still draft a
special instruction for the jury that explained none of these
allegations had been proven.
July 22, 2022 – Following a two-week trial, on Friday,
July 22, 2022, the jury returned a verdict in favor of Ross and
against the school district in an amount exceeding $24.5 million.
July 24, 2022 – On the evening of Sunday, July 24, 2022,
Judge Byrdsong sent Judge Bowick a text message, reading, “$25
Million!!” followed by two confetti emojis. Judge Bowick did not
respond to the text message.
3. Judge Bowick’s On-the-record Disclosures to Counsel
On July 25, 2022, Judge Bowick asked Judge Byrdsong to
not have any further contact or communications with her about the
case; he agreed.5 Judge Bowick consulted a member of the
“California Judicial Ethics Committee” and Court Counsel.6 On
5 The record does not reflect whether Judges Byrdsong and
Bowick talked to each other or whether the communication was by
email or text.
6 The record does not indicate whether Judge Bowick
contacted the California Judges Association Judicial Ethics
Committee or the California Supreme Court’s Committee on
Judicial Ethics Opinions. Both provide ethics advice to judges.
8
July 26, 2022, she scheduled a posttrial conference in order to
disclose certain events to the parties. The conference took place on
July 29, 2022. All counsel were present.
At the posttrial conference, Judge Bowick made the following
disclosure:
“On July 26, 2022, I scheduled this posttrial conference to
provide a disclosure to the parties regarding recent events related
to this case. Specifically, a text message I received from Los
Angeles Superior Court Judge Rupert Byrdsong on the evening of
Sunday, July 24, 2022.
“I will also disclose encounters with Judge Byrdsong
pr[e]ceeding the July 24, 2022, communication which occurred
prior to and during the pendency of trial in this matter. I am
aware that Judge Byrdsong was previously a partner with the law
firm of Ivie McNeill Wyatt Purcell & Diggs, counsel for plaintiff,
prior to his appointment to the bench in 2014. Presently, Judge
Byrdsong sits down the hall on the third floor in Department 28 of
the Stanley Mosk Courthouse. On or about June 27, 2022, at the
end of the workday, I saw Judge Byrdsong on my way out of the
building and we exited the courthouse together. He commented
that he had noticed lawyers from his old firm in my courtroom. We
did not speak any further about that observation or about the case.
On July 6, 2022, during a break from jury selection proceedings, I
observed Judge Byrdsong enter the courtroom while I was on the
bench, and he proceeded to have a brief conversation with counsel
and legal assistants for plaintiff at counsel[’]s table. I could not
hear the conversation, but I recall that he left the courtroom before
the break ended and jury selection resumed. I recall that one or
more members of defendant’s trial team was also present in the
courtroom during this encounter. Later that same day, Judge
9
Byrdsong entered the courtroom while proceedings were in session
and passed along a message to me through my judicial assistant
offering me a food item. A short time later, while proceedings were
in session, Judge Byrdsong entered the courtroom again to deliver
a small container of food which he handed to my judicial assistant.
“On July 7th, 2022, we resumed jury selection in the
morning. When I noticed Judge Byrdsong sitting in the audience, I
passed a note through my judicial assistant asking him to leave
the courtroom, which Judge Byrdsong did immediately. I
subsequently confirmed with Judge Byrdsong that he would not
attend any further proceedings in this action. Judge Byrdsong was
not wearing a judicial robe on any occasion in which he visited the
courtroom. He did not return to the courtroom after July 7, 2022.
“On Friday, July 22, 2022, the jury returned a $25 million
verdict in favor of [Ross] in this action. On the evening on Sunday
July 24, 2022, I received a text message from Judge Byrdsong on
my cellphone that stated, quote, ‘$25 Million!! [Confetti emoji],
[confetti emoji].’ I did not respond to the text message. On
Monday, July 25, 2022, I asked Judge Byrdsong to not have any
further contact or communication with me about the case. Judge
Byrdsong agreed.
“As of this date, I have had no further communications with
Judge Byrdsong and do not intend to have any future
communications with him regarding this case. Judge Byrdsong
and I have never had any discussions about any parties, facts, or
legal issues relating to this case, its merits or rulings that I have
made or will make in the future. I have not had any
communications or interactions with Judge Byrdsong about this
case whatsoever, except for those communications and interactions
which I have disclosed today. None of the facts disclosed above
10
have had in the past, nor will have in the future, any effect on my
ability to be fair and impartial in presiding over this case.
“I am disclosing the text message because I believe that it is
appropriate to do so. I am further disclosing the other
communications in an excess of caution due to the cumulative
nature of each interaction and communication in connection with
the text message. I do not recuse myself from presiding over this
case or handling of any future proceedings because I believe there
is no basis to do so. I have conducted a fair trial and hearings in
this matter and I will continue to be fair and impartial to all
parties involved without bias or prejudice.”
At this point in the conference, one of the school district’s
lawyers stated that “this is obviously news to the defense,” and
that he and his client would need to evaluate the disclosure. One
of Ross’s attorneys volunteered that he was unaware of the text
message. He added, “Obviously, all counsel was there when Judge
Byrdsong came in the court, but there was no conversations that
was had with Mr. Byrdsong other than the pleasantries, ‘Hello,’
and at no time during the trial did plaintiff or anyone on plaintiff’s
team have any communication with Judge Byrdson[g] about the
case, regarding the case, any updates about the case, and that was
it.”
4. The School District’s Disqualification Motion
On August 5, 2022, the school district moved to disqualify
Judge Bowick on the basis that a person aware of the facts would
reasonably entertain a doubt that she would be able to be
impartial. (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) The
district argued that Judge Byrdsong was undoubtedly expressing
support for Ross, and this could not have escaped Judge Bowick.
Although the verdict had been received, there were still posttrial
11
motions to be heard. The school district took the position that a
reasonable layperson would doubt Judge Bowick’s impartiality in
ruling on those motions, given her receipt of Judge Byrdsong’s text
message.
The motion relied on Judge Bowick’s disclosure and on a
“verified statement” from the school district’s lawyers. The verified
statement was in unusual form in that it was a single statement,
with verifications by two different attorneys and a paralegal, with
little indication as to which portions of the statement were verified
by which individuals.7 The statement represented that, when
Judge Byrdsong greeted Ross’s counsel, “[t]here were handshakes,
hugs, and high fives . . . .” The statement also represented that, on
July 6, when Judge Byrdsong brought food for Judge Bowick,
Judge Bowick invited Judge Byrdsong into her chambers. It
claimed that, “[o]n July 7, 2022, the day after Judge Byrdsong
went back into chambers with Judge Bowick, Judge Bowick
7 For example, the verified statement asserts that “Judge
[Bowick]’s revelations triggered the following remembrance from
defense counsel. When Judge Byrdsong appeared with food for
Judge Bowick, she invited him back to chambers on one occasion
and addressed him as ‘judge.’ All three of the below declarants
saw Judge Byrdsong go into chambers.” While the statement is
clear that “all three” declarants assert they saw Judge Byrdsong go
into chambers, it does not indicate which declarant had the
“remembrance” that Judge Bowick invited Judge Byrdsong into
chambers and called him “Judge.” Later in the same combined
verified statement, the attorneys assert that one of their number,
Attorney Deborah Lee-Germain, did not know Judge Byrdsong was
a judicial officer at the time he emerged from Judge Bowick’s
chambers – a statement which does not easily co-exist with counsel
hearing Judge Bowick call Judge Byrdsong “Judge” when inviting
him into chambers.
12
changed her prior ruling and allowed in evidence as to the specific
allegations of race discrimination from the prior lawsuit . . . .”
While the school district did not claim that Judge Bowick was
actually biased in this case, it took the position that a person
would reasonably entertain a doubt about Judge Bowick’s
impartiality given (among the other facts) her “change of a critical
ruling after meeting with [Judge Byrdsong] in chambers.”
5. Judge Bowick’s Answer
Judge Bowick responded with a verified answer confirming
the truth of her previous disclosure. She challenged several of the
representations of defense counsel, specifically stating that Judge
Byrdsong was never invited into chambers. She stated, “I do not
recall any point during the pendency of trial in this matter in
which Judge Byrdsong joined me in chambers, and I would have
disclosed such an event had it occurred. I also asked my Judicial
Assistant whether he recalled such an event and confirmed that he
did not.”
Court counsel filed points and authorities opposing
disqualification, adding to the record the procedural history of
Judge Bowick’s ruling on the pretrial evidentiary issue that we
have detailed above.
6. The Denial of the Motion by Judge Hernandez
On August 23, 2022, the Judicial Council assigned Judge
Hernandez from the Orange County Superior Court to rule on the
disqualification motion.
On September 15, 2022, Judge Hernandez issued a written
order. First, she deemed it unnecessary to hold a formal hearing
and resolved the matter on the briefs and evidence submitted.
Then, she denied the motion, concluding that the school district
had failed to meet its burden to establish a person aware of the
13
facts would reasonably entertain a doubt as to Judge Bowick’s
ability to remain impartial.
As to whether Judge Bowick changed her pretrial ruling on
the evidentiary issue following an in-chambers meeting with Judge
Byrdsong, Judge Hernandez concluded this was unsupported by
the evidence, explaining as follows: “Based on the assertion that
Judge Byrdsong had gone into chambers, the [school district]
speculates that Judge Bowick changed her ruling on admissibility
of the allegations of the prior suit based on her interaction with
Judge Byrdsong. This speculates about Judge Bowick’s veracity
and motivations for her rulings, and provides no facts establishing
grounds for disqualification. There is conflicting evidence whether
Judge Byrdsong even went into chambers. [Citations.] Judge
Bowick declares she would have disclosed it had it occurred.
[Citation.] Judge Bowick denied that she discussed the merits of
the case with Judge [Byrdsong.] [Citation.] She disclosed that
Judge Byrdsong had told her that he had noticed lawyers from his
former firm was appearing before her. [Citation.] She disclosed
she sent a note to Judge Byrdsong telling him not to observe the
proceedings. [Citation.] She disclosed it when she received the
‘$25 million’ text from Judge Byrdsong. [Citation.] Judge Bowick’s
disclosures, and the absence of any disclosures about any other
communications, along with her statement that she did not discuss
the merits, are compelling evidence that no discussions of the
merits took place.”
Judge Hernandez concluded, based on Judge Bowick’s
statements in the record, that Judge Bowick changed her ruling on
the admissibility of the allegations in the prior lawsuit “based on
her understanding of the facts and law.”
14
7. Writ Proceedings
“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.” (Code Civ. Proc., § 170.3,
subd. (d).) On September 28, 2022, the school district filed a
petition for writ of mandate challenging Judge Hernandez’s order
denying disqualification. The school district sought an immediate
stay of postverdict proceedings in the trial court.
We issued the stay and, following receipt of a preliminary
opposition and reply, issued an order to show cause. Ross filed a
return to the order to show cause, and the school district filed a
reply.
DISCUSSION
1. Preliminary Matter
Both parties include in their briefing facts that are not in the
record. For example, the school district asserts that, at the time of
its petition, Judge Byrdsong was “the current President of the
California Judges Association and an advisory member of the
Judicial Council.” Ross replies that Judge Byrdsong’s term ended
prior to the filing of the writ petition. While it appears undisputed
that Judge Byrdsong is a prior President of the California Judges
Association, neither this fact, nor whether Judge Bowick was
aware of his position, was before the court in the disqualification
motion. For his part, Ross (through his counsel’s verification)
makes a number of factual assertions regarding whether the
specific attorneys representing him in this matter overlapped with
Judge Byrdsong at the law firm. He denies that there were any
hugs or high fives when Judge Byrdsong greeted his counsel;
claiming only a brief and mundane greeting. He also states, with
15
no evidentiary support, that “Judge Byrdsong is known to visit
other courtrooms in the courthouse to observe trials.” None of
these purported facts were before the trial court. We do not
consider facts asserted for the first time in this court. (Wechsler v.
Superior Court (2014) 224 Cal.App.4th 384, 389 (Wechsler).)
2. Governing Authority and Standard of Review
Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(iii) provides that a judge shall be disqualified if, “[f]or any
reason: [¶] [a] person aware of the facts might reasonably
entertain a doubt that the judge would be able to be impartial.”
This standard is “ ‘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 [person] 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.” [Citations.] While this objective standard
clearly indicates that the decision on disqualification not be based
on the judge’s personal view of his own impartiality, it also
suggests that the litigants’ necessarily partisan views not provide
the applicable frame of reference. [Citations.] Rather, “a judge
faced with a potential ground for disqualification ought to consider
how his participation in a given case looks to the average person on
the street.” ’ ” (Jolie v. Superior Court of Los Angeles County
(2021) 66 Cal.App.5th 1025, 1039-1040.)
“ ‘ “The ‘reasonable person’ is not someone who is
‘hypersensitive or unduly suspicious,’ but rather is a ‘well-
16
informed, thoughtful observer.’ ” [Citation.] “[T]he partisan
litigant emotionally involved in the controversy underlying the
lawsuit is not the disinterested objective observer whose doubts
concerning the judge’s impartiality provide the governing
standard.” ’ [Citations.] Moreover, the 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.)8
A party asserting disqualification has a “heavy burden” and
“must ‘ “clearly” ’ establish the appearance of bias.” (Wechsler,
supra, 224 Cal.App.4th at p. 391.) We expect our judges to be
made of strong stuff and “the appearance-of-partiality ‘standard
“must not be so broadly construed that it becomes, in effect,
presumptive, so that recusal is mandated upon the merest
unsubstantiated suggestion of personal bias or prejudice.” ’ ”
(Haworth v. Superior Court (2010) 50 Cal.4th 372, 389; cf. Craig v.
Harney (1947) 331 U.S. 367, 376 [“Judges are supposed to be men
[and women] of fortitude, able to thrive in a hardy climate.”].)
Stated more viscerally, “ ‘Judicial responsibility does not require
8 In their statement in support of disqualification, the school
district’s counsel suggested that the standard was violated
because, “counsel could not look their clients in the eye and tell
them that there was no doubt that Judge Bowick was not even
implicitly or subconsciously influenced by her fellow jurist’s clear
adoption of and support of one side of the case.” But, the partisan
attorney or litigant is not the disinterested objective observer
described in the authorities we have cited.
17
shrinking every time an advocate asserts the objective and fair
judge appears to be biased. The duty of a judge to sit where not
disqualified is equally as strong as the duty not to sit when
disqualified.’ ” (Flier v. Superior Court (1994) 23 Cal.App.4th 165,
170 (Flier); see also Code Civ. Proc., § 170.)
When the facts are not in dispute, the issue of how an
objective person would view the judge’s ability to be impartial is a
legal question we review de novo. (Briggs v. Superior Court (2001)
87 Cal.App.4th 312, 319; Flier, supra, 23 Cal.App.4th at p. 171.)
When the facts are disputed, we review for substantial evidence
the factual findings of the court ruling on the disqualification
motion. (United Farm Workers of America v. Superior Court (1985)
170 Cal.App.3d 97, 106 [“We are, of course, bound by the [judge
ruling on the disqualification motion]’s factual findings. . . .”]; see
also Alper v. Rotella (2021) 63 Cal.App.5th 1142 [applying
substantial evidence review to factual findings on motion to vacate
arbitration for arbitrator’s disqualification]; cf. In re Zamer G.
(2007) 153 Cal.App.4th 1253, 1262-1263 [substantial evidence
review for factual findings regarding motion to disqualify counsel].)
3. The Disqualification Motion Was Properly Denied
a. There Is No Adverse Inference Arising From Judge
Bowick’s Final Ruling on the Evidentiary Issue
Before turning to the interactions with Judge Byrdsong that
Judge Bowick addressed in her disclosure, we first consider the
school district’s argument that a reasonable observer would doubt
Judge Bowick’s objectivity because she changed her ruling on the
evidentiary issue after meeting with Judge Byrdsong privately in
her chambers.
Whether Judge Bowick met with Judge Byrdsong in her
chambers was a disputed issue, one which Judge Hernandez
18
impliedly resolved against the existence of a meeting.9 This
conclusion is supported by substantial evidence – specifically,
Judge Bowick’s statement that Judge Byrdsong did not go into her
chambers and she would have disclosed it if he had. While the
school district’s statement suggests that both attorneys and the
paralegal who submitted verifications saw Judge Byrdsong go into
chambers, the statement contains internal inconsistencies
(regarding, for example, when each realized Judge Byrdsong was a
judge), and Judge Hernandez could reasonably have found that the
absence of individual declarations documenting individual
recollections rendered the group declaration less worthy of belief.
The school district downplays the factual dispute regarding
whether Judge Byrdsong went into Judge Bowick’s chambers,
arguing that it is a “minor, immaterial detail.” We do not quite
understand the argument. We assume the point was important
because the school district raised it in its briefing. The school
district’s contention appears to be that Judge Byrdsong was invited
into chambers with Judge Bowick and, to a reasonable observer,
the inference is that Judge Bowick changed her ruling because of
what took place behind closed doors. The school district argued
9 Judge Hernandez acknowledged the factual dispute but did
not by express words find that Judge Byrdsong did not go into
chambers. Judge Hernandez stated that Judge Bowick
represented that she would have disclosed a chambers meeting if it
had occurred, and then Judge Hernandez held that Judge Bowick’s
“disclosures, and the absence of any disclosures about any other
communications, along with her statement that she did not discuss
the merits, are compelling evidence that no discussions of the
merits took place.” Implicit in these findings is that Judge
Bowick’s representation that Judge Byrdsong did not go into
chambers was credible and persuasive.
19
that Judge Bowick “change[d] a critical ruling after meeting with
[Judge Byrdsong] in chambers.” Although a meeting in chambers
would be a relevant, nondispositive fact, if true, we conclude
substantial evidence supports Judge Hernandez’s implied finding
that there was no meeting.
As to the school district’s point that Judge Byrdsong’s
conduct in general influenced Judge Bowick to change her ruling in
Ross’s favor, Judge Hernandez expressly found that Judge
Bowick’s ruling was based on her view of the law and facts.
Substantial evidence supports the finding. To recap our previous
chronology: On July 5, Judge Bowick indicated a tentative, narrow
ruling.10 On July 6, she was already suggesting that she would
broaden it. On July 7, Ross argued for an even broader
interpretation, and the parties finally provided Judge Bowick with
the relevant documents. On July 8, after reviewing the documents,
Judge Bowick issued a final, broader ruling.11
Substantial evidence supports Judge Hernandez’s ruling
that Judge Bowick’s evolving thought process was not influenced
10 We observe that this initial ruling on the motion in limine –
which the school district found favorable – came after Judge
Byrdsong told Judge Bowick as they walked out of the courthouse
that members of his prior firm were appearing before her.
11 We pause to point out that there is nothing intrinsically
suspicious about a judge changing her ruling on a motion in limine.
“[I]n limine rulings are not binding because the trial court has the
power to reconsider, modify or set aside its order at any time prior
to the submission of the cause.” (People v. Yarbrough (1991)
227 Cal.App.3d 1650, 1655; see also People v. Turner (1990)
50 Cal.3d 668, 708; Cristler v. Express Messenger Systems, Inc.
(2009) 171 Cal.App.4th 72, 90, fn. 6.)
20
by Judge Byrdsong’s greeting of Ross’s counsel, the provision of a
food item on July 6, and by his brief appearance in the audience
section of her courtroom on July 7 (when she had her judicial
assistant pass him a note asking him to leave).
The school district argues that it is a “critical, undisputed”
fact that “between July 6, when Judge Byrdsong first appeared in
the courtroom clearly affiliated with one side, and July 8, the trial
court—in the words of Judge Bowick’s own minute order—
’revise[d] its previous ruling . . .’.” But this unpersuasive cause-
and-effect analysis is both speculative and based on an
oversimplification of the proceedings painted with a cherry-picked
timeline. As the record is not clear when Judge Byrdsong came
into Judge Bowick’s courtroom on July 6, it may be that Judge
Bowick indicated her intention to change her ruling before Judge
Byrdsong “first appeared in the courtroom.” In any event, Judge
Hernandez rejected the idea that Judge Bowick’s evidentiary
ruling was influenced by Judge Byrdsong. The defense argument,
she wrote, “speculates that Judge Bowick changed her ruling on
admissibility of the allegations of the prior suit based on her
interaction with Judge Byrdsong. This speculates about Judge
Bowick’s veracity and motivations for her rulings, and provides no
facts establishing grounds for disqualification.” Judge Hernandez
concluded that Judge Bowick’s change from her earlier tentative
ruling was the product of her evaluation of the law and facts, not
the result of Judge Byrdsong’s presence. This factual finding is
supported by substantial evidence. We conclude that no
disinterested observer would reasonably question Judge Bowick’s
impartiality because of any change in her ruling.
21
b. The Facts Judge Bowick Disclosed Do Not Require
Disqualification
Stripped of any adverse inferences arising from the timing of
Judge Bowick’s pretrial ruling on a substantively important, but
procedurally routine, evidentiary issue, we are left with a final
discrete issue: would the facts disclosed by Judge Bowick lead a
well-informed, thoughtful and reasonable observer to entertain a
doubt about Judge Bowick’s impartiality?
Although the record covers several days of pretrial and
postverdict events, the relevant facts involve little that Judge
Bowick did or said. We ask: Whether an objective person would
reasonably entertain a doubt about Judge Bowick’s impartiality
because of Judge Byrdsong’s actions.
We review briefly again Judge Byrdsong’s actions as
revealed by the record before us: (1) On the way out of the
courthouse, he told Judge Bowick that some members from his
former firm were trying the case. (Judge Bowick said nothing.)
(2) During a break in proceedings, he entered Judge Bowick’s
courtroom and greeted Ross’s counsel. (3) Through messages
conveyed by way of Judge Bowick’s judicial assistant, he offered
her food and later delivered it. (4) Judge Byrdsong briefly sat in
the audience during jury selection, until Judge Bowick (through
her judicial assistant) asked him to leave. (5) After the verdict,
Judge Byrdsong sent Judge Bowick the text message.
As to Judge Byrdsong’s comment to Judge Bowick as they
left the courthouse on June 27, school district counsel conceded at
oral argument that sort of remark was not inappropriate. There is
no evidence it had any effect on Judge Bowick. We agree with
Judge Hernandez’s conclusion that, “A brief encounter with a
judicial colleague who years earlier had worked with plaintiffs’ law
22
firm and knew and was friendly with the attorneys on the case
forms no basis for Judge Bowick’s disqualification.”
As for Judge Byrdsong sitting in the audience, the school
district suggests that Judge Bowick “knew that Judge Byrdsong’s
presence in the courtroom in support of one side of the case was
wrong. That is why she asked him, after he appeared on a second
day, to depart.” Judge Bowick’s response to seeing Judge Byrdsong
in her courtroom does not suggest her impartiality was negatively
impacted. As Judge Hernandez reasonably found, it suggests that,
if Judge Bowick perceived that Judge Byrdsong was intent on
influencing her, she would have nothing of it. She asked him to
leave and he left. An objective person apprised of these facts would
have no reason to doubt Judge Bowick’s impartiality.
We accept for our analysis the school district’s contention
that an objective observer would understand the text message to
reflect that Judge Byrdsong was pleased about the verdict the jury
rendered for Ross; indeed, even court counsel in responding to the
motion referred to the text as “celebratory.” But receipt of an
emoji-laden text suggests nothing about Judge Bowick’s ability to
be fair and impartial or a reasonable person’s assessment of the
situation. What Judge Bowick did in response to the text was
what a reasonable person would expect her to do in discharging
her own ethical obligations – she directed Judge Byrdsong to have
no further contact or communications with her regarding the case,
and promptly disclosed the text, which was an ex parte
communication to her, to the parties. (See Cal. Code of Jud.
Ethics, canons 3B(7)(d), 3E(2)(a).)12
12 California Code of Judicial Ethics, canon 3B(7)(d) provides:
“If a judge receives an unauthorized ex parte communication, the
23
In short, we agree with Judge Hernandez that nothing in the
events would suggest to an objective observer a doubt that Judge
Bowick was impartial.13
c. Case Authority, Although Limited, Generally Is In
Accord
The parties have submitted, and independent research has
disclosed, little California authority on the precise issue of whether
the trial judge’s knowledge of another judge’s bias in favor of a
party’s counsel can reasonably be perceived as creating a doubt as
to the trial judge’s ability to remain impartial. People v. Panah
(2005) 35 Cal.4th 395 appears to be the closest California
authority. The case involved a death penalty prosecution arising
out of the brutal murder of a child. The victim’s mother was a
paralegal or legal secretary, her fiancé was a criminal defense
attorney. The defendant did not argue that the individual judge
trying the case was biased against him. “Defense counsel’s
judge shall make provision promptly to notify the parties of the
substance of the communication and provide the parties with an
opportunity to respond.”
California Code of Judicial Ethics, canon 3E(2)(a) provides:
“A judge shall disclose information that is reasonably relevant to
the question of disqualification under Code of Civil Procedure
section 170.1, even if the judge believes there is no actual basis for
disqualification.”
13 In its writ petition, the school district tries to bolster its case
for presuming bias by adding arguments that Judge Byrdsong is
“influential” and a “close” colleague of Judge Bowick. As we have
discussed, the argument that Judge Byrdsong is “influential” relies
on facts not introduced before the trial court, and we therefore
disregard it. If we were to assume that the two judges were “close
colleagues,” our analysis would be the same.
24
declaration in support of the disqualification motion made it clear
that he was not asserting that the trial court was personally biased
against him but, rather, that an institutional bias against him
pervaded the Van Nuys courthouse because of the ‘unusual
relationship between the Van Nuys court system and the family of
the deceased in this case.’ ” (Id. at p. 445.) The defendant relied
on several incidents, including: the victim’s mother held a private
conference with a different judge in his adjacent courtroom; graffiti
on a railing outside the courtroom advocated the defendant’s
death; and a bailiff transporting prisoners to the courtroom
suggested that the defendant should kill himself. (Id. at p. 445.)
Our Supreme Court concluded the challenge was procedurally
defective but also substantively meritless, stating, “Defendant
asserts that an institutional bias on the part of other judges or
courthouse personnel is sufficient to disqualify a judge as to whose
impartiality no question exists. We are far from persuaded the
allegations in defense counsel’s declaration demonstrated a
pervasive institutional bias against defendant but, in any event,
nothing in the disqualification statute supports his argument.”
(Id. at pp. 446-447.)14
We find analogous, although not directly on point, some out
of state authority that a judge is not biased, nor would a
reasonable person believe otherwise, simply because the judge – by
no action of his or her own – receives a biased ex parte
communication from a third party about the pending matter. In
Jackson v. State (Miss.Ct.App. 2007) 962 So.2d 649, during the
14 We recognize that the present case does not directly involve
institutional bias by all judges, but in light of the school district’s
argument about the effect of Judge Byrdsong’s actions on Judge
Bowick, we find the Supreme Court’s observations pertinent.
25
course of the proceedings, an unidentified attorney sent the trial
judge a fax, claiming that the defendant’s attorney attempted to
bribe a police informant in exchange for perjured testimony. (Id.
at p. 663.) The trial court indicated that it would not consider the
fax or investigate the claims made therein. The defendant argued
that the court should have recused itself because the information
in the fax, whether true or not, made it impossible for the judge to
maintain impartiality. (Ibid.) The appellate court disagreed,
concluding, “[Defendant] only speculates that [the trial judge]
could not have been impartial, but there is nothing among the
record that suggests [the trial judge] was or could have been
viewed as partial to the prosecution. Mere speculation is
insufficient to raise reasonable doubt as to the validity of the
presumption that the trial judge was qualified and unbiased.”
(Ibid.; see also Bailer v. Com. (Ky. 2012) 2012 WL 601264 [trial
judge not biased because one of the witnesses was another judge on
the court who had heard threats to witnesses in previous
proceeding];15 Mungin v. State (Fla. 2006) 932 So.2d 986, 994 [no
requirement that a trial judge recuse simply because a fellow judge
is a witness].)
We are equally persuaded that the receipt by a trial judge of
an apparently celebratory text that is disclosed promptly to the
parties shows neither bias nor an appearance of bias, particularly
15 California’s prohibition against the citation of unpublished
opinions applies only to opinions originating in California. (Cal.
Rules of Court, rule 8.1115.) “Opinions from other jurisdictions
can be cited without regard to their publication status,” for their
persuasive value. (Lebrilla v. Farmers Group, Inc. (2004)
119 Cal.App.4th 1070, 1077.)
26
when followed by a directive to the texting party that he is to have
no further contact with the trial judge.16
d. The Timing of Judge Bowick’s Disclosure Does Not
Suggest an Appearance of Bias
The school district argues that Judge Bowick took “half
measures” and her “belated” disclosure did nothing to “rectify” the
16 In its reply brief, the school district suggests that a “concern
about the influence of judicial colleagues on the same court is why
judicial divorce cases are assigned to another county and why
appeals involving family members of justices of this district are
assigned to other districts. (See, e.g., Klein v. Hughes (Aug. 28,
2003 order, A103940).)” The Klein citation appears to be to some
court order that is not part of the record. The Court of Appeal
decision in that case has nothing to do with divorce proceedings or
disqualification and, in any event, is not published and therefore
not citeable. (Cal. Rules of Court, rule 8.1115(a).) The school
district cites no authority for the claimed out-of-county assignment
of judicial divorce cases or cases involving a judge’s family. Even if
a particular trial court has an informal policy about transferring
cases to another county when a matter involves the personal
interests of one of that court’s judges, that is not this case. (See
also Cal. Com. Jud. Ethics Opns., Oral Advice Summary No. 2016-
015 [presiding judge may not disqualify an entire bench but may
make an administrative assignment of a case to another court]
https://www.judicialethicsopinions.ca.gov/wp-
content/uploads/cjeo_oral_advice_summary_2016-015.pdf [as of
Mar. 8, 2023], archived at ; see
also Cal. Judges Assn., Jud. Ethics Com., Opn. No. 62
https://www.caljudges.org/docs/Ethics%20Opinions/Op%2062%20Fi
nal.pdf [as of Mar. 8, 2023], archived at ; Cal. Judges Assn., Jud. Ethics Com., Opn. No. 63
https://www.caljudges.org/docs/Ethics%20Opinions/Op%2063%20Fi
nal.pdf [as of Mar. 8, 2023], archived at .)
27
problems caused by Judge Byrdsong’s conveyed bias. California
Code of Judicial Ethics, canon 3E(2)(a) provides that, in all trial
court proceedings, a judge shall disclose “information that is
reasonably relevant to the question of disqualification under Code
of Civil Procedure section 170.1, even if the judge believes there is
no actual basis for disqualification.” Whether Judge Bowick had
an obligation to disclose earlier that Judge Byrdsong told her
Ross’s attorneys were from his old firm, or that it was Judge
Byrdsong who had greeted the attorneys in her courtroom, or that
it was Judge Byrdsong who had briefly watched the proceedings
from the audience until she asked him to leave is an incomplete
statement of the issue before us. The more appropriate inquiry is
whether the disclosures Judge Bowick actually made or did not
make would lead a person aware of the facts to reasonably
entertain a doubt about her ability to be impartial. In ruling on
the motion, Judge Hernandez concluded that the objective person
would not. We agree.
DISPOSITION
The petition for writ of mandate is denied. Ross shall
recover his costs in this proceeding from the school district.
RUBIN, P. J.
WE CONCUR:
BAKER, J. WILEY, J.*
* Justice of the Court of Appeal, Second Appellate District,
Division Eight, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
28