Jolie v. Superior Court

Filed 7/23/21; see concurring opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANGELINA JOLIE, No. B308958
Petitioner, (Super. Ct. No. BD646058)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
WILLIAM BRADLEY PITT,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Erick L. Larsh,
Judge. Petition granted.
Bley & Bley, Samantha Bley DeJean, Stefani Radist;
Greines, Martin, Stein & Richland, Robert A. Olson and Jeffrey
Raskin for Petitioner.
Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr.,
Jillian N. London; Young Spiegel & Lee, Lance S. Spiegel; Elkins
Kalt Weintraub Reuben Gartside, Anne C. Kiley; Young, Spiegel,
Hillman & Hosp, Lance S. Spiegel and Anne C. Kiley for Real
Party in Interest.
___________________
Angelina Jolie filed a statement of disqualification
challenging Judge John W. Ouderkirk (Ret.), the privately
compensated temporary judge selected by Jolie and William
Bradley Pitt to hear their family law case, based on
Judge Ouderkirk’s failure to disclose, as required by the
California Code of Judicial Ethics, several matters involving
Pitt’s counsel in which Judge Ouderkirk had been retained to
serve as a temporary judge. Orange County Superior Court
Judge Erick Larsh, sitting by assignment to decide the issue,
ruled Jolie’s statement of disqualification was untimely and the
new information disclosed by Judge Ouderkirk would not cause a
person aware of the facts to reasonably entertain a doubt that he
was unable to be impartial.
In her petition for writ of mandate and supporting papers,
Jolie argues her statement of disqualification was timely;
Judge Ouderkirk’s failure to make mandatory disclosures
violated his ethical obligations; and, under the circumstances
here, Judge Ouderkirk’s ethical breach, when considered with the
information disclosed concerning his recent professional
relationships with Pitt’s counsel, might cause an objective person,
aware of all of the facts, reasonably to entertain a doubt as to
Judge Ouderkirk’s ability to be impartial. We agree, grant the
petition and direct the superior court to vacate its order of
November 16, 2020 denying the statement of disqualification and
to enter a new order disqualifying Judge Ouderkirk from serving
as a temporary judge in the underlying matter.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Selection of Judge Ouderkirk To Serve as a
Temporary Judge and the Initial Disclosures
Jolie filed for dissolution of her marriage to Pitt on
September 19, 2016. The parties selected Judge Ouderkirk, who
had officiated at their wedding in France in August 2014, to serve
as a temporary judge hearing the matter; and the superior court
appointed Judge Ouderkirk as a temporary judge for all purposes
on January 9, 2017.
On January 3, 2017, prior to Judge Ouderkirk’s
appointment, both Judge Ouderkirk and his alternative dispute
resolution provider, Alternative Resolution Centers (ARC), made
disclosures regarding privately compensated matters in which
Judge Ouderkirk had been involved and in which Jolie’s counsel,
Laura A. Wasser, or her law firm, Wasser Cooperman & Mandles,
or Pitt’s counsel, Lance S. Spiegel, or his law firm, Young Spiegel
& Lee, had served as counsel for one of the parties. Judge
Ouderkirk disclosed one such completed matter involving Wasser.
He disclosed five completed matters involving Spiegel and two
additional matters in which a lawyer from Spiegel’s firm had
represented one of the parties. Judge Ouderkirk stated he was
awaiting appointment in one additional case. Judge Ouderkirk’s
disclosure letter also stated, “I will continue to consider accepting
other cases as other additional cases may arise from time to time
while the Jolie/Pitt case is still pending. Such other cases might
involve a party, lawyer, law firm and/or witnesses involved in the
Jolie/Pitt matter.”
ARC’s disclosure letter identified six completed cases in
which Spiegel or his law firm had been counsel for one of the
parties, but only two of those cases were not included in
3
Judge Ouderkirk’s disclosure report (making a total of 10 cases
involving Spiegel or his firm, nine of which were completed). ARC
did not identify any cases in which Judge Ouderkirk had been
retained that involved Wasser.
The ARC letter, which erroneously referred to
Judge Ouderkirk’s role as a neutral engaged by the parties to act
as an arbitrator (and, therefore, subject to a different set of rules
regarding disclosure), contained the following statement: “To
further comply with CCP section 1281.85 as adopted by the
Judicial Council of California and effective as of July 1, 2002 ARC
makes the following disclosure: If selected as a neutral arbitrator
the Arbitrator selected in the instant matter will entertain and
accept offers of permitted employment or new professional
relationships from parties, attorneys, or law firms involved in a
case while this case is pending. If the neutral arbitrator is
appointed on this case, the neutral arbitrator will also inform the
parties of any subsequent offer while this case is pending.”
2. Extension of Judge Ouderkirk’s Appointment and the
2018 Disclosures
Judge Ouderkirk’s initial appointment expired on
December 31, 2017. The parties and their counsel stipulated to
the extension of that appointment, and on February 6, 2018 the
superior court approved the stipulation and appointed
Judge Ouderkirk to serve as a privately compensated temporary
judge through December 31, 2018.
On May 8, 2018, after a new attorney associated in with
Wasser as counsel for Jolie (Priya Sopori of Greenberg Glusker),
ARC wrote counsel noting a hearing in the case was scheduled for
May 16, 2018 and identifying six cases in which Judge Ouderkirk
had been retained that involved counsel for the parties. Three of
4
the six matters had previously been disclosed in ARC’s January
2017 letter. Of the three new matters, both Spiegel and Wasser
were counsel in one; Spiegel was counsel in another (In re
Marriage of Levitan); and Wasser’s firm represented a party in
the third.
Samantha Bley DeJean replaced Wasser as Jolie’s lead
counsel in August 2018. In response ARC again sent a disclosure
letter to counsel, which repeated the disclosures from its May 8,
2018 letter. Judge Ouderkirk on August 30, 2018 also sent a
supplemental disclosure letter. Judge Ouderkirk stated he had
nothing to disclose regarding DeJean or the Law Offices of Bley
and Bley and had been retained in a matter involving another of
Jolie’s new lawyers but the case had settled and his only
participation was to sign the judgment. He also reported he had
presided over the trial in the matter for which he had been
awaiting appointment in January 2017. Judge Ouderkirk’s letter
again advised the parties, “I will continue to consider accepting
other cases as other additional cases may arise from time to time
while the Jolie/Pitt case is still pending. Such other cases might
involve a party, lawyer, law firm and/or witnesses involved in the
Jolie/Pitt matter.”
3. Case Developments
In October 2018 the parties and their counsel (DeJean and
Spiegel) stipulated to an extension of Judge Ouderkirk’s
appointment through June 30, 2019. The superior court
approved the stipulation on November 5, 2018. The appointment
was again extended by agreement and court order in November
2018 through December 31, 2019 and once again in September
2019 to the earlier of December 31, 2020 or six months following
entry of judgment on all reserved matters (or through completion
5
of any requests for order pending on the date the appointment
would otherwise expire).
A judgment for custody of the children was entered on
November 21, 2018. A judgment for dissolution of marriage,
status only, was entered on April 12, 2019. On June 20, 2020 Pitt
filed a request for order seeking to change the custody and
visitation provisions of the November 2018 judgment and
requesting an evidentiary hearing. Jolie opposed the request.
Trial was set for October 5, 2020.
4. The Request for Additional Disclosures
On July 21, 2020, after receiving Pitt’s request for a new
custody order and nearly two years since Judge Ouderkirk had
made any disclosures, DeJean wrote ARC inquiring about
additional matters in which Judge Ouderkirk may have been
retained in which Pitt’s counsel was also involved. ARC
identified two new matters that were active into 2020 (Merade, in
which Spiegel was counsel of record, and Hankey, which involved
Anne C. Kiley, Spiegel’s cocounsel for Pitt); a previously
identified matter in which a hearing had been held in 2019
(Levitan); a 2017 case (Lally-Arena) that had not previously been
disclosed; and a second, completed 2017 case (Fisher), which had
been disclosed.
Upon receipt of ARC’s disclosures, DeJean wrote
Judge Ouderkirk asking for details of the matters included in the
ARC letter, requesting that Judge Ouderkirk identify any
additional matters in which he had been involved with Spiegel,
Kiley or their law firms, reminding Judge Ouderkirk of his duties
of disclosure and stating, “Such ongoing professional
relationships for privately compensated judicial or quasi-judicial
officers create an appearance of impropriety.”
6
In his response Judge Ouderkirk made several corrections
and additions to matters identified in the ARC disclosure. As to
Levitan, which Judge Ouderkirk described as “remarkably high
value and hotly contested,” Judge Ouderkirk stated the case had
been reported to him as settled. His involvement prior to that
time was extremely limited. His appointment had thereafter
been extended in 2019 to decide a postjudgment reserved
financial issue. That issue was never presented to him. It was
subsequently established that Spiegel had requested a further
extension of Judge Ouderkirk’s appointment in Levitan; that
request was opposed and ultimately denied by the court.
According to Judge Ouderkirk, Merade was a single-issue
custody matter that required only “a few hours of court time.”
The engagement began in April 2019 and ended in February
2020. Inclusion of Lally-Arena in the ARC disclosure was a
mistake; Spiegel’s firm was not involved. Finally,
Judge Ouderkirk explained the Hankey case, where his
involvement began in 2017 and continued until his appointment
expired on June 1, 2020, had not previously been disclosed
because Kiley did not substitute in until December 2019 (as the
most recent of her client’s many new lawyers).
5. Jolie’s Efforts To Disqualify Judge Ouderkirk
On August 7, 2020, two days after receiving Judge
Ouderkirk’s response, Jolie asked Judge Ouderkirk to recuse
himself based on the undisclosed ongoing professional
relationships with Pitt’s counsel. When Judge Ouderkirk did not
recuse himself, Jolie filed a verified statement of disqualification
in superior court, asserting a reasonable person would entertain
a doubt whether Judge Ouderkirk could be impartial in the
proceedings in light of his failure to disclose multiple
7
professional, business and financial relationships, ongoing during
the course of the matter, with Pitt’s counsel and their law firms.
Pitt filed an opposition to Jolie’s statement of
disqualification, contending the request “is a thinly veiled
attempt by Jolie to delay the adjudication of long-pending custody
issues,” and asserting Judge Ouderkirk had complied with “all
standard ethical practices and rules.”
On August 18, 2020 Judge Ouderkirk filed a verified
answer to Jolie’s statement of disqualification. After a detailed
description of the factual background, Judge Ouderkirk asserted
he and ARC had made all required disclosures in a timely
manner at the time of his initial appointment. As to subsequent
disclosures, Judge Ouderkirk insisted that the pertinent canon of
the California Code of Judicial Ethics “does not set any specific
time limitation for disclosure other than to state that disclosure
is required from: ‘. . . the time of notice and acceptance of
appointment until termination of the appointment.’”
Specifically with respect to Levitan, Judge Ouderkirk noted
it had previously been disclosed (in May and August 2018) and
quoted the explanation in his August 5, 2020 letter to DeJean
that, although his appointment in the case had been extended
after the earlier disclosures, he had not actually heard any
additional issues in the matter. Judge Ouderkirk described as
“beyond any reasonable inference” the suggestion there was
anything inappropriate about Spiegel’s request that the court
further extend that appointment. As for his recent involvement
in the Merade and Hankey cases, Judge Ouderkirk stated they
“were included in the July 24, 2020 supplemental disclosures
made promptly upon Petitioner’s request and discussed in the
August 5, 2020 reply to the July 27, 2020 inquiry by Petitioner’s
8
counsel. [Fn. omitted.] These disclosures comply with the
disclosure requirements of Canon 6D(5)(a) which does not set any
specific time limitation for disclosure other than to state that
disclosure is required from: ‘. . . the time of notice and acceptance
of appointment until termination of appointment.’ July 24, 2020
was certainly within the relevant time frame. Could these
disclosures have been made sooner? Clearly, they could have
been and were overlooked in the administrative process. When
brought to Judge Ouderkirk’s attention they were instantly
disclosed and the circumstances surrounding each case were
explained to Petitioner’s counsel in response to her request for
more information.” Judge Ouderkirk added, “Petitioner does not
explain how these two matters, Hankey and Merade, standing
alone without any more information would somehow cause an
impartial observer to disregard the consistent, voluminous,
overwhelming and ongoing disclosures made by Judge Ouderkirk
since the inception of the Jolie/Pitt case.” Judge Ouderkirk
concluded by stating, “I can and will remain impartial in this
action.”
6. The Superior Court’s Order Denying Disqualification
Pursuant to Code of Civil Procedure section 170.3,
subdivision (c)(5), 1 the Chief Justice, as chair of the Judicial
Council, selected Judge Larsh of the Orange County Superior
Court to hear and determine the question of disqualification. In
an order filed November 16, 2020, Judge Larsh denied
disqualification, ruling Jolie’s statement of disqualification was
untimely: “The disclosures in 2017 and 2018 put Petitioner on
notice that Judge Ouderkirk had a significant history of serving
1 Statutory references are to this code.
9
as a dispute neutral in cases in which Mr. Spiegel or his firm
served as counsel. By August 2018, Petitioner was aware of facts
that might cause her to reasonably entertain a doubt that Judge
Ouderkirk would be able to be impartial,” noting that, even after
those disclosures, the parties again twice stipulated to extend
Judge Ouderkirk’s appointment. Judge Larsh also ruled that the
2020 disclosures “did not substantially change from the 2018
disclosures. . . . None of these disclosures would cause a person
aware of the facts to reasonably entertain a doubt that Judge
Ouderkirk was unable to be impartial.” Judge Larsh also stated
the fact that DeJean practices in San Francisco and was unlikely
to retain Judge Ouderkirk for future cases was irrelevant.
7. Jolie’s Petition for Extraordinary Writ
On November 20, 2020 Jolie petitioned this court for a writ
of mandate, compelling the superior court to vacate its order and
to issue a new order disqualifying Judge Ouderkirk. (See § 170.3,
subd. (d) [determination of the question of the disqualification of
a judge “may be reviewed only by a writ of mandate from the
appropriate court of appeal”].) Jolie also requested an immediate
stay of proceedings in the child custody and visitation dispute,
which were then scheduled to begin on November 30, 2020. 2 Pitt
filed an opposition to the request for a stay 3 and an opposition to
the petition for extraordinary writ.
2 Judge Ouderkirk denied Jolie’s request to stay trial of the
custody matter during the pendency of the writ proceedings.
3 Although opposing Jolie’s request for a stay, in his return
to the order to show cause Pitt agreed with Jolie’s contention
that, if this court determines that Judge Ouderkirk is
disqualified, that disqualification is retroactive to August 7, 2020,
the date Jolie filed the statement of disqualification, and any
10
On December 9, 2020 we issued an order to show cause why
the relief Jolie requested should not be granted. We denied
Jolie’s request for a stay of proceedings before Judge Ouderkirk. 4
DISCUSSION
1. Governing Law
Article VI, section 21 of the California Constitution
authorizes the superior court to designate a member of the State
Bar of California, selected by the parties to a lawsuit, to serve as
a “temporary judge,” exercising full judicial powers in their case:
“On stipulation of the parties litigant the court may order the
cause to be tried by a temporary judge who is a member of the
State Bar, sworn and empowered to act until final determination
of the cause.” 5 Upon appointment, a temporary judge “must take
ruling by Judge Ouderkirk in the interim will be void ab initio, as
provided in section 170.4, subdivision (c)(1).
4 After issuance of our order to show cause, Judge Ouderkirk
presided at an extended evidentiary hearing on Pitt’s request for
a modified custody and visitation order. We deny Pitt’s motions
for judicial notice of the May 13, 2021 and June 29, 2021 rulings
issued by Judge Ouderkirk and his June 29, 2021 statement of
decision as not relevant to the issues before us.
5 Article VI, section 21 of the California Constitution does
not refer to a “privately compensated” temporary judge. That
term first appeared in California Rules of Court, former rules 244
and 880, effective July 1, 1993, adopted by the Judicial Council
based on recommendations to govern the conduct of privately
paid judges acting as temporary judges from the Advisory
Committee on Private Judges appointed in 1989 by Chief Justice
Malcolm M. Lucas, as revised by an Ad Hoc Committee of
Judicial Council members subsequently appointed by the Chief
Justice. (Judicial Council of Cal., Admin. Off. of Cts., Rep. on
11
Rules to Implement Recommendations of the Ad Hoc Committee
on Private Judges (1993) pp. 1-2.)
In its February 1993 report to the Judicial Council, the Ad Hoc
Committee explained its proposals “do not address one point
raised in comments that particularly troubled the committee.
Judge James Ford of the Sacramento County Superior Court
asserted that Penal Code section 94 prohibits a ‘judicial officer,’
including a temporary judge, from collecting a fee without
statutory authorization. While there is no statutory
authorization for fees for temporary judges, there is statutory
authorization for referees to collect fees [citation].” The
committee recommended the Judicial Council circulate for public
comment a further amendment to the rules relating to temporary
judges that would prohibit temporary judges from being paid by
the parties except when serving as a referee. Temporary judges
being paid by the court or serving without compensation would
not be affected by the proposed amendment. (Judicial Council of
Cal., Admin. Off. of Cts., Rep. on Rules to Implement
Recommendations of the Ad Hoc Committee on Private Judges,
supra, pp. 6-7.)
The proposed rule prohibiting payment of temporary judges by
the parties was not adopted. To the contrary, in response to the
question raised concerning whether privately compensating
temporary judges violated Penal Code section 94, the Legislature
amended that statute, effective January 1, 1994, to provide, “The
lawful compensation of a temporary judge shall be prescribed by
Judicial Council rule.” (Stats. 1993, ch. 909, § 13, p. 5106.)
Effective July 1, 1995 the Judicial Council added subdivision (g)
to former rule 244, providing, “Temporary judges shall serve
without compensation, unless the parties agree in writing to a
rate of compensation to be paid by the parties, and that rate shall
be allowed.” Current rule 2.832 now provides in similar
language, “A temporary judge selected by the parties may not be
compensated by the parties unless the parties agree in writing on
a rate of compensation that they will pay.”
12
and subscribe the oath of office and certify that he or she is aware
of and will comply with the applicable provisions of canon 6 of the
Code of Judicial Ethics and the California Rules of Court.” (Cal.
Rules of Court, rule 2.831(b).) 6
Pursuant to canon 6D(3)(a)(vii)(C), 7 a temporary judge
must “from the time of notice and acceptance of appointment
until termination of the appointment,” disqualify himself or
herself if, for any reason, “a person aware of the facts might
reasonably entertain a doubt that the temporary judge would be
able to be impartial.” This disqualification mandate is reinforced
by canon 6(D)(5)(a), which requires a temporary judge, “from the
time of notice and acceptance of appointment until termination of
the appointment,” to disclose in writing or on the record
“information that is reasonably relevant to the question of
disqualification under Canon 6(D)(3), including personal or
professional relationships known to the temporary judge . . . that
6 References to rules are to the California Rules of Court.
References to canons are to the California Code of Judicial
Ethics.
7 Canon 6D applies to a privately compensated temporary
judge appointed to serve as a judge pursuant to article VI,
section 21 of the California Constitution, a person serving as a
referee pursuant to Code of Civil Procedure sections 638 or 639
and court-appointed arbitrators. It does not apply to privately
compensated neutrals in contractual arbitrations, who are
separately governed by the California Rules of Court, Ethics
Standards for Neutral Arbitrators in Contractual Arbitration
adopted by the Judicial Council. (§ 1281.85, subd. (a); see
Roussos v. Roussos (2021) 60 Cal.App.5th 962, 971.)
For clarity, when discussing or quoting from canon 6, we
omit the references to referees and court-appointed arbitrators.
13
he or she or his or her law firm has had with a party, lawyer, or
law firm in the current proceeding, even though the temporary
judge . . . concludes that there is no actual basis for
disqualification.”
Rule 2.831(d), applicable specifically to temporary judges
requested by the parties pursuant to Article VI, section 21 of the
California Constitution, requires that matters subject to
disclosure to the parties under the Code of Judicial Ethics must
be disclosed no later than five days after designation as a
temporary judge or, as to matters not known at the time of
designation, “as soon as practicable thereafter.”
Rule 2.831(e) provides a temporary judge must disqualify
himself or herself as “required by law” and “as provided under
the Code of Judicial Ethics.” Neither the pertinent provisions of
the Code of Civil Procedure nor the Code of Judicial Ethics
creates an automatic or per se rule of disqualification for a
judge’s failure to make a required disclosure. (See, e.g., Wechsler
v. Superior Court (2014) 224 Cal.App.4th 384, 387 [judge not
disqualified for failing to disclose potentially disqualifying
information absent additional facts, even though disclosure
required under canon 3E(2)(a)]; see also Hayward v. Superior
Court (2016) 2 Cal.App.5th 10, 74 (dis. opn. of Richman, J.).)
Rather, the facts surrounding the failure to timely make a
required disclosure and the information ultimately disclosed
must be evaluated under section 170.1, subdivision (a)(6)(A)(iii),
which requires a judge, including a temporary judge, to disqualify
himself or herself if “[a] person aware of the facts might
reasonably entertain a doubt that the judge would be able to be
impartial,” and, for a temporary judge, under
canon 6D(3)(a)(vii)(C), which contains identical language.
14
“The standard for disqualification provided for in
subdivision (a)(6)(C) of section 170.1 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. ‘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.’” (United
Farmworkers of America v. Superior Court (1985) 170 Cal.App.3d
97, 104, fn. omitted; accord, Wechsler v. Superior Court, supra,
224 Cal.App.4th at p. 391 [“[t]he applicable disqualification
standard is an objective one: if a fully informed, reasonable
member of the public would fairly entertain doubts that the judge
is impartial, the judge should be disqualified”]; see People v.
Freeman (2010) 47 Cal.4th 993, 1000-1001 [the statutory
disqualification scheme in the Code of Civil Procedure “is not
solely concerned with the rights of the parties before the court but
is also ‘intended to ensure public confidence in the judiciary’”].)
“‘Impartiality’ entails the ‘absence of bias or prejudice in
favor of, or against, particular parties or classes of parties, as
15
well as maintenance of an open mind.’ [Citation.] In the context
of judicial recusal, ‘[p]otential bias and prejudice must clearly be
established by an objective standard.’” (Haworth v. Superior
Court (2010) 50 Cal.4th 372, 389 (Haworth); accord, People v.
Chatman (2006) 38 Cal.4th 344, 363 [“[p]otential bias and
prejudice must clearly be established by an objective standard”];
Wechsler v. Superior Court, supra, 224 Cal.App.4th at p. 391.)
2. Standard of Review
In People v. Alvarez (1996) 14 Cal.4th 155, rejecting a claim
by the appellant in a capital case that the trial judge had
personal knowledge of disputed evidentiary facts, a ground for
disqualification under section 170.1, subdivision (a)(1)(A), the
Supreme Court stated, “As a general matter, an appellate court
reviews a trial court’s ruling on a recusal motion for abuse of
discretion.” (Alvarez, at p. 237.) Pitt contends we are bound by
Alvarez and must apply an abuse of discretion standard in
reviewing the superior court’s order denying disqualification of
Judge Ouderkirk.
Despite the general statement in Alvarez, more recently in
Haworth, supra, 50 Cal.4th 372 the Supreme Court observed that
its decisions “have not fully resolved” the applicable standard of
review in judicial recusal cases involving the appearance of
partiality. (Id. at p. 383, fn. 8.) 8 The Haworth Court then held a
8 The full Haworth footnote states, “Because the rule for
disclosure by a neutral arbitrator under section 1281.9,
subdivision (a) is the same as the rule for disqualification of a
judge under section 170.1, subdivision (a)(6)(A)(iii), case law
applicable to judicial disqualification is potentially relevant to the
present case. Our decisions, however, have not fully resolved, in
the analogous context of judicial recusal, the issue of which
16
de novo standard of review should be used to determine in the
analogous context of private contractual arbitration whether an
arbitrator had failed to disclose information creating an
appearance of bias. (Id. at p. 383.)
As a threshold matter, the Supreme Court stated, the facts
were not in dispute. (Haworth v. Superior Court, supra,50 Cal.4th at p. 383.) Neither was the applicable law, making the
question a mixed one of law and fact. (Id. at p. 384.) “In most
instances,” the Court explained, “mixed questions of fact and law
are reviewed de novo—with some exceptions, such as when the
standard of review applies to a determination involving the
appearance of partiality. We stated in People v. Alvarez[, supra,]
14 Cal.4th [at p.] 237, that generally, ‘an appellate court reviews
a trial court’s ruling on a recusal motion for abuse of discretion.’
Alvarez, however, does not appear to have been cited by this court
or the Courts of Appeal on this point. An earlier case, People v.
Brown (1993) 6 Cal.4th 322, 336-337, has been cited for the
proposition that a trial court’s ruling on a motion to disqualify a
judge is reviewed de novo. (See Flier v. Superior Court (1994)
23 Cal.App.4th 165, 171.) Although our opinion in People v.
Brown does not express deference to the trial court’s ruling, it
does not explicitly set forth any standard of review. Some
appellate courts have stated, with minimal analysis, that the
question of whether a judge should have been disqualified
because of an appearance of partiality is a question of law,
reviewable de novo, where the facts are not in dispute. (See,
e.g., Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 319 [‘On
undisputed facts this is a question of law for independent
appellate review.’]; Sincavage v. Superior Court (1996)
42 Cal.App.4th 224, 230 [‘Where, as here, the underlying events
are not in dispute, disqualification on this ground becomes a
question of law which this court may determine.’].)” (Haworth,
supra, 50 Cal.4th at p. 383, fn. 8.)
17
applicable legal standard provides for a ‘“strictly factual test,
such as state of mind.”’ [Citation.] ‘“This is so because usually
the application of law to fact will require the consideration of
legal concepts and involve the exercise of judgment about the
values underlying legal principles.”’” (Id. at p. 385.) Using this
analysis, whether the disclosure at issue was required—that is,
whether the information would create an appearance of bias—
was properly reviewed de novo: “The applicable rule provides an
objective test by focusing on a hypothetical reasonable person’s
perception of bias. The question is not whether Judge Gordon
actually was biased or even whether he was likely to be
impartial; those questions involve a subjective test that
appropriately could be characterized as primarily factual. The
question here is how an objective, reasonable person would view
Judge Gordon’s ability to be impartial.” (Id. at pp. 385-386.)
The question before us likewise involves undisputed facts
and the identical governing legal standard that requires an
objective assessment of how a reasonable person would view
Judge Ouderkirk’s ability to be impartial—a mixed question of
fact and law. We properly review the issue de novo. (See
Wechsler v. Superior Court, supra, 224 Cal.App.4th at pp. 391-
392 [“[t]he 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”]; Briggs v. Superior Court (2001) 87 Cal.App.4th
312, 319; Flier v. Superior Court (1994) 23 Cal.App.4th 165, 171;
see also People v. Superior Court (Olivo) (2019) 36 Cal.App.5th
942, 947 [“[w]here the underlying material facts are not in
dispute, we review the trial court’s order denying a peremptory
challenge de novo”].)
18
Similarly, the question whether Jolie presented her
statement of disqualification “at the earliest practicable
opportunity after discovery of the facts constituting the ground
for 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 also subject to
de novo review. (See generally Sierra Club v. County of Fresno
(2018) 6 Cal.5th 502, 516 [“to the extent a mixed question
requires a determination whether statutory criteria were
satisfied, de novo review is appropriate; but to the extent factual
questions predominate, a more deferential standard is
warranted”]; Connerly v. State Personnel Bd. (2006) 37 Cal.4th
1169, 1175-1176 [when a controversy over whether a criterion
has been met presents a mixed question and the material facts
are largely undisputed, the issue is treated as a question of law
and reviewed de novo]; Jenkins v. County of Riverside (2006)
138 Cal.App.4th 593, 604 [“[q]uestions of statutory
interpretation, and the applicability of a statutory standard to
undisputed facts, present questions of law, which we review
de novo”].)
3. The Statement of Disqualification Was Timely Filed
Section 170.3, subdivision (c)(1), provides, if a judge who
should recuse himself or herself refuses to do so, any party may
file in superior court a written verified statement objecting to
continued proceedings before the judge. The subdivision further
provides, “The statement shall be presented at the earliest
practicable opportunity after discovery of the facts constituting
the ground for disqualification.”
A delay in seeking to disqualify a judge “constitutes
forfeiture or an implied waiver of the disqualification.”
19
(Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th
1332, 1337 [motion to disqualify judge for improperly
undertaking independent investigation of facts denied when
party was aware of misconduct but only raised issue after
adverse ruling in case]; see Hayward v. Superior Court, supra,2 Cal.App.5th at p. 49 [“parties can waive disqualification by
their conduct where they are aware of grounds for
disqualification but continue to participate in the proceedings
without raising the objection”].) However, as this court held in
the closely related context of the disclosure obligations of
privately compensated neutrals, “[a] party cannot waive a right
she does not know she has.” (Honeycutt v. JPMorgan Chase
Bank, N.A. (2018) 25 Cal.App.5th 909, 931 (Honeycutt).)
As discussed, in ruling Jolie’s August 7, 2020 statement of
disqualification was not timely filed, Judge Larsh found that
Judge Ouderkirk’s disclosures when first appointed in 2017 and
thereafter in May and August 2018 put Jolie on notice that
Judge Ouderkirk had a significant history of serving in cases in
which Spiegel or other lawyers from his firm represented one of
the parties. True, but history is different from current events.
Jolie first learned in late July 2020 that, in addition to
Judge Ouderkirk’s past professional relationships with Pitt’s
counsel, he had been engaged for two new matters—trial of a
custody matter in Merade in which Spiegel represented a party,
and a hearing on child support and fees in Hankey in which Kiley
was cocounsel for a party— as well as a continuing role in
Levitan after the case had apparently been settled. And Jolie
acquired this new information only because her counsel asked
whether Judge Ouderkirk had any new engagements to report,
20
not because Judge Ouderkirk had complied with his obligation
under the Code of Judicial Ethics to make the disclosures.
Jolie’s challenge to Judge Ouderkirk, as she has explained,
is not predicated on his past professional relationships with Pitt’s
counsel—as repeatedly pointed out, Judge Ouderkirk also had
been retained in matters in which Jolie’s original counsel
represented a party—but on the expansion of that relationship
while this case was before him, as well as his failure to disclose
those additional matters. Upon receiving this new information,
Jolie promptly sought disqualification of Judge Ouderkirk, first
asking him to recuse himself pursuant to canon 6D(3)(a)(vii)(C)
and then filing her verified statement of disqualification in
superior court. Jolie properly sought to disqualify
Judge Ouderkirk based on information first learned in late July
2020; she was entitled to have her challenge decided on its
merits.
4. Judge Ouderkirk Failed To Comply with His Continuing
Ethical Obligation To Disclose Professional
Relationships with the Parties or Their Counsel
As discussed, canon 6(D)(5)(a) requires a temporary judge
to disclose information reasonably relevant to the question of
disqualification, specifically including personal or professional
relationships with a party or lawyer in the current proceeding,
“from the time of notice and acceptance of appointment until
termination of the appointment.” The Code of Judicial Ethics
could not make any clearer that this is a continuing obligation.
New professional engagements to hear a case as a neutral or
temporary judge in which the lawyer for a party in a pending
case is also counsel of record in the new case must be disclosed.
21
In his verified answer to Jolie’s statement of
disqualification, Judge Ouderkirk did not dispute his
participation in the Merade and Hankey cases fell within the
mandatory disclosure requirements of canon 6. But he insisted
he did disclose his role in those two cases, even though he never
volunteered the information, revealing it only in answer to a
specific inquiry from Jolie’s counsel. Further, despite notifying
the parties months after disclosure was necessary, he claimed his
response was timely because the canon does not specify when a
disclosure must be made other than from the time of notice and
acceptance of appointment until termination of appointment.
Judge Ouderkirk asserts, “July 24, 2020 was certainly within the
relevant time frame”—meaning, apparently, that so long as he
disclosed those matters before his appointment ended, he
satisfied canon 6.
Judge Ouderkirk’s narrow view of his ethical disclosure
obligations ignores the requirements of rule 2.831(d), which he
acknowledged when appointed and repeatedly certified he would
follow. 9 Rule 2.831(d) provides, “[N]o later than five days after
designation as a temporary judge or, if the temporary judge is not
aware . . . of a matter subject to disclosure at that time, as soon
9 As discussed, rule 2.831(b) requires a temporary judge,
before proceeding in a case, to certify that he or she is aware of
and will comply with applicable provisions of canon 6 and the
Rules of Court. In his verified answer Judge Ouderkirk
acknowledged that, as part of the required process for his
appointment, on January 6, 2017 he signed a consent to act as
temporary judge and certified he would comply with the
applicable provisions of canon 6 and with rule 2.831, a
certification repeated with each successive appointment in the
case.
22
as practicable thereafter, a temporary judge must disclose to the
parties any matter subject to disclosure under the Code of
Judicial Ethics.” “As soon as practicable” certainly does not mean
at any time during the temporary judge’s tenure, as Judge
Ouderkirk suggested; nor does it mean promptly when (if) asked
or even periodically, such as when new counsel makes an
appearance in the case. Rather, the temporary judge’s obligation
under rule 2.831 and canon 6 is to disclose those matters that
must be disclosed as quickly as possible and practicable, that is,
taking into account the circumstances of a specific situation. For
example, Judge Ouderkirk explained his week-plus delay in
responding to DeJean’s July 27, 2020 email requesting details of
his new engagements with Pitt’s counsel was due to his being
away on vacation and then conducting a one-day hearing on an
unrelated matter. Judge Ouderkirk’s answer to DeJean’s inquiry
qualifies as having been made as soon as practicable. Disclosure
in late July 2020 of participation in matters involving Pitt’s
counsel that began no later than 2019 and continued into 2020
does not.
As the court of appeal explained in Benjamin, Weill &
Mazer v. Kors (2011) 195 Cal.App.4th 40 in the analytically
similar context of privately compensated dispute resolution
neutrals, disclosure of ongoing professional relationships with a
party or counsel appearing in the proceeding is intended “to
diminish the advantage steady customers have over one-time
customers, and in that manner protect the integrity of private
arbitration.” (Id. at p. 69.) That rationale is at least equally
applicable to use of privately compensated temporary judges.
Indeed, because a temporary judge, unlike a private arbitrator,
performs public judicial functions, protecting the integrity of the
23
proceedings by promptly making mandatory disclosures is even
more important. (See canon 6(D)(1) [specifically requiring a
temporary judge to comply, inter alia, with canon 1 (“[a] judge
shall uphold the integrity and independence of the judiciary”) and
canon 2A (“[a] judge shall respect and comply with the law and
shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary”)]; see also
Hayward v. Superior Court, supra, 2 Cal.App.5th at p. 52
[“[P]rivate judges are not insulated in the way public judges are:
Unlike public judges, they often have continuing and reciprocal
business relationships with the lawyers who appear before them.
Because private judges operate within a system in which
potential conflicts are likely, adherence to requirements for
written or on the record disclosure and waiver is imperative”].)
Canon 6D(5)(a) expressly states that information
concerning personal or professional relationships with a lawyer
in the current proceeding “is reasonably relevant to the question
of disqualification under Canon 6D(3).” As discussed,
canon 6D(3) provides that disqualification can occur at any time
from the time of notice and acceptance of appointment as a
temporary judge until termination of the appointment. That is,
disqualification of a temporary judge who appears unable to be
impartial is a continuing right of a party, not simply at the time
of the initial appointment. Ongoing disclosure on a timely basis
is essential for that right to be meaningful.
Judge Ouderkirk’s attempt to excuse his ethical lapse by
asserting in his verified answer that the Merade and Hankey
cases “were overlooked in the administrative process” falls short
on several counts. First, to the extent Judge Ouderkirk seeks to
lay blame on ARC, his ADR provider, or its administrative staff,
24
it was he who was appointed a temporary judge and assumed the
ethical obligations associated with that role. No more than an
attorney can excuse his or her misconduct by blaming an
assistant, Judge Ouderkirk must accept responsibility for the
ethical violation that occurred here. (See canon 6D(2)(a)
[a temporary judge must comply with canon 3C(1) requiring the
discharge of administrative responsibilities without bias and with
competence]; cf. Layton v. State Bar (1990) 50 Cal.3d 889, 900
[an attorney cannot escape responsibility for his breach of ethics
by blaming his secretary]; Honeycutt, supra, 25 Cal.App.5th at
p. 929, fn. 12.)
Second, no database search, sophisticated record
compilation or other administrative action was required for
Judge Ouderkirk to become aware of his participation in two new
matters in which Pitt’s counsel represented one of the parties.
He presided at hearings where these lawyers appeared, either in
person or virtually. While he may have overlooked his obligation
to disclose this information to Jolie’s counsel, he had the
information at hand. 10
Finally, the history of disclosures by Judge Ouderkirk and
ARC in this case belies the suggestion the Merade and Hankey
cases or the extension of Judge Ouderkirk’s appointment in
Levitan would have been disclosed but for somehow being
inadvertently overlooked. Judge Ouderkirk’s and ARC’s practice
10 In fact, if Judge Ouderkirk made the required initial
disclosures in Merade before his engagement in that matter in
April 2019, he would have advised counsel he was serving as
temporary judge in the Jolie/Pitt case in which Spiegel
represented Pitt. All he needed to do was simultaneously notify
the Jolie/Pitt counsel of his role in Merade.
25
was to provide disclosures at the initiation of the engagement
and when new counsel was associated or substituted into the
case, as Pitt advised Judge Larsh in a brief filed in opposition to
Jolie’s statement of disqualification, not whenever a new event
occurred requiring disclosure under canon 6. Simply put, that
practice, whatever its purported justification, does not comply
with a temporary judge’s ethical obligations.
5. A Person Aware of the Facts Might Reasonably Entertain
a Doubt that Judge Ouderkirk Would Be Impartial
As Judge Larsh found, by August 30, 2018, after DeJean
had replaced Wasser as Jolie’s lead counsel and Judge Ouderkirk
sent a supplemental disclosure letter, Jolie was on notice that
Judge Ouderkirk had a significant history of serving (and being
privately compensated) in cases in which Spiegel or other lawyers
from his firm represented one of the parties. The reports from
Judge Ouderkirk and ARC indicated Judge Ouderkirk had
participated in six or seven matters in 2012 and 2013 and
another four or five in 2016 and 2017. 11 Neither ARC’s nor
Judge Ouderkirk’s August 2018 report identified any still-active
matter with the possible exception of Levitan, although
Judge Ouderkirk himself believed that matter had concluded. 12 ,
11 Because several of Judge Ouderkirk’s cases apparently
continued and were included more than once in the various
reports, counting cases involves a bit of a subjective element. The
precise number of completed cases in which Spiegel or his firm
appeared before Judge Ouderkirk prior to August 2018, however,
is not material.
12 The August 27, 2018 disclosure report from ARC identified
the Levitan matter with an October 2018 date and the notation
“Set.” The parties dispute whether “Set” was reasonably
interpreted by Jolie’s counsel as meaning the case had settled.
26
Jolie also knew her original counsel had previously been involved
in two or three matters in which Judge Ouderkirk had served as
a privately compensated temporary judge. What she did not
know was, in the period after entry in November 2018 of the
parties’ stipulated custody judgment and before Pitt’s June 2020
formal request for an order modifying that judgment—
modifications adamantly opposed by Jolie—Pitt’s counsel had
been engaged in two contested hearings in which Judge
Ouderkirk served as a privately compensated temporary judge,
each of which had continued into 2020, nor did she know Pitt’s
counsel in that same period had advocated in court, over
objection, for an extension of Judge Ouderkirk’s designation as a
privately compensated temporary judge in a third matter
(Levitan).
a. Honeycutt does not control
Did Judge Ouderkirk’s participation as a temporary judge
in Merade and Hankey and his failure to voluntarily disclose his
role in those cases as required by canon 6 and rule 2.831(d),
together with Spiegel’s undisclosed activity in Levitan, require
his disqualification? Relying principally on the holding and
analysis in Honeycutt, supra, 25 Cal.App.5th 909, Jolie insists the
answer must unequivocally be yes.
In Honeycutt this court vacated an arbitration award
because the arbitrator had failed to make disclosures required by
However, as discussed, in his August 5, 2020 response to
DeJean’s July 27, 2020 letter asking for details about the
additional cases ARC had identified, Judge Ouderkirk stated
Levitan had, in fact, been reported to him as settled. His
appointment had thereafter been extended in 2019 with the
intention he would hear a reserved financial issue.
27
the California Rules of Court, Ethics Standards for Neutral
Arbitrators in Contractual Arbitration (Ethics Standards) and
included a stern admonition: “The arbitrator disclosure rules are
strict and unforgiving. And for good reason. Although dispute
resolution provider organizations may be in the business of
justice, they are still in business. The public deserves and needs
to know that the system of private justice that has taken over
large portions of California law produces fair and just results
from neutral decision makers.” (Honeycutt, supra,
25 Cal.App.5th at p. 931.) Arguing the policies underlying
mandatory disclosure requirements for dispute resolution
neutrals, and specifically those disclosures intended to address
the repeat-player problem, should fully apply to privately
compensated temporary judges, Jolie asserts the rules and
standards for disqualifying “public-actor, party-paid temporary
Superior Court judges cannot be less stringent than those for
disqualifying purely private-actor arbitrators.”
We agree with the major premise of Jolie’s argument.
Ethical breaches by a privately compensated temporary judge
serving as a public official are far more disquieting than similar
violations by private arbitrators. But Jolie’s reliance on
Honeycutt overlooks a significant difference between the manner
in which the Ethics Standards operate and the requirements and
consequences of breaches of canon 6.
Standard 12 of the Ethics Standards, “[d]uties and
limitations regarding future professional relationships and
employment,” which was at issue in Honeycutt, provides in
consumer arbitrations (defined in standard 2(d) and (e)), if the
arbitrator discloses at the outset that he or she will entertain
offers of employment or new professional relationships from a
28
party or a lawyer for a party in the pending case and also states
(and complies with the statement) that he or she will inform the
parties of any such offer and the subsequent acceptance of the
offer and the parties agree to proceed with that arbitrator, then
acceptance of a new engagement, by itself, is not grounds for
disqualification of the arbitrator under section 170.1 and does not
constitute corruption in, or misconduct by, the arbitrator. (Ethics
Standards, std. 12(d)(3)(A) & (C).) If, however, the arbitrator
fails to fully inform the parties as required under the Ethics
Standards, as occurred in Honeycutt, that failure is a sufficient
ground for disqualification of the arbitrator under standard 10(a)
and establishes a mandatory basis for vacating the arbitration
award. (§ 1286.2, subd. (a)(6)(A); Honeycutt, supra,
25 Cal.App.5th at pp. 924-925.) In nonconsumer arbitrations, in
contrast, if the arbitrator states he or she will entertain offers of
employment or new professional relationships and he or she will
not inform the parties of offers or acceptance of offers, no further
disclosure of subsequent offers need be made. (Ethics Standards,
std. 12(d).)
The provisions of standard 12 (and corresponding changes
to standard 7), as amended effective July 1, 2014, distinguishing
consumer and nonconsumer arbitrations and protecting neutrals
who fully comply with the standard’s disclosure requirements
represented a middle ground among the competing views of the
various stakeholders involved in the private dispute resolution
industry. (See Judicial Council of Cal., Rep. and
Recommendations from Civil and Small Claims Advisory Com.
(Sept. 19, 2013) pp. 16-19, 25.) Privately compensated temporary
judges do not share the benefits or burdens of that compromise:
They do not have the option available to arbitrators in
29
nonconsumer arbitrations of simply stating they will not disclose
future offers involving a party or a lawyer for a party, nor will
timely disclosure of offers and acceptances of subsequent
professional relationships involving the parties or lawyers before
them insulate a temporary judge from disqualification based on
perceived bias. Canon 6 makes such disclosures mandatory in all
instances, and a temporary judge is subject to challenge under
canon 6D(3) even if a new professional relationship has been
disclosed in a timely manner.
Likewise, there is no provision in the Code of Civil
Procedure, the Rules of Court or canon 6 that parallels Ethics
Standards, standard 10(a), which provides an arbitrator’s failure
to comply with his or her disclosure obligations is a ground for
disqualification, or section 1286.2, subdivision (a)(6)(A), which
mandates the court vacate an arbitration award if the arbitrator
“failed to disclose within the time required for disclosure a
ground for disqualification of which the arbitrator was then
aware.” Rather, a temporary judge’s acceptance of new
professional relationships and his or her failure to make required
disclosures must be judged by the might-reasonably-entertain-a-
doubt standard of section 170.1, subdivision (a)(6)(A)(iii), and
canon 6D(3)(a)(vii)(C). Whether disqualification is required in
any particular instance in which the temporary judge fails to
make mandatory disclosures, therefore, must be evaluated in
light of the circumstances of that case, not on the basis of the
“strict and unforgiving” provisions we enforced in Honeycutt. 13
13 We perceive no justification for stricter enforcement of
disclosure requirements for a private arbitrator than for a
privately compensated temporary judge, who serves in a public
capacity as a public official. (Compare In re Marriage of Assemi
30
b. A reasonable doubt as to impartiality exists
Although the strict rules we applied in Honeycutt do not
provide the basis for disqualifying Judge Ouderkirk, his
disqualification is nonetheless required under
section 170.1(a)(6)(A)(iii) and canon 6D(3)(a)(vii)(C): Advised of
Judge Ouderkirk’s involvement in two previously undisclosed
matters in 2019/2020 in which Pitt’s counsel represented one of
the parties, thereby renewing and expanding a relationship with
lawyers who had in the past attained the status of significant
repeat-players, in conjunction with Judge Ouderkirk’s failure to
voluntarily disclose those matters to Jolie and her new lawyer,
who had no prior professional relationship with the judge, the
person on the street might reasonably entertain a doubt as to
Judge Ouderkirk’s ability, consciously or subconsciously, to remain
impartial in the upcoming, hotly contested custody dispute.
Indeed, Pitt’s counsel’s advocacy—over objection—for the
extension of Judge Ouderkirk’s appointment in Levitan and his
request for, and Judge Ouderkirk’s acceptance of, a new
(1994) 7 Cal.4th 896, 908 [“[o]nce a temporary judge has taken an
oath of office, he or she has the same authority as a regular judge
[citation], basically is bound by the same rules of evidence and
procedures as those applicable in superior court trials, and is
empowered to render an appealable judgment in the same
manner as a regular judge”] with Richey v. AutoNation, Inc.
(2015) 60 Cal.4th 909, 916 [“‘the decision to arbitrate grievances
evinces the parties’ intent to bypass the judicial system’”].) We
urge the Judicial Council to consider adopting a rule of court
similar to the provisions of Ethics Standards, standard 10(a),
that mandate disqualification of a privately compensated
temporary judge who has violated his or her disclosure
obligations under canon 6 and rule 2.831(d).
31
appointment in Merade in the months leading up to an effort by
Pitt to modify the parties’ stipulated custody judgment, even
without considering Judge Ouderkirk’s failure to disclose, create a
level of discomfort that might justify disqualification. 14 When
coupled with Judge Ouderkirk’s breach of his ethical obligation to
timely disclose the new professional relationships in 2019 and
2020, the broad standard of those provisions—“might reasonably
entertain a doubt”—has certainly been satisfied. 15 (See Wechsler
v. Superior Court, supra, 224 Cal.App.4th at p. 390 [“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
14 Judge Ouderkirk and Pitt attempt to minimize the
significance of Judge Ouderkirk’s failure to timely disclose his
designation as the privately compensated temporary judge in
Merade and the extension of his appointment in Levitan by
explaining the first matter only involved “a few hours” of Judge
Ouderkirk’s time and the postjudgment issue in the second was
never presented to him. However, as this case demonstrates,
family law matters often have a long life after the parties and the
family law judge believe everything has been resolved. The
designation of a privately compensated temporary judge, even if
initially only intended for a limited purpose, creates the
opportunity for an ongoing stream of business. Accordingly, it is
the fact of the appointment or its extension that is significant for
purposes of assessing whether an appearance of bias might have
been created, not the number of hours logged to date.
15 Judge Larsh, in denying Jolie’s statement of
disqualification, did not consider Judge Ouderkirk’s breach of his
obligation to make timely disclosures as a factor in evaluating
whether a person aware of all the facts might reasonably
entertain a doubt as to Judge Ouderkirk’s ability to be impartial.
32
[citation], which may be irreparably harmed if a case is allowed to
proceed before a judge who appears to be tainted [citation]. A
party has the right to an objective decision maker and to a decision
maker who appears to be fair and impartial,” internal quotation
marks omitted]; see also People v. Freeman, supra, 47 Cal.4th at
pp. 1000-1001 [explaining that a statutory disqualification scheme
is intended to ensure public confidence in the judiciary].)
In coming to our conclusion regarding the possibility of
reasonable doubt as to Judge Ouderkirk’s ability to be impartial,
we do not believe it is irrelevant that Jolie is now represented by
someone who is not a repeat-player in Judge Ouderkirk’s court.
Certainly, a change in counsel will not vitiate prior consent given
after proper disclosures. But new facts suggesting a ground for
disqualification must be evaluated in light of the circumstances
then existing. That only one side in a case is represented by
counsel who regularly uses the services of a privately compensated
judge is one of the facts of which the hypothetical reasonable
person would be aware in assessing whether that judge appears to
be biased.
c. Pitt’s contrary arguments fail
None of Pitt’s arguments that a reasonable person would not
have cause to doubt Judge Ouderkirk’s impartiality withstands
scrutiny. First, Pitt contends Jolie’s challenge to Judge Ouderkirk
is impermissibly predicated on a “numerosity analysis” rejected by
the court of appeal in Dornbirer v. Kaiser Foundation Health Plan,
Inc. (2008) 166 Cal.App.4th 831 (Dornbirer). When the parties
engaged Judge Ouderkirk in January 2017, Pitt explains, Jolie
and her counsel knew, based on disclosures at that time, that
Spiegel had in the past retained Judge Ouderkirk once or twice a
year and that one additional matter was anticipated. Several
33
more matters over which Judge Ouderkirk presided and in which
Pitt’s counsel appeared as counsel of record were subsequently
disclosed in 2018. Against this background, Pitt argues an
increase by two in the number of cases involving his counsel in
which Judge Ouderkirk served as a temporary judge, as revealed
in July 2020, is “both unsurprising and immaterial.”
Pitt’s argument is doubly flawed. First, Dornbirer (a case
involving a private arbitrator, not a temporary judge) addressed
waiver, not whether a subsequent disclosure of new professional
relationships between the neutral and a party was material.
Dornbirer argued the arbitrator’s initial disclosure did not clearly
reflect how many times he had served in matters in which
Kaiser, the opposing party, had been involved. (Dornbirer, supra,
166 Cal.App.4th at p. 836.) The court of appeal affirmed the
superior court’s denial of Dornbirer’s petition to vacate the
arbitration award in favor of Kaiser, pointing out that the
arbitrator’s initial disclosure letter arguably identified all the
prior matters involving Kaiser (id. at p. 841), 16 and explaining,
even if the letter “may be ambiguous with regard to the precise
number of cases he had previously arbitrated in which Kaiser
was a party, the disclosure was sufficient to put Dornbirer on
notice that Adelman had served as an arbitrator in a large
16 The letter disclosed 15 prior arbitrations involving the law
firm that was representing Kaiser in Dornbirer’s case and “eleven
other matters involving Kaiser.” (Dornbirer, supra,
166 Cal.App.4th at p. 840.) Dornbirer argued the separation into
two categories implied the 15 matters involving the law firm did
not involve Kaiser. The court of appeal stated the letter “can just
as easily be read as disclosing that all 26 arbitrations involved
Kaiser,” emphasizing the arbitrator’s use of the word “other.” (Id.
at p. 841.)
34
number of such cases.” (Ibid.) For purposes of deciding whether
to object to the arbitrator at the outset of the proceeding, the
court held, the difference between 11 prior matters and 26 “would
not be sufficiently material to the issue of the arbitrator’s
impartiality to render the disclosure fatally defective under the
statute.” (Ibid.) Dornbirer’s remedy was to seek to disqualify the
arbitrator for an appearance of bias based on the information she
had before the arbitration commenced, not after the arbitration
was over. (See Honeycutt, supra, 25 Cal.App.5th at p. 926 [citing
Dornbirer for the principle a claimant waives the right to
disqualify the arbitrator for inadequate initial disclosures by
consenting to proceed with the arbitration].)
Second, it may be immaterial for purposes of a party’s
decision whether to stipulate to a particular temporary judge that
the initial disclosure report states he or she was retained in
10 prior cases in which one of the parties’ counsel was involved
when, in fact, there were 12. But the cumulative effect of
potentially disqualifying events sometimes will matter. That is
the very purpose for requiring continuing disclosures.
(Cf. § 170.4, subd. (c)(3) [authorizing a second statement of
disqualification against a judge when based on facts suggesting
new grounds for disqualification first learned of, or that arose
after, the first statement was filed].) 17 Here, Jolie’s challenge to
Judge Ouderkirk was not predicated on an inaccurate description
of his history of working together with Pitt’s counsel, but on just-
17 As discussed, unlike the arbitrator in a consumer
arbitration who is not subject to disqualification based solely on
the acceptance of new professional relationships with a party or
lawyer for a party, provided the arbitrator has made all required
disclosures, a temporary judge enjoys no such immunity.
35
acquired information that he continued to be compensated in
newly disclosed cases involving Pitt’s counsel while the Jolie/Pitt
matter was pending. That is not simply the difference between
10 or 12, as Pitt would have it, but between a history of past
relationships and an inventory of current ones.
As for Judge Ouderkirk’s failure to disclose the Merade and
Hankey matters as required by canon 6 and rule 2.831(d), Pitt
attempts to dismiss its significance in assessing the appearance
of bias by arguing Spiegel and Wasser were aware that
Judge Ouderkirk did not promptly disclose his retention in
matters in which they were involved. Pitt points out that Judge
Ouderkirk first disclosed the Goldman case, in which one of
Wasser’s partners represented a party, in May 2018 although it
began in January 2018. And the 2016 “D-13” matter in which
both Spiegel and Wasser were counsel was omitted from the
January 2017 disclosures and not identified until May 2018 when
the association of new counsel triggered the supplemental
disclosure report.
We decline to embrace such a cavalier approach to a
temporary judge’s violations of canon 6. That lawyers familiar
with a particular judge may tolerate his or her ethical lapses—for
example, a regular practice of engaging in prohibited ex parte
communications—should not prevent a new lawyer who has
substituted into the case from objecting when a new violation
occurs. Judge Ouderkirk’s continuing ethical obligation to make
required disclosures of professional relationships with the parties
or lawyers appearing before him under canon 6D(5)(a) is no less
significant than his obligation to avoid ex parte communications
as specified in canons 3B(7) and 6D(2)(a); and Jolie’s new counsel,
36
having learned of a new violation, was entitled to advance that as
part of the grounds for Judge Ouderkirk’s disqualification.
We emphasize the issue here is not whether DeJean could
seek to disqualify Judge Ouderkirk on Jolie’s behalf based on
delayed disclosures that had occurred while Wasser was
representing Jolie. Nor is it even whether Wasser, having failed
to complain about belated disclosures in the past, would somehow
be estopped from deciding “enough,” and asserting yet another,
new breach of canon 6 as a ground for disqualification if she were
still representing Jolie. Instead, the sole question we confront is
whether, because Spiegel and Wasser apparently accepted
Judge Ouderkirk’s indifference to his obligation to make timely
disclosures of professional relationships with the parties and
their lawyers who appear before him, Judge Ouderkirk enjoys
carte blanche to continue to violate his ethical responsibilities.
He does not.
Moreover, the ethical violation Jolie contends creates doubt
as to Judge Ouderkirk’s impartiality is his failure to voluntarily
disclose the new matters at all, not simply a delay in disclosure,
as occurred in the instances Pitt cites. Nothing in the record
suggests Jolie’s prior counsel or Jolie herself previously approved
of similar nondisclosures.
In sum, Judge Ouderkirk’s ethical breach, considered
together with the information disclosed concerning his recent
professional relationships with Pitt’s counsel, might cause an
objective person, aware of all the facts, reasonably to entertain a
doubt as to the judge’s ability to be impartial. Disqualification is
required.
37
DISPOSITION
Let a peremptory writ of mandate issue directing the
superior court to vacate its November 16, 2020 order denying
Jolie’s statement of disqualification and to make a new order
disqualifying Judge Ouderkirk. The parties are to bear their own
costs in this proceeding.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
38
SEGAL, J., Concurring.
I agree entirely with the opinion of the court. I write
separately to express my concern that the following three
propositions are currently the law in California: (1) Temporary
judges are judges; (2) Judges cannot be privately compensated;
(3) Temporary judges can be privately compensated. One of these
statements must be wrong. I believe it is (3).
Unlike arbitrators and referees, “[t]emporary judges have
broad powers substantially comparable to those of . . . sitting
judges.” (Hayward v. Superior Court (2016) 2 Cal.App.5th 10,
46.) “‘[W]hen acting,’” a temporary judge “‘is acting for the
superior court,’” and a temporary judge’s “‘judgments and orders
. . . are entitled to the same presumption of regularity as a court
with a regular judge presiding.’” (Estate of Kent (1936) 6 Cal.2d
154, 163; see In re Marriage of Assemi (1994) 7 Cal.4th 896, 908
[“Once a temporary judge has taken an oath of office, he or she
has the same authority as a regular judge [citation], basically is
bound by the same rules of evidence and procedures as those
applicable in superior court trials, and is empowered to render an
appealable judgment in the same manner as a regular judge.”];
Kajima Engineering and Construction, Inc. v. Pacific Bell (2002)
103 Cal.App.4th 1397, 1401 [“In contrast to the circumscribed
authority of a referee, a temporary judge has broad powers,”
including “‘the power to render a judgment which is appealable in
the same manner as one rendered by a constitutional judge.’”];
Knight et al., Cal. Practice Guide: Alternative Dispute Resolution
(The Rutter Group 2020) ¶ 6:58 [a “temporary judge has all the
powers of a sitting judge in the proceeding before the court”].)
Temporary judges, during the term of their appointment, are
superior court judges, just like regular, sitting judges.
Parties appearing before a regular, sitting judge cannot pay
the judge for adjudicating their case. This is true even if the
parties agree to compensate the judge, and even if they agree
each side will pay the judge an equal amount. (See In re
Campbell (D.C. 1987) 522 A.2d 892, 897 [“for judges to accept
money from litigants in their courts, even though they in fact do
nothing to favor those litigants, strikes at the core of the
impartiality demanded of judges”], adopting the recommendation
of a board of professional responsibility.) For example, parties to
a case in superior court before a regular, sitting judge cannot
privately compensate the judge to obtain benefits or advantages
for their case—such as calendar preference, priority in obtaining
hearing dates for motions, permission to file documents under
seal that otherwise would not qualify for sealing under California
Rules of Court, rule 2.550(d), 1 or additional days for trial—
regardless of the parties’ willingness to contribute equally to the
judge’s additional compensation. No one would think of doing
such a thing. Indeed, it is a misdemeanor for any judge to ask for
or receive “any emolument, gratuity, or reward, or any promise
thereof, except such as may be authorized by law, for doing any
official act.” (Pen. Code, § 94.) Yet the California Rules of Court
currently allow temporary judges to receive compensation from
parties who appear before them, even though temporary judges
are, well, judges.
1 Under California Rules of Court, rule 2.835(a), a motion or
application to seal records must be filed with the court and
“heard by the trial court judge to whom the case is assigned or, if
the case has not been assigned, by the presiding judge or his or
her designee,” not by the temporary judge.
2
It wasn’t always this way. As the court explains (see
maj. opn. ante, at p. 11, fn. 5), when the Judicial Council
proposed rules that recognized such a thing as a “privately
compensated temporary judge,” several sitting judges responded
with comments. Judge Robert H. O’Brien of the Los Angeles
County Superior Court wrote that “joint operation” of the court
“with private enterprise is an improper commingling of the
[judicial] branch of government with private judging associations
or individual private judges.” On the issue of temporary judges,
Judge O’Brien pointed out that article VI, section 21 of the
California Constitution is not “a constitutional recognition of a
public/private judging system.” 2 (Judicial Council of Cal., Admin.
Off. of Cts., Rep. on Rules to Implement Recommendations of the
Ad Hoc Committee on Private Judges (1992) (1992 Judicial
Council Report), pp. 4, 29, 32, letter from Judge Robert H.
O’Brien, July 17, 1992.)
Judge James T. Ford of the Sacramento County Superior
Court wrote that privately compensating temporary judging was
probably criminal. “Penal Code section 94 bars judicial officers
from accepting gratuities for performing public acts. Judges pro
tempore [i.e., temporary judges] have identical powers as sitting
judges, and their decisions are those of the court without any
further intervention by sitting judges. Accordingly, they must be
deemed judicial officers within the meaning of the section.”
Judge Ford also wrote that privately compensating temporary
judges was unethical under the California Code of Judicial
Ethics. Citing former canon 5C(1), now canon 4D(1)(b), which
2 Indeed, as the court points out (see maj. opn. ante, at p. 11,
fn. 5), the California Constitution does not authorize privately
compensated temporary judges.
3
currently states a judge “shall not engage in financial and
business dealings” that “involve the judge in frequent
transactions or continuing business relationships with lawyers or
other persons likely to appear before the court on which the judge
serves,” 3 Judge Ford wrote: “While clearly not adopted with this
recent phenomenon in mind, the Code stands for an important
principle: justice and money do not mix. Judging is not in any
way a private function; it is a quintessential public function, and
should be administered without regard to compensation of the
judge.” Judge Ford concluded by asking the Judicial Council not
to authorize privately compensated temporary judges: “I urge the
judiciary to recognize that privately compensating judges pro
tempore is illegal and pernicious. We are not for sale, nor is the
product of our labor.” (1992 Judicial Council Report, pp. 4, 25,
27, letter from Judge James T. Ford, Aug. 20, 1992.)
As the court further explains (see maj. opn. ante, at p. 11,
fn. 5), the ad hoc committee appointed to review comments like
those of Judge O’Brien and Judge Ford, and to suggest revisions
to the proposed rules, had a solution to the problem. The
committee proposed allowing temporary judges to be “paid by the
court” or to work “pro bono,” but prohibiting them from receiving
private compensation except when “serving as referees”—i.e.,
except when serving without the power and authority of a
regular, sitting judge. (Judicial Council of Cal., Admin. Off. of
Cts., Rep. on Rules to Implement Recommendations of the Ad
Hoc Committee on Private Judges (1993), p. 7.)
3 The Advisory Committee Commentary to canon 4D(1)
makes clear that this prohibition applies to “persons likely to
appear either before the judge personally or before other judges
on the judge’s court.”
4
Another solution, however, was found. As the court
explains, the Legislature added the following sentence to Penal
Code section 94: “The lawful compensation of a temporary judge
shall be prescribed by Judicial Council rule.” That this
amendment was designed to respond to the concern raised by
Judge Ford is clear from its legislative history: “Compensation
for temporary judges. Penal Code Section 94 (PC 94) can be read
to prohibit judicial officers, including temporary judges, from
collecting a fee for their official services without specific statutory
authorization. A judicial officer who violates this prohibition is
guilty of a misdemeanor. [¶] As a practical matter, however,
parties involved in a dispute may choose to have a temporary
judge (e.g., a retired judge) assist them in resolving their dispute.
These temporary judges will agree to provide the requested
service for a fee to be paid by the parties. Because there is no
statutory authorization for temporary judges to collect these fees,
these arrangements may be in violation of PC 94. [¶] This bill
provides that it will be lawful [for] temporary judges to be
compensated according to prescribed Judicial Council rule.”
(Assem. Com. on Judiciary, Analysis of Sen. Bill No. 15
(1993-1994 Reg. Sess.) Aug. 25, 1993, p. 2.)
The Judicial Council subsequently enacted a rule of court
that ultimately became California Rule of Court, rule 2.832. The
current version of the rule does not take a position on the
propriety of privately compensating a temporary judge or even
require the parties to contribute equally to the temporary judge’s
compensation. The rule provides only that a temporary judge
may not be privately compensated by the parties unless they
agree in writing on the rate of compensation.
5
But just because it is no longer criminal for a temporary
judge to receive compensation from private parties doesn’t mean
it’s a good idea. The Legislature directed the Judicial Council to
prescribe rules governing compensation of temporary judges. 4 I
believe the Judicial Council should adopt the rule its ad hoc
committee recommended in 1993: Temporary judges may be paid
by the court, but may not be privately compensated except when
serving as court-appointed referees. The Judicial Council created
the term “privately compensated temporary judge,” or at least
approved the concept. In my view, it is time for the Judicial
Council to reconsider that decision. 5
SEGAL, J.
4 Judge O’Brien, in his comments to the original proposed
rule, had his doubts about whether the Judicial Council was the
right entity to prescribe rules for compensating temporary
judges. He thought “the promulgation of rules implementing”
private judging “should not include judges. Judges have a
conflict of interest in considering how the judiciary should
approach private judging . . . . [V]irtually all sitting judges are in
favor of private judging . . . because they see that it will
personally benefit them when they retire. . . . Policy decisions on
this issue should be made either by the Supreme Court or the
Legislature.” (1992 Judicial Council Report, pp. 30-31, letter
from Judge Robert H. O’Brien, July 17, 1992.)
5 Of course, my view does not apply to decisionmakers like
arbitrators, referees, special masters, and court-appointed
receivers. They are not, and do not purport to be, judges.
Temporary judges are judges. And that makes all the difference.
6