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JAN 1 9 2010

*; A- CLARKe, exECUTilf, OFFICER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

GARY KURTZ,

Plaintiff,

v.

A. J. WEBERMAN

Defendant.

CASE NO. LC084486

ORDER STRIKING STATEMENT

OF DISQUALIFICATION

On January 12, 2010 Defendant filed a pleading captioned as a "Peremptory Challenge."

Insofar as Defendant may have intended the document to be a motion to disqualify under section

170.6 of the Code of Civil Procedure, it is untimely and denied. Moreover, "no party or attorney

shall be permitted to make more than one such motion in any one action or special proceeding

pursuant to this section." Code of Civil Procedure section 170.6(a)(3). Defendant has already

exercised a 170.6 challenge in this matter as to Judge Michael Harwin.

Notwithstanding what appears to be a captioning error, Defendant clearly intended the

pleading to be a statement of disqualification for cause filed pursuant to Code of Civil Procedure

section 170.3(c)(l). The court treats the pleading as such. The unsigned pleading is not verified

as required by the Code, was not properly served, is untimely, and demonstrates on its face no

legal grounds for disqualification. Accordingly, it is stricken pursuant to Code of Civil

Procedure §170.4, subdivision (b).

1Order Striking Statement of Disqualification

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1. The statement of disqualification is not verified.

A statement of disqualification must be signed and verified. Code of Civil Procedure §

170.3(c)(l); Code of Civil Procedure § 2015.5. The object of verification is to assure good faith

in the averments or statements of the party. H.G. Bittleston Law and Collection Agency v.

Howard (1916) 172 Cal. 357, 360; Silcox v. Lang (1889) 78 Call 18, 122. Defendant's unsigned

pleading may not be considered verified in accordance with the provisions of C.C.P. section

446(a) as required by C.C.P. section 170.3(c)(l) and section 2015.5.

2. The statement of disqualification was not properly served.

Code of Civil Procedure § 170.3, subdivision (c)(l) requires that the statement of

disqualification "be personally served on the judge alleged to be disqualified, or on his or her

clerk, provided that the judge is present in the courthouse or in chambers." In this instance there

was no personal service on either the judge or the clerk. Defendant's proof of service filed with

the pleading indicates service by U.S. Mail.

3. The statement of disqualification is untimely.

Code of Civil Procedure § 170, subdivision (c)(l) requires that any statement of

disqualification must "be presented at the earliest practical opportunity after discovery of the

facts constituting the ground for disqualification." While no specific time period is set forth in

Code of Civil Procedure section 170.3(c), beyond the requirement that statements be filed at the

earliest practical opportunity after discovery of the facts upon which the grounds are based, it is

clear that the time period is very short. For example, review of a decision such as this one must

be perfected within 10 days. See Code of Civil Procedure section 170.3, subdivision (d).

Here, the most recent hearing giving rise to Defendant's allegation was on December 8,

2009. The statement of disqualification is unsupported by any justification that would warrant a

month-long delay in filing. Under these circumstances, the pleading is untimely. By not filing a

timely motion to disqualify, objections to the assigned judge are waived. In re Steven O. (1991)

229 Cal.App.3d 46.

4. Alleged comments attributed to the court are not disqualifying.

Defendant's stated grounds for disqualification include alleged comments made by the

2Order Striking Statement of Disqualification

,

1 court at hearing on December 8, 2009. The facts and circumstances prompting a challenge for

2 cause must be evaluated in the context of the entire proceeding and not based solely upon

isolated conduct or remarks. Flier v. Superior Court (1994) 23 Cal.App.4th 165. Where bias is

asserted, "[I]t must be more than a quick flare-up or isolated occurrence." The Rutter Group,

Civil Trials and Evidence, page 3-13, citing In re Buckley (1973) 10 Cal.3d 237. Even

assuming that the statements alleged to have been made by the court were made verbatim as

stated in Defendant's pleading, the court's statement was harmless. A party's hypersensitive

overreaction to them does not provide a basis for disqualification. The test is an objective one,

not a subjective one. This objective test requires consideration of the facts from the standpoint

10 of a "well-informed, thoughtful, and objective observer," and not that of a "hypersensitive,

11 cynical, and suspicious person." United States v. Jordan (5th Cir. 1995) 49 F.3d 152, 156.

12 A party's or an attorney's belief as to a judge's bias and prejudice is irrelevant and not

13 controlling in a motion to disqualify for cause, as the test applied is an objective one. United

14 Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104; Stanford

15 University v. Superior Court (1985) 173 Cal.App.3d 403, 408 ("the litigants' necessarily partisan

16 views do not provide the applicable frame of reference.") Mere conclusions of the pleader are

17 insufficient. In re Morelli (1970) 11 Cal.App.3d 819, 843; Urias v. Harris Farms, Inc. (1991)

18 234 Cal.App.3d 415, 426.

19 5. The pleading does not, on its face, demonstrate lawful grounds for

20 disqualification.

21 Bias and prejudice are never impled. Gai v. City ofSelma (1998) 68 Cal.App.4th 213,

22 219: '"Bias and prejudice are never implied and must be established by clear averments."

23 [Citation.] Indeed, a party's unilateral perception of an appearance of bias cannot be a ground

24 for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory

25 litigants can wreak havoc with the orderly administration of dispute-resolving tribunals.'

26 [Citations.]" Statements of disqualification cannot be based upon hearsay or other inadmissible

27 evidence. See, United Farmworkers of America, AFL-CIO v. Superior Court (1985) 170

28 Cal.App.3d 97, note 6 at 106. They may not be based upon inadmissible information from the

Order Striking Statement of Disqualification

1 Internet. Information found on the Internet is neither admissible nor reliable. Anastos v. Lee

2 (2004) 118 Cal.App.4th 1314, 1319 (evidence cannot lack "proper foundation, i.e., personal

knowledge.") As one court has observed, Internet information generally lacks any assurance of

accuracy or currency, and thus the "presumption" is that "information discovered on the Internet

is inherently untrustworthy." St. Clair v. Johnn's Oyster & Shrimp, Inc. (S.D. Tex. 1999) 76 F.

Supp.2d 773, 774.

The information obtained via the Internet in support of Defendant's statement of

disqualification is inadmissible hearsay. Defendant's wild accusations and conclusions drawn

therefrom are simply unsupported by fact or logic, and are not a legal basis for disqualification.

10 In essence, Defendant is dissatisfied with the court's denial on November 30, 2009 of

11 Defendant's motion to quash service of the summons and complaint. However, rulings and

12 findings based upon evidence and argument officially presented can almost never constitute a

13 valid basis for disqualification. McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11

14 (erroneous rulings, even when numerous and continuous, are not grounds for bias or prejudice,

15 nor are "judges' expressions of opinion uttered in what he conceives to be the discharge of his

16 judicial duty"). See also, California Procedure, 3rd Ed., Witkin, Courts, §94, pp. 111-112.

17 A party's remedy for an erroneous ruling is not a motion to disqualify, but rather review

18 by appeal or writ. See Ryan v. Welte (1948) 87 Cal.App.2d 888, 893: "[A] wrong opinion on

19 the law of a case does not disqualify a judge, nor is it evidence of bias or prejudice." Otherwise,

20 the court said, "no judge who is reversed by a higher court on any ruling or decision would ever

21 be qualified to proceed further in the particular case." The proper remedy, of course was an

22 appeal from the erroneous ruling. See 1 Witkin, California Procedure (4th ed.), Courts,

23 Nondisqualifying Opinions, p. 157.

24 There being no legal basis supporting disqualification, the court is ethically required to

25 hear the matter. "A judge shall hear and decide all matters assigned to the judge except those in

26 which he or she is disqualified." Code of Judicial Ethics, Canon 3(B)(1).

27 Conclusion

28 Since the statement of disqualification is not verified, was not properly served, is

4Order Striking Statement of Disqualification

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untimely, and on its face discloses no legal grounds for disqualification, it is ordered stricken

pursuant to Code of Civil Procedure §170.4, subdivision (b). The parties are reminded that this

determination of the question of the disqualification is not an appealable order and may be

reviewed only by a writ of mandate from the Court of Appeal sought within 10 days of notice to

the parties of the decision. Code of Civil Procedure § 170.3(d) In the event that a timely writ is

sought and an appellate court determines that an answer should have been timely filed, such an

answer is filed herewith. See PBA, LLC v. KPOD, LTD (2003) 112 Cal.App.4th 965, 972;

accord, Fine v. Superior Court (2002) 97 Cal.App.4th*651, fit. 3 at 658."7 /L

GOOD CAUSE APPEARING THEREFORE, It i/jfo ordered.

Date:JAMESTprDDOJudge^ofthe Superior Court of California

oiyity of Los Angeles

Order Striking Statement of Disqualification

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Verified Answer of James Kaddo

I, James Kaddo, declare:

1. I am a Judge of the Superior Court and as such have been assigned to preside

over this case.

2. I am not prejudiced or biased against or in favor of any party to this proceeding

or their counsel.

3. All rulings made by me in this action have been based upon facts and arguments-

officially presented to me and upon my understanding of the law. My statements and rulings are

set forth in the records and the files herein, which are the best evidence hereof. To the extent

the moving party's statement of those rulings and statements are inconsistent therewith, they are

denied.

4. All statements made by me and all actions taken by me in this proceeding have

been done in furtherance of what I believe were my judicial duties.

5. I know of no facts or circumstances which would require my disqualification or

recusal in this case.

I declare under penalty of perjury that the foregoing is true and correct and of my own

personal knowledge, except as to those matters stated to be on, my information and belief, and as

vim. &to those matters, I believe them to be true. Executed this

Van Nuys, California.

day of January, 2010, at

Order Striking Statement of Disqualification