DL 1 FEB 2 8 2014 2 By. 3 FRESNO SUPERIOR C DEPT. 402 - 4 5 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 7 CENTRAL DIVISION 8 9 10 FRESNO RV, INC., dba RV OUTLET, a ) California Corporation; CLOVIS RV, INC., a ) California Corporation, ) ) Plaintiffs, 11 12 13 14 15 16 Case No. 11CECG01433 VERIFIED RESPONSE & CONSENT TO DISQUALIFICATION V. PAUL EVERTS RV COUNTRY, INC., a California Corporation; PAUL EVERT, an individual; CHARLES E. CURTIS, JR., an individual; AARON LYON, an individual; JIM CROWELL, an individual, Defendants. 17 18 19 On February 18, 2014, at approximately 9:15 a.m., responding judge was 20 personally served in his courtroom, by way of authorized delivery to his clerk, with a 21 Motion to Disqualify based upon CCP § 170.1 & § 170.3. 22 23 24 Responding judge has reviewed the allegations made and conclusions drawn by the moving parties. Responding judge agrees with and adopts the specific facts recounted and 25 recited by Defendants' trial attorney, Gregory F. Dyer, in his affidavit attached to the 26 Motion to Disqualify. 27 28 COUNTY OP Fresno, FRESNO CA Responding judge was and is unaware of his spouse's activity on Facebook in a general sense and specifically here, any activity or "Facebook friendship" with Attorney 1 Jeffrey Hammerschmidt. Furthermore, until being provided with the "screenshots" by 2 cyber investigator Stephen Roper, this judge would not have been able to swear under 3 oath that he knew with certainty any of his spouse's "Facebook Friends." 4 On February 26, 2014, responding judge asked his spouse to check her "Facebook 5 friend" list to determine if Mrs. Hammerschmidt was a "friend." Responding judge's 6 spouse confirmed that Mrs. Hammerschmidt is not, nor ever has been, a "Facebook 7 friend." Responding judge is not and has never been "Facebook friends" with Attorney 8 Hammerschmidt's spouse. Responding judge has never seen her Facebook page nor 9 any "post" by her. 10 Responding judge has very little activity on Facebook. Responding judge rarely 11 visits Facebook and does not interact with it in any significant way. Following a review of 12 the approximately five years the account has been open, responding judge has 13 "posted" a total of thirteen times. Two of those were regarding his eldest child's 14 acceptance to college, one was a link to youth soccer coaching tips and the other ten 15 were "happy birthday" comments when prompted that it was a "friend's" birthday. 16 17 18 19 20 21 22 23 24 25 26 Responding judge has never "unfriended" any of the noted few "friends" on his former Facebook account, only out of concern that it might be taken as a personal affront and hurt the individual's feelings. Despite the two separate disclosures of an actual, real-life friendship between this responding judge and Attorney Hammerschmidt referenced in the declaration of trial attorney Gregory Dyer, all trial counsel advised this responding judge that they had spoken with their respective clients and that the relationship posed "no problem1" with this judge hearing the case. After the judge recounted a part of the disclosure on the record, adopting the attorneys language "... no problem," the attorneys again chose not to file a challenge to this responding judge pursuant to the Code of Civil Procedure. 27 28 COUNT* OP Fresno, FRESNO CA 1 Responding judge interpreted this comment from counsel as to mean they did not intend to exercise their right to file a CCP §170.6 based upon the disclosure. —2— 1 As responding judge had twice disclosed an "actual" friendship with an attorney 2 appearing before the court, and with the judge's previously noted lack of significant 3 involvement with Facebook, it never occurred to the judge to disclose what he did not 4 consider a fact (Facebook "friend") that, armed with the personal information already 5 contained in the disclosures, would have caused a reasonable person to entertain a 6 doubt in the judge's impartiality. 7 Simply put, the issue of "Facebook," generally or as it related to Attorney 8 Hammerschmidt specifically, was never "on-the-radar" for your responding judge nor did 9 it ever enter into this judge's consideration of the case for any purpose until he was 10 11 personally served with the Motion to Disqualify on February 18, 2014. The above notwithstanding, responding judge has now been made aware of the 12 specific direction from the California Judges Association Ethics Committee Opinion No. 13 66 and has reviewed it in detail. Most pertinent here is that portion of the opinion which 14 states at pp. 10-11: "When a judge learns that an attorney who is a member of that 15 judge's online social networking community has a case pending before the judge the 16 online interaction with that attorney must cease (i.e. the attorney should be 17 "unfriended") and the fact this was done should be disclosed along with the disclosure 18 discussed above." 19 20 21 22 23 24 25 26 27 28 COUNTY OP FRBSNO Fresno, Although the ethics opinion is advisory and does not have the force of law, responding judge does respect its value and has reevaluated his disclosure in light of the committee's direction. Upon reflection, and considering C.C.P. §170.1(a)(6)(A)(iii), responding judge now finds that a neutral "man on the street" - aware of the judge's unintentional and inadvertent oversight in more specifically defining and disclosing his friendship to include the "Facebook friendship" and then promptly "unfriending" Attorney Hammerschmidt once he became involved in the case - might reasonably entertain a doubt that the judge would be able to be impartial. Therefore, and on this basis, responding Judge consents to disqualify himself, prior to completing the last pending judicial act - the signing of the judgment in this case. CA -3- 1 Accordingly, this responding judge will take no further action on this matter but for 2 the permissible action of transferring the case back to the department of the Civil 3 Presiding, the Hon. M. Bruce Smith, Department 501 of the B.F. Sisk Courthouse on Friday, 4 March 21, 2014 at 9:30 a.m. for a status conference. 5 6 7 It is so ordered. DATED this^ft day of February, 201 ^. 8 9 y Y. Hamilton, Jr. ( 10 \ the Superior CourV—-^ 11 12 Declaration 13 14 I declare under the penalty of perjury under the laws of the State of California that 15 the foregoing is true and correct and that if called upon as a witness, I could and would 16 competently testify thereto. 17 18 Executed this l_i_ day of February, 2014 at Fresno, California. 19 20 21 22 23 24 25 26 27 28 COUNTY OP PRBSNO Fresno, CA 'Jeffrey Y. Hamilton, Jr. 1 2 3 4 5 6 7 8 9 10 11 12 13 LEWIS BRISBOIS BISGAARD & SMITH LLP MICHAEL K. JOHNSON, SBN 130193 E-Mail: Michael.Johnson@lewisbrisbois.com LANN G. MCINTYRE, SBN 106067 E-Mail: Lann.McIntyre@lewisbrisbois.com San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 JONES & DYER GREGORY F. DYER, SBN 114486 E-Mail: gdyer@jonesdyer.com KRISTEN K. PRESTON, SBN 125455 E-Mail: kpreston@jonesdyer.com 1800 J Street Sacramento, California 95811 Telephone: 916.552.5959 Facsimile: 916.442.5959 18 and JIM CROWELL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO CIVIL DIVISION - B.F. SISK COURTHOUSE FRESNO RV, INC., dba RV OUTLET, a California Corporation; CLOVIS RV, INC., a California Corporation, Plaintiffs, 19 20 22 23 CASE NO. 11 CECG 01433 JYH DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON AND FOR OTHER APPROPRIATE RELIEF; vs. 21 DEPUTY Attorneys for Defendants PAUL EVERT'S RV COUNTRY, INC., PAUL EVERT, CHARLES E. CURTIS, JR., 15 17 By 333 Bush Street* Suite 1100 14 16 FRESNO COU PAUL EVERT'S RV COUNTRY, INC., a California Corporation; PAUL EVERT, an individual; CHARLES E CURTIS, JR., an individual; AARON LYON, an individual; JIM CROWELL, an individual, Defendants. 24 MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS OF GREGORY DYER; CHARLES CURTIS, PAUL EVERT, AND STEPHEN ROPER IN SUPPORT [Code Civ. Proc, §§ 170.1; 170.3, subd. (a), (c).] Phase One Trial Date: May 13,2013 Phase Two Trial Date: December 20, 2013 25 Department: 402 Judge: Jeff Hamilton 26 27 LEWIS BRISBOIS BISGAARD &SMIHUP AITQfWEVSAIlAW 28 4853-1592-4504.1 DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS IN SUPPORT nil m RY FAX TABLE OF CONTENTS 1 Page 2 3 4 I. INTRODUCTION 2 II. LEGAL ARGUMENT FOR DISQUALIFICATION 5 A. Grounds for Disqualification Exist. 5 B. Disqualification Is Mandated by Judicial Ethics Opinion No. 66 9 C. Defendants Did Not Waive the Disqualification and Have Timely Objected to Judge Hamilton Continuing to Preside Over Trial or Take Any Other Judicial Action in This Matter 12 When the Facts Constituting Disqualification Occur, the Court's Power to Act Terminates Immediately; Judgment Should Not Be Entered and Would Be Void if Entered Under the Circumstances 12 5 6 7 8 9 D. 10 11 IH. CONCLUSION 13 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LEWIS BRISBOIS B1SGAARD &SMIHUP AnORNEYSAllAW 28 4853-1592-4504.1 DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS IN SUPPORT TABLE OF AUTHORITIES 1 Page 2 CASES 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Auto Equities Sales, Inc. v. Superior Court (1962)57Cal.2d450 12 Betz v. Pankow (1993) 16 Cal.App.4th 931 12 Christie v. City ofEl Centro (2006) 135 Cal.App.4th 767 12 Domville v. State (Fla.Dist.Ct App. 2012) 103 So.3d.184 11 Giometti v. Etienne (1934) 219 Cal. 687 : McCauley v. Superior Court (1961) 170 Cal.App.2d 562 12 12,13 Tatum v. Southern Pacific Co. (1967) 250 Cal.App.2d 40 12 United Farm Workers ofAmerica v. Sup. Ct. (Maggio Inc.) (1985) 170 Cal.App.3d 97 Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415 5,6 12 17 STATUTES 18 19 20 21 22 23 California Civil Code §3294 California Code of Civil Procedure §170.1 California Code of Civil Procedure §170. l(a)(6)(A)(iii) California Code of Civil Procedure §170.3(a) California Code of Civil Procedure §170.3(b) California Code of Civil California Code of Civil CaHfomia Code of Civil California Code of Civil Procedure Procedure Procedure Procedure 24 25 26 27 LEWIS BRISBOIS BISGAARD &SM1HUP 28 §170.3(b)(l) §170.3(b)(3) §170.3(c)(l) §170.3(c)(5) 3 1, 5,6 5,7 1 1,6 6 8 12 13 RULES California Code of Judicial California Code of Judicial California Code of Judicial California Code of Judicial Ethics, Ethics, Ethics, Ethics, Canon 2A Canon 2B(1) Canon 3E(1) Canon 3E(2)(a) California Code of Judicial Ethics, Canon 4A(1) California Code of Judicial Ethics, Canon 4A(3) 4853-1592-4504.1 1,6 1,6 1,6 1, 5,6 1,6 1,6 it DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS IN SUPPORT OPINIONS 1 2 Cal. Judges Assn., Jud. Ethics Com., Formal Opinion No. 66 (Nov. 23,2010) .2,9-11 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LEWIS BRISBOIS BISGAARD & SMITH UP ATRXWEVSAIUW 28 4853-1592-4504.1 JUL DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS IN SUPPORT TO THE CLERK OF THIS COURT, THE HON. JEFFREY HAMILTON, AND TO ALL 1 2 PARTIES IN THIS ACTION: 3 Comes now defendants, PAUL EVERT'S RV COUNTRY, INC., a California corporation; 4 PAUL EVERT, an individual; CHARLES E. CURTIS, JR., an individual; (collectively referred to 5 as "defendants") and each of them, by and through their attorneys of record^ who hereby object to 6 Judge Jeffrey Y. Hamilton presiding in any further proceedings concerning this action against 7 them, based on his disqualification pursuant to Code of Civil Procedure sections 170.1 and 170.3, 8 subdivisions (a) and (c), and who seek further appropriate relief as described herein.1 9 This objection is based on California Code of Judicial Ethics, Canons 2A [judges shall "act 10 at all times in a manner that promotes public confidence in the integrity and impartiality of the 11 judiciary"], 2B(1) ["A judge shall not allow family, social, political, or other relationships to 12 influence the judge's judicial conduct or judgment, nor shall a judge convey or permit others to 13 convey the impression that any individual is in a special position to influence the judge"], 3E(1) 14 ["A judge "shall disqualify himself or herself in any proceeding in which disqualification is 15 required by law"], 3E(2)(a) [a judge is required to disclose in ail trials, on the record, information 16 that is "reasonably relevant to the question of disqualification under Code of Civil Procedure 17 section 170.1, even if the judge believes there is no actual basis for disqualification"], 4A(1) [in 18 his or her extracurricular activities, a judge may not engage in activities that "cast reasonable 19 doubt on the judge's capacity to act impartially5'], and 4A(3) [a judge shall conduct his or her 20 extracurricular activity so that they do not "interfere with the proper performance of judicial 21 duties'*]. 22 This objection is also based upon Formal Opinion No. 66, dated November 23, 2010, by 23 the Judicial Ethics Committee of the California Judges Association, regarding "Online Social 24 25 26 27 LEWIS BRISBOIS B1SGAARD &SMIH11P AnODMEVSAItASW 1 This motion is not brought on behalf of Defendant Jim Crowell. The court has already found no liability on the part of Mr. Crowell, and therefore the court should enter Judgment in favor of Mr. Crowell, who is not seeking to disqualify the Judge, based on the findings already made. This motion is based on the appearance of friendship with plaintiffs' counsel, which potentially implies bias in favor of plaintiffs, not in favor of any defendant. 28 4853-1592-4504.1 1 DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS IN SUPPORT 1 Networking" ("Formal Opinion No. 66"), as well as the facts and upon the grounds set forth in the 2 attached declarations of Gregory Dyer, Charles Curtis, Jr., Paul Evert, and Stephen Roper, the 3 memorandum of points and authorities below, and the papers and records on file herein. MEMORANDUM OF POINTS AND AUTHORITIES 4 5 6 7 I. INTRODUCTION On May 13, 2013, this matter came on for trial, without a jury, before the Honorable Jeffrey Hamilton, presiding, commencing with motions in limine. 8 Plaintiffs FRESNO RV, INC. dba RV OUTLET, and CLOVIS RV, INC., were represented 9 by attorney William Brewer, Esq, and later, also by attorney Jeffrey T. Hammerschmidt 10 ("Attorney Hammerschmidt"). Attorney Hammerschmidt was initially designated as an expert 11 witness on behalf of the plaintiffs. 12 On May 14, 2013, the parties and court addressed motions in limine, including defendants' 13 motion in limine to exclude Attorney Hammerschmidt as an expert witness. (Declaration of 14 Gregory Dyer ("Dyer Decl."), ^ 4, Exh. A.) Before going on the record that day, Judge Hamilton 15 disclosed that he was casual friends with Attorney Hammerschmidt, and that the two had worked 16 together previously at the District Attorney's Office. (Dyer Decl., ^[ 3.) 17 After going on the record, the parties confirmed their prior off-the-record agreement to 18 proceed without a jury, and then proceeded to address in limine motions. (Dyer Decl., f 6 , Exh. 19 A, pp. 4-5.) Defendants' first in limine motion concerned Attorney Hammerschmidt's proposed 20 "expert" testimony. (Dyer Decl., % 4, 5, Exh. A, p. 12.) Although plaintiffs withdrew him as their 21 expert, they acknowledged he might appear in the case as an attorney for plaintiffs. (Ibid) At that 22 point, when discussing Attorney Hammerschmidt's role in the case for plaintiffs, Judge Hamilton 23 made the following disclosure on the record: "And I did disclose to the parties in chambers, nobody had a problem with 24 the fact that I am actually friends with Jeff Hammerschmidt. We've never 25 talked about this case, we make a point of not talking about cases, and the fact that I'm his friend will not make me treat him any differently for or against any party that calls him. I will call the balls and strikes as I would on any other witness, so would he have been a witness, that's the way [I] would have treated him. If he's going to act as a lawyer in this case, I won't treat him any better or worse than I treat any of you, the fact that, you know, 26 27 LEWIS BR1SBOIS BBGAARD &SMIHUP 28 4853-1592^504.1 2_ DEFENDANTS' MOTION TO DISQUALIFY JUDGE JEFFREY HAMILTON; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATIONS IN SUPPORT I have a casual friendship with him outside is not going to matter. 1 nobody had problem with that, is that still... the case?" (Dyer Decl., % 5, 2 Exhibit A, pp. 12-14.) 3 4 Defense counsel expressed agreement with Judge Hamilton's statement that "nobody had a problem with that." (Id. at p. 14.) 5 6 7 On or about May 20, 2013, Attorney Hammerschmidt was associated in as counsel of record for plaintiffs, (Dyer Decl., ^ 7.) Attorney Hammerschmidt attended trial on a few trial days, including the punitive damage phase. (Dyer Decl., ^j 10.) 8 9 10 11 12 13 14 Judge Hamilton issued a tentative decision on September 20, 2013, finding defendants Paul Evert's RV Country, Inc., Paul Evert, Charles E. Curtis, and Aaron Lyon jointly and severally liable for defamation, and awarded "assumed damages" of $500,000. (Dyer Decl., ^f 8, Exh. B, pp. 2 ,28.) Judge Hamilton also found that plaintiffs had established the defendants acted with "malice," "oppression" or "fraud" under Civil Code section 3294, to support an award of punitive damages, and ordered that a second phase of trial be held, to assess punitive damages. (Dyer Decl., Exh. B, 28.) 15 16 17 18 19 20 21 22 23 24 25 26 And The second phase of trial was held December 20, 2013, after the hearing was continued several times by agreement of the parties, and evidence was presented and argument heard on that day. On January 17, 2014, the court issued its "final" Statement of Decision ["Final SOD"], awarding plaintiffs "assumed" damages of $500,000, and further awarding punitive damages against defendant Paul Evert in the amount of $3 million, against defendant Charles Curtis, Jr. in the amount of $.1 million, and against defendant Aaron Lyon in the amount of $80,000. (Dyer Decl.,H9,Exh.C.) On or about January 27, 2013, it came to defendants' attention that the friendship between Judge Hamilton and Attorney Hammerschmidt was closer than had been previously disclosed by Judge Hamilton, and that the two are and were, during trial, Facebook Friends. (Declaration of Charles Curtis, Jr. ("Curtis Decl."),