North Beverly Park Homeowners v. Bisno

• Decision Date: 13 February 2007
• Docket Number: No. B188779.,B188779.
• Court: California Court of Appeals Court of Appeals
• Parties: NORTH BEVERLY PARK HOMEOWNERS ASSOCIATION, Plaintiff and Respondent, v. Jeannette A. BISNO, et al., Defendants and Appellants.

54 Cal.Rptr.3d 644

147 Cal.App.4th 762

NORTH BEVERLY PARK HOMEOWNERS ASSOCIATION, Plaintiff and Respondent, v. Jeannette A. BISNO, et al., Defendants and Appellants.

No. B188779.

Court of Appeal, Second District, Division 4.

February 13, 2007.

Burke, Williams & Sorensen and James B. Hicks, Santa Ana; Mintz & Werner and Marshall G. Mintz, Los Angeles, for Defendants and Appellants.

Wolf, Rifkin, Shapiro & Schulman, Marc E. Rohatiner and Denise M. Parga, Los Angeles, for Plaintiff and Respondent.

WILLHITE, Acting P.J.

INTRODUCTION

Defendants Jeannette and Robert Bisno (the Bisnos) appeal from an order denying their post-judgment motion to dissolve a permanent injunction.¹ This appeal is their second in a lawsuit brought against them by plaintiff North Beverly Park Homeowners Association (the Association).

Beginning in 1999, the Bisnos planned to build a home in North Beverly Park, a luxury community in Beverly Hills. The Association's Architectural Review Committee disapproved certain aspects of the Bisnos' plans, including the design of their front gates, and a particular sculpture they intended to place in their motor court. In June 2002, the Association sued the Bisnos for breach of covenants, nuisance, and trespass. As here relevant, the Association sought an injunction preventing the Bisnos from installing the front gates and sculpture. The trial judge initially granted a preliminary injunction prohibiting installation of the sculpture and gates. Ten months later, on the Bisnos' motion, the court dissolved the injunction. The Bisnos then installed the sculpture and gates.

From March 8 through March 26, 2004, the trial judge held a non-jury trial on the Association's complaint. On April 29, 2004, the judge entered a permanent injunction requiring the Bisnos to move the sculpture to a spot not visible from the street, and to remove the gates. The injunction further restrained the Bisnos from installing any gates or items in their front motor court without permission from the Architectural Review Committee.

The Bisnos appealed. In an unpublished opinion, we affirmed the judgment.² The Bisnos' petition for review to the California Supreme Court was denied, and the remittitur issued on October 13, 2005.

Following issuance of the remittitur, the Bisnos sought to avoid the permanent injunction by filing a statement of qualification against the trial judge under Code of Civil Procedure section 170.1, subdivision (a)(7), on the ground that he suffered an impairment of memory preventing him from recalling the trial testimony.³ The Bisnos also filed a motion to dissolve the permanent injunction under Civil Code section 3424, alleging that the judge's impairment required dissolving the injunction in the interests of justice. In support of this motion, the Bisnos attempted to use, inter alia, the trial judge's failure to respond to their statement of disqualification as evidence that the trial judge consented to disqualification, requiring that their allegations be deemed true.

The matter was assigned to a different judge, whom we shall refer to, for clarity, as the motion judge. The motion judge denied the motion to dissolve the permanent injunction.

The Bisnos now appeal from the order denying their motion. In response to their various contentions, we hold that the statutory procedure for disqualification of judges for cause (§ 170.3) does not apply to final judgments. Therefore, the trial judge's failure to answer or strike the Bisnos' statement of disqualification, which was filed and served after final judgment, does not constitute consent to retroactive disqualification, and does not require that the allegations of the statement of disqualification be deemed true. Further, we find the primary decision on which the Bisnos rely, Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 285 Cal.Rptr. 659 (Urias), to be distinguishable (it involved a judgment not yet final), and conclude that its reasoning does not apply to require application of the statutory disqualification procedure to final judgments. Finally, we conclude that even if the analysis of Urias were to apply here, the Bisnos' statement of disqualification failed to allege sufficient facts to compel the trial judge's disqualification.

Concerning the Bisnos' motion to dissolve the permanent injunction, we assume (without deciding) that a judge's disability may be a basis in equity under Civil Code section 3424 to dissolve a permanent injunction that is the subject of a final judgment. Nonetheless, we conclude that the Bisnos failed to meet their burden of proof, and that the motion judge did not abuse his discretion in refusing to dissolve the injunction and in denying the Bisnos' request for discovery of the trial judge's mental condition. Therefore, we affirm the judgment.

DISCUSSION

I. The Statement of Disqualification

The remittitur in the prior appeal issued on October 13, 2005. Approximately six weeks later, on November 30, 2005, the Bisnos' filed in the trial court a verified "Statement of Disqualification." The document identified the trial judge by name, as well as his department number, and stated: "Trial Date: March 8, 2004." However, nowhere did it clearly state that it was seeking the trial judge's retroactive disqualification. Nor did it state that it was seeking to have the final judgment vacated.

In the body of the document, the Bisnos' attorney purported to "object to the hearing of the above matter by the [named trial judge], on the: grounds that the judge is disqualified from hearing and determining this matter" under section 170.1. The stated ground was that the judge "is unable to properly perceive the evidence or is unable to properly conduct the proceeding because of a permanent or temporary physical impairment in that [he] is suffering from an impairment of memory which prevents him from recalling the testimony adduced at trial." Although the statement did not identify the particular statutory ground for disqualification, it is apparent that it referred to section 1704, subdivision (a)(7), which provides that a judge is disqualified if "[b]y reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding."

In support of this ground, the Bisnos' attorney alleged the following supporting facts: "In instances subsequent to the trial of this action, [the judge] has exhibited to other lawyers a lack of memory and concentration while he was on the bench. I now believe that Tie] was suffering from such lack of memory and concentration while acting as the trier of fact in this case and his physical impairments, while existing at the time of trial, became more manifest subsequent to the trial. I am informed and believe that [the trial judge's] impairments reached the point where he was put on administrative leave by the Superior Court. I first became concerned about [the trial judge's] physical impairments On or about October 17, 2005 through a conversation with another lawyer who knew that I had a case before [the judge] and himself had information about [the judge] having been placed on administrative leave and the reasons therefore. I subsequently followed up and confirmed that information with another lawyer known to me who also had a case before [the judge] and who informed me of his personal observations of [the judge's] physical impairments which manifested themselves in a lack of memory and concentration while on the bench."

The Bisnos personally served the statement of disqualification on the trial judge at his residence on December 6, 2005. The judge was then on leave from the court, apparently based on his medical condition, and never responded to the statement of disqualification.

Relying on Urias, supra, 234 Cal. App.3d 415, 285 Cal.Rptr. 659, and section 170.3, subdivision (e)(4), the Bisnos argue that the trial judge's failure to respond constituted a consent to disqualification, and that the statement of disqualification must be deemed true. Therefore, according to the Bisnos, the judge was disqualified based on his impairment of memory during the trial. As a result, the judgment must be vacated and the permanent injunction dissolved.

California law holds that rulings by a judge later found to be disqualified are either "void" or "voidable"—the precise label depending on which line of authority the particular court decides to follow. (See Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776, 779-780, 37 Cal. Rptr.3d 718, and cases cited therein [noting conflict, and concluding that the decision in Giometti v. Etienne (1934) 219 Cal. 687, 688-689, 28 P.2d 913 compels lower courts to find rulings by disqualified judge void rather than voidable]; cf. 2 Witkin, Cal. Procedure (4th ed. 1996) Courts, §§ 91-95, pp. 127-135 [advocating view that because court has subject matter jurisdiction, disqualified judge's rulings are voidable rather than void].) The distinction is important when dealing with a final judgment, because "a party seeking to set aside a voidable judgment or order must act to set aside the order or judgment before the matter becomes final" (Christie, supra, 135 Cal.App.4th at p. 780, 37 Cal. Rptr.3d 718), whereas describing the judgment as void—meaning the court lacks subject matter jurisdiction—suggests that the judgment is subject "to collateral attack at any time," a result Witkin accurately describes as "highly undesirable" (2 Witkin, supra, at § 93, p. 131). Whether a judgment rendered by a disqualified judge is considered void or voidable, the issue of disqualification must be raised at the earliest reasonable opportunity after the party becomes aware of the disqualifying facts. (Urias, supra, 234 Cal.App.3d at p. 425, 285 Cal.Rptr. 659.)

Of course, the instant case involves a final judgment. Trial was held (with no mention of the judge's purported incapacity), and judgment was...