Erin Baldwin Files Writ of Mandate to Disqualify Judge Franz Miller in Parsa Case
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Fourth Civil Number: G044953
In The Court Of Appeal of The State Of California
Fourth Appellate District, Division 3
Erin K. Baldwin
Superior Court of the State of California
For the County of Orange,
PETITION FOR WRIT OF MANDATE
OR OTHER APPROPRIATE WRIT
From An Order of the Orange County Superior Court
Dated March 3, 2011
The Honorable Franz Miller
Superior Court of Orange County,
Case No. 30-2009-00117752
Erin K. Baldwin
Post Office Box 3141
Beaumont, California 92223
Defendant/Petitioner, In Pro Per
PETITION FOR WRIT OF MANDATE
Overview: Purpose of Writ of Mandate
To Command Orange County Superior Court Judge Franz E. Miller to Recuse or Disqualify Himself as Judicial Officer for Subject Cases
1. Orange County Superior Court (“OCSC”) Judge Franz E. Miller (“Respondent”) must recuse or disqualify himself from further judicial review of the subject case, OCSC Case No. 30-2009-00117752: Parsa Law Group, APC v. Bad Biz Finder, Erin Baldwin, et al., (the “Parsa Case”), an unlimited civil action for defamation filed on January 26, 2009 and two other defamation cases as follows:
a. OCSC Case No. 30-2009-00125305-CU-DF-CJC: UDR, Inc. v. Erin Baldwin, et al., (the “UDR Case”) the second unlimited civil action for defamation brought by BKGG against Petitioner filed on June 29, 2009 and assigned to Judge David Chaffee. On July 15, 2009, BKGG filed a Peremptory Challenge as to Judge Chaffee and the UDR Case was reassigned to Judge Geoffrey Glass.
b. OCSC Case No. 30-2009-00126004-CU-DF-CJC: Jeffrey A. Cancilla, Craig M. Laverty, et al. v. Erin Baldwin, et al., (the “Cancilla-Laverty Case”) the third unlimited civil action for defamation filed against Petitioner on July 13, 2009 and assigned to Judge David McEachen.
2. All three cases were brought against Petitioner by one law firm, Burkhalter, Kessler, Goodman & George LLP (“BKGG”), within a six-month period of time, with the express intention to vex and annoy. On September 2, 2009, Respondent ordered the UDR Case and the Cancilla-Laverty Case related to the Parsa Case, vacated the cases from their respective courtrooms, and transferred both cases to Respondent’s review in Department C-14 for all purposes. [The corroborating Minute Order dated September 2, 2009 is a part of the Appendix, Vol. I, Exhibit “A,” at page 0001].
3. Respondent engaged in extrajudicial ex parte communications pertaining to the subject cases on May 19, 2009 documented in a Minute Order of the same date wherein it states, “Off the record … Attorney, David A. Berstein is present.” Respondent’s Court Reporter, Evelyn Ruth Barnett was present, but the conversation was not recorded. [The corroborating Minute Order dated May 19, 2009 is a part of the Appendix, Vol. I, Exhibit “B,” at page 0002].
4. David A. Berstein, Esq. (“Berstein”) of BKGG admitted the extrajudicial ex parte communication of May 19, 2009 in Paragraph 8 of his Declaration dated March 10, 2011:
“i. “On two separate occasions in this matter, Judge Miller called counsel into chambers.” [Paragraph 8 of BKGG’s March 10, 2011 Berstein Declaration]
“ii. On the first occasion, Judge Miller, after considering Plaintiff’s ex parte application for a temporary restraining order and preliminary injunction, specifically explained to me and my associate, that he was denying Plaintiff’s application in an effort to protect Defendant Baldwin’s constitutional rights under the First Amendment. Judge Miller further stated that to grant Plaintiff’s application would, in effect, constitute a prior restraint. Judge Miller concluded that no such injunctive relief would be ordered until such time that full court hearing could be conducted and in which Defendant Baldwin could participate, if she so chose.” [Paragraph 8 of BKGG’s March 10, 2011 Berstein Declaration]
5. However, less than two weeks later, on June 2, 2009, Respondent granted Plaintiff’s Request for a Permanent Injunction and Default Judgment in the amount of $604,515.66. [The Permanent Injunction and Default Judgment dated June 2, 2009 is a part of the Appendix, Vol. I, Exhibit “C,” at page 0003].
6. Respondent also engaged in extrajudicial ex parte communications pertaining to the subject cases on May 29, 2009 documented in a Minute Order of the same date wherein it states, “8:34 a.m. The Court conducts a chambers conference, unreported, with counsel present.” [The corroborating Minute Order dated May 29, 2009 is a part of the Appendix, Vol. I, Exhibit “D,” at page 0006].
7. Once again, Berstein admitted the extrajudicial ex parte communications in Paragraph 9 of his Declaration dated March 11, 2011:
“iii. On the second occasion, I was in chambers with another associate from my office where Judge Miller merely wanted to reschedule the hearing on the Default Prove-Up due to deficiencies in the filing of the written portion of Plaintiff’s Default Prove-Up package. Nothing of any substance occurred while in chambers other than to select a date convenient to the Court, counsel, and Plaintiff’s representative. For the record, no one else was in chambers that day.” [Paragraph 9 of BKGG’s March 10, 2011 Berstein Declaration]
To Oppose Chief Justice Tani Cantil-Sakouye’s Assignment
of Los Angeles Superior Court Judge Carolyn B. Kuhl to
Review Petitioner’s Verified Statement and Challenge for Cause
8. On March 14, 2011, Acting Presiding Judge of the Orange County Superior Court, David A. Thompson (“Judge Thompson”), notified Petitioner via letter that California Supreme Court Chief Justice Tani Cantil-Sakauye, Chairperson of the Judicial Council, (“Chief Justice Sakauye”) had assigned the review of Petitioner’s February 24, 2011 Verified Statement and Challenge for Cause Requesting Recusal or Disqualification of Judge Franz Miller and Referral to the Chief Justice of the California Supreme Court to an Unbiased Judge of Another County (“Challenge for Cause”) to Los Angeles Superior Court Judge Carolyn B. Kuhl (“Judge Kuhl”). [This Letter, the Assignment Letter to Judge Kuhl from Judg e Thompson, the Minute Order, and the Certificate of Service all dated March 14, 2011, is a part of the Appendix, Vol. I, Exhibit “E,” at page 0007].
9. In a March 15, 2011 letter to Chief Justice Sakauye, Judge Kuhl, Judge Thompson, Respondent and BKGG, Petitioner vehemently opposed this assignment for cause due to the fact that Judge Kuhl is not “an unbiased judge.” Rather, Judge Kuhl and her husband, Los Angeles Superior Court Judge William Highberger, enjoy a personal relationship with Thomas V. Girardi, Esq. (“Girardi”), a prominent and integral figure in Petitioner’s cases before the Court. [Petitioner’s response letter to Chief Justice Sakauye, Judge Thompson, Judge Kuhl, Respondent, and BKGG is a part of the Appendix, Vol. I, Exhibit “F,” at pages 0006-0009].
10. Beginning in 2005, in the case Paul Meco, et al. v. International Medical Research, Inc., et al., (Los Angeles Superior Court Case No. BC267700), Judge Kuhl disqualified herself from presiding over cases wherein Girardi was a party or counsel of record. This is due to their personal relationship and accusations that Girardi was implicated in significant misconduct charges in the Meco v. IMR case for taking bribes amounting to $10 million. At that time, Chief Justice Ronald M. George (“Chief Justice George”) confirmed the disqualification of not only Judge Kuhl but also the entire Los Angeles Superior Court, Class Action Division, as it pertained to Girardi.
11. In addition, in the Meco v. IMR case (consolidated appeals action), Edward O. Lear, Esq. and Paul J. Virgo, Esq. of Century Law Group (former attorneys for the California State Bar) represented Plaintiffs/Appellants in the action. Mr. Lear and Mr. Virgo left the California State Bar to form Century Law Group, one of the largest and most successful loan modification law firms in California as well as one of the most criticized for its violations of the law and low ethical standards in terms of its protection revenue of loan modification firms perpetrating fraud against consumers and using past connections with the California State Bar to unjustly enrich themselves.
12. On May 26, 2006, Chief Justice George of the California Supreme Court appointed Judge Kuhl to the Judicial Council of California, the constitutional policy-making body of the California courts, where the March 14, 2011 assignment from Chief Justice Sakauye came from two days ago.
13. In 2008, Judge Kuhl participated in the Judicial Council-authored California Senate Bill X2-11 (“SBX2-11”). SBX2-11 granted retroactive immunity to corrupt superior court judges who had been recipients of large sums of monies, called “benefits” although hidden from the public for over twenty (20) years. These sums were paid by Los Angeles County Supervisors in exchange for favorable rulings from the bench. SBX2-11 gave retroactive immunity to the judges and others from criminal prosecution, civil liability and disciplinary action.
14. Judge Kuhl and her husband, Judge Highberger, continue to accept the illegal payments, now amounting to $57,000 per year per judge, which is in addition to their legal salaries of $178,000 per year, plus legal benefits of almost $30,000 per year.
15. Chief Justice George knew personally of these problems as they are issues presented in the petition for Writ of Certiorari in the case of Richard I. Fine v. State Bar of California, Supreme Court of California, United States Supreme Court Case No. 08-1573. This petition demonstrates that the California State Bar’s action to disbar Mr. Fine for bringing Federal Civil Rights cases against the county of Los Angeles and Los Angeles Superior Court Judges. Fine challenged the payments from the county of Los Angeles County to Los Angeles Superior Court Judges as well as filing other documents in the Courts violated the First, Fifth and Fourteenth Amendments.
16. In this action Respondent is being held to answer for his agreement made via extrajudicial ex parte communications with California State Bar investigators, Thomas Layton (“Layton”) and John Noonen (“Noonen”), the California State Bar, BKGG, and others. Petitioner is informed and believes that Respondent entered the Default Judgment and Permanent Injunction against Petitioner in exchange for a portion of the James Parsa’s client trust account fund in the amount of $11 million.
17. Based on the facts, supra, Petitioner has serious doubts that Judge Kuhl could serve as a neutral, unbiased judge from another county and therefore, must be replaced with an alternate suitable and agreeable to both parties.
To Command that the California Supreme Court Assign a Special Prosecutor to Commence Disciplinary Proceedings Against the Attorneys Involved in this Action
18. In addition to judicial misconduct in this action, attorney misconduct has been rampant. Petitioner requests through this Writ that the California Supreme Court assign a Special Prosecutor to investigate, report and implement disciplinary action against Girardi, O’Brien, the attorneys at BKGG, and others generally described below and described in more specificity in the future privately with a Court-appointed Special Prosecutor.
a. The attorneys involved in the Parsa Case, the UDR Case and the
Cancilla-Laverty Case, including, but not limited to BKGG.
b. The attorneys involved in two baseless and retaliatory unlawful detainer actions brought against Petitioner by UDR, Inc., (a publicly-traded Landlord/REIT from whom Petitioner rented an apartment) including, but not limited to the law firm, Todd A. Brisco & Associates. These unlawful detainer actions are defined as OCSC Case No. 30-2009-00244203 filed on February 11, 2009 (the “1st UD Case”) and OCSC Case No. 30-2009-00248999 filed on March 3, 2009 (the “2nd UD Case”). These lawsuits were brought expressly to retaliate against Petitioner for forming a class action lawsuit on behalf of UDR’s California tenants and publishing facts pertaining to UDR’s illegal California residential lease agreements to warn and protect California tenants. These unlawful detainer actions are indisputably linked to the aforementioned defamation action, the UDR Case.
c. The attorneys involved in the criminal and civil actions brought against Petitioner in San Bernardino Superior Court (“SBSC Actions”), specifically SBSC Civil Case No. CIVHS900261 filed on October 5, 2009; SBSC Criminal Case No. MSB906348 (filed on October 28, 2009); SBSC Criminal Case No. MSB905837 (filed on January 15, 2010), and FSB1000789 (filed on February 25, 2010).
d. The SBSC Actions were orchestrated by Girardi in collusion with California State Bar attorney, Paul S. O’Brien, Esq. (“O’Brien”), and non-attorney California State Bar Investigators, Thomas Layton (“Layton”) and John Noonen (“Noonen”). The actions were then carried out by members of the San Bernardino District Attorney’s Office (“SBDA”), San Bernardino Public Defender’s Office (“SBPD”), and the San Bernardino Sheriff’s Department (“SBSD”). (Please note, a separate claim regarding county-specific issues was filed against the County of San Bernardino on March 3, 2011 and currently being investigated by the San Bernardino County’s Risk Management Office.
e. Petitioner’s investigative journalism skills and applications uncovered and reported egregious fraud in the loan modification industry and specifically how California State Bar-licensed attorneys were “renting” their law licenses to non-attorneys so non-attorneys could circumvent the California Foreclosure Consultant’s Act (California Civil Code section 2945-2945.11) that prohibited all loan modification service providers from taking fees in advance of work performed, except attorneys. As a result, hundreds of fake “law firms” sprung up in name only; licensed attorneys were not employed, only foreclosure consultants. Petitioner reported this fraud to Holly Fujie, the CSB President in 2009-2010 and Scott Drexel, CSB Chief Trial Counsel of the State Bar Court and Ms. Fujie assured me in a return email that she and Scott knew all about the problem amongst their attorney members.
f. Petitioner also reported about the California State Bar’s failure to prosecute for violations of, among other things: (a) Rules of Professional Conduct 1-320, prohibiting attorneys from sharing legal fees with non-attorneys; (b) Rules of Professional Conduct 1-400, the rules pertaining to how an attorney can advertise and solicit.
g. On or about March 1, 2009, Petitioner began to report about a very important issue relevant to consumers in foreclosure who had been defrauded by CSB-licensed attorneys: the California State Bar’s Client Security Fund and how it was formed (as a consumer protection arm of the CSB) to reimburse clients of CSB attorneys who had engaged in misconduct. Over the months it became apparent that the CSB was not regulating its attorney members, prosecuting them for misconduct, nor operating its Client Security Fund (CSB’s internal consumer protection agency) in the manner for which it was created.
h. Petitioner called for support amongst victims of loan modification fraud attorneys to form a Writ of Mandate against the California State Bar to command the CSB to open its Client Security Fund to victims of loan modification fraud perpetrated by its attorney members. Pursuant to Rule of Professional Conduct 1-400, every ad for a California attorney (whether it be print, television, or radio) has to clearly state, “Licensed by the California State Bar.” These fraudulent “law firms” were advertising with this statement but the CSB knew that in reality there were no attorneys practicing at these firms. As a result, the liability of the California State Bar was astronomical and a Writ of Mandate could easily have prevailed.
i. This is when Girardi, O’Brien, Layton and Noonen approached BKGG, James Parsa and Respondent to aid them in shutting down the Bad Biz Finder blog because it was significantly cutting into their criminal cash flow. Due to the fact that BKGG could not make a legitimate claim for defamation (particularly at the higher standard against Petitioner because everything Petitioner ever wrote was true, BKGG had to devise a alternative plan in connection with Respondent to make sure Petitioner did not succeed in the subject cases thereby giving her statements credibility and increasing the odds that others would follow her lead and file a Writ of Mandate against the California State Bar’s Client Security Fund.
19. To summarize, within a 12-month period of time, Petitioner was the subject of six civil actions and four criminal actions. All had two things in common: (a) They were all baseless, malicious actions with intent to vex and annoy; and (b) they were all designed to frighten, intimidate, and cripple Petitioner personally and professionally to make it impossible for her to continue her reporting.
20. Petitioner is a formidable consumer and tenant advocate. Her reporting was based on three major issues: (a) loan modification fraud against consumers in foreclosure and the California state agencies that failed to protect them; (b) the illegal, oppressive and unconscionable California residential lease agreements of Landlord/REIT, UDR; and (c) the rampant corruption in San Bernardino County courtrooms, law enforcement, and political arena. Petitioner was making a difference in the lives of California consumers and tenants, as well as oppressed citizens of San Bernardino County, and the California State Bar could not take a chance of her succeeding.
PETITION FOR WRIT OF MANDATE
Authenticity of Exhibits
21. The exhibits accompanying this petition include true copies of original documents on file with Respondent court. As stated, infra, in “Interests of Parties,” there is considerable doubt that the documentary evidence produced by BKGG in the Parsa Case is authentic, was obtained from authentic sources, and establishes meritorious, clear and convincing evidence of the argument for which it was produced.
22. No original reporter’s transcripts are included herewith as the February 24, 2011 hearing precipitating this Writ of Mandate was silent. Said hearing was on calendar to hear oral argument on Defendant’s Motion to Dissolve the Permanent Injunction [Civ. Code section 3424(a), Set Aside the Default Judgment, and request for Sanctions filed on February 24, 2011. However, prior to commencement of oral argument, Petitioner lodged her Challenge for Cause, Respondent received and acknowledged the Challenge for Cause, and stayed the Parsa Case until the issue of the challenge was resolved.
23. Although a stay was ordered in the case, on March 10, 2011, BKGG filed the Declaration of David A. Berstein Esquire Re Verified Statement and Challenge for Cause of Defendant Erin Baldwin Requesting Recusal or Disqualification of the Honorable Franz Miller,” (“Berstein Declaration “). Berstein nor BKGG has standing to file this or any other pleading in the Parsa Case because at the moment the Challenge for Cause was lodged and Respondent acknowledged it and stayed the Parsa Case, BKGG attorneys became witnesses to the Challenge for Cause, not litigators.
24. All exhibits are incorporated herein by reference as though fully set forth in this petition. The exhibits are filed concurrently herewith as Petitioner’s Appendix and are paginated consecutively from page 0001 through 0070. All page references in this petition are to that consecutive pagination.
25. Petitioner wishes to inform the Court that on two separate occasions during the six civil actions and four criminal actions (filed between January 26, 2009 – February 25, 2010), the sum total of Petitioner’s personal property was confiscated and not returned. The property included Petitioner’s legal documents in hard copy and computer form, documentary evidence in hard copy and computer form, handwritten notes and legal research. This fact places Petitioner at an unjust and significant disadvantage to defend this action as well as costly to replace those documents that are replaceable and handicapped in terms of those that are not.
a. On June 16, 2009, UDR, Inc., Petitioner’s landlord and Plaintiff in three of the above-referenced cases, evicted Petitioner without cause in retaliation for Petitioner forming a class action lawsuit against UDR on behalf of UDR’s California tenants in connection with Petitioner’s published reports about UDR’s illegal California residential lease agreements. On the date of her eviction, the Orange County Sheriff told Petitioner she had ten (10) days to return to recover her property.
b. However, on June 19, 2009 (three days later) UDR deemed Petitioner’s property “abandoned,” confiscated it, moved it to an offsite UDR storage facility, then later sold it to James Parsa to use as evidence against Petitioner. On September 13, 2010 at the hearing on contempt charges, BKGG disclosed the facts of this Parsa sale to Petitioner’s Public Defender, Martin Schwarz (“Schwarz”). BKGG offered to return Petitioner’s property if Petitioner agreed to cease blogging and not proceed with the contempt hearing. Petitioner did not accept said offer. Respondent dismissed the contempt charges against Petitioner due to the fact that BKGG admitted (1) it had no evidence to prove contempt against Petitioner, therefore opt not to proceed to trial; and (2) their client (Parsa Law Group) was no longer a going concern. Petitioner’s property is still missing.
c. On February 25, 2010, Petitioner was arrested by the San Bernardino Sheriff’s Department on the force of the $5,000 civil bench warrant issued by Respondent against Petitioner on the contempt charges in the Parsa Case (dismissed seven months later, see supra). Petitioner was incarcerated for thirty-five (35) days in West Valley Detention Center in San Bernardino County during which time the sum total of Petitioner’s personal property was once again confiscated and to date, has not been returned. The charge for which Petitioner was incarcerated was dismissed in its entirety.
Interests of Parties
26. Petitioner is a defendant in the Parsa Case, UDR Case and Cancilla-Laverty Case, all deemed related by Respondent on September 2, 2009 and vacated from two other judicial officers and joined as one under Respondent’s review.
27. Respondent is the judicial officer assigned for all purposes to the Parsa Case, the UDR Case, and the Cancilla-Laverty Case and failed utterly to respond fully to the Declaration of Petitioner in the Verified Statement and Challenge for Cause which, in and of itself, is grounds for disqualification.
28. Petitioner reserves the right to add other parties of interest at a future date.
No Adequate Remedy at Law
29. Following Respondent’s March 3, 2011 Verified Answer in response to Petitioner’s February 24, 2011 Challenge for Cause, Petitioner has no adequate remedy at law. A ruling on a motion to disqualify a judge is reviewable only by a timely petition for writ of mandate. CCP§170.3(d). Appeal is not permitted.
Chronology of Relevant Events
30. The Parsa Case was originally filed by BKGG on January 26, 2009, was modified by its First Amended Complaint on March 10, 2009, and modified once again by its Second Amended Complaint filed March 19, 2009. Petitioner was erroneously added to the action on March 19, 2009.
31. Petitioner was never properly named as a defendant in the Parsa Case. On March 17, 2009, BKGG requested that Respondent grant them Leave to Amend its First Amended Complaint for the express purpose of adding Petitioner to the action and said request was granted based on Respondent’s acceptance of two documents allegedly identifying Petitioner as a defendant:
a. BKGG claimed: “Defendant is the owner of the email address, badbizfinder@ aol.com.” BKGG substantiated this claim via a letter written to BKGG (at BKGG’s request) dated March 11, 2009 from Reed Smith attorney, Marilyn Moberg, Esq., who claimed she was counsel for AOL, LLC and had the authority to reveal the name of the owner of the email address. However, Mobley’s letter stated identified the owner of email@example.com as “Beverly Sullivan,” not Petitioner. Respondent allowed BKGG to add Petitioner to the Second Amended Complaint on the basis of this documentary evidence. [The March 11, 2009 Letter from Marilyn Moberg, Esq., is a part of the Appendix, Vol. I, Exhibit “G,” at page 0014].
b. BKGG claimed: “Defendant is the owner/operator of the blog, Bad Biz Finder, an unknown entity and sole defendant in the commencement of this action via Plaintiff’s Complaint dated January 26, 2009.” BKGG substantiated this claim via an unidentified and undated document produced by an unidentified party stating that the Bad Biz Finder blog was set up using I.P. address 22.214.171.124. A dynamic I.P. address can identify a geographical range of computers, but not a single user, and certainly not a defendant in an unlimited civil action for defamation. Respondent allowed BKGG to add Petitioner to the Second Amended Complaint on the basis of this documentary evidence. [The Unidentified and Undated Document from an Unidentified Party is a part of the Appendix, Vol. I, Exhibit “H,” at page 0015].
32. Further evidence that Petitioner was not properly named as a defendant in the Parsa Case and that Respondent and BKGG were cognizant of this fact is contained in two additional documents after Petitioner was added to the action:
a. On April 13, 2009, BKGG sought from Respondent a Court Order compelling Time Warner to produce information about Petitioner’s private home cable account. Respondent granted BKGG a Court Order that, in part, stated: “the information is necessary for plaintiff to identify what person or entity is responsible for the blogs, i.e., who or what Bad Biz Finder is.” Therefore, on April 13, 2009, nearly a month after Petitioner was added to the case, neither Respondent nor BKGG could justify adding Petitioner to the case. [The April 13, 2009 Notice of Ruling and Order is a part of the Appendix, Vol. I, Exhibit “I,” at page 0016].
b. On July 14, 2009 Respondent denied Defendant’s Motion to Set Aside the Default and stated the reasons as follows: “Plaintiff waived service defects by opposing on the merits; not clear who is moving party (upper left corner lists Baldwin, but body of notice says Moving Party is Bad Biz; unclear Baldwin has any authority to appear for Bad Biz …” Therefore, as late as July 14, 2009, Respondent was still unsure whether Petitioner had any connection with the blog, Bad Biz Finder. Nonetheless, two weeks later, on June 2, 2009, Respondent violated Petitioner’s constitutional rights by issuing a Permanent Injunction prohibiting her speech and a Default Judgment in the amount of $604,515.66. [The July 14, 2009 Minute Order with Tentative Ruling is a part of the Appendix, Vol. I, Exhibit “J,” at page 0018].
Basis For Relief
33. Code of Civil Procedure § 170.1(a)(6) requires disqualification of a trial judge if a person aware of the underlying facts might reasonably entertain a doubt that the judge would be able to be impartial. In addition, CCP §170.1(a)(1) requires disqualification when the judge has personal knowledge of disputed evidentiary facts which he learned from extra judicial sources.
34. Code of Civil Procedure § 170.3(c)(5) prohibits trial judges, if they decline to recuse themselves, from deciding the issue of their own disqualification. The only exception to this rule, CCP §170.4(b), permits a judge to strike a statement of disqualification if it was not timely filed or does not on its face disclose any legal ground for disqualification. As demonstrated herein, this exception does not apply. Petitioner timely filed its Statement and the admitted extra judicial ex parte communications with Respondent by State Bar Investigators on the face of the Statement, legal grounds for disqualification.
This Petition presents four issues:
35. Whether Respondent’s extrajudicial ex parte communications with Girardi, O’Brien, Layton, Noonen, BKGG, Parsa and others disqualify him from presiding over the Parsa Case, the UDR Case, and the Cancilla-Laverty Case;
36. Whether Respondent acted improperly by refusing to voluntarily recuse or disqualify himself requiring this Writ of Mandate and a request to transfer the Parsa Case and its related actions (the UDR Case, and the Cancilla-Laverty Case) to another judicial officer in another county.
37. The fact that Judge Kuhl represents a “biased” attorney and an “unbiased” attorney is required to review of Petitioner’s Challenge for Cause.
38. Whether, BKGG attorneys and other attorneys defined, but not limited to those defined, should be disciplined by a Special Prosecutor assigned by the California Supreme Court for their participation in extrajudicial ex parte communications, obstruction of justice, collusion, and other causes of action deemed appropriate.
SUMMARY OF REASONS FOR GRANTING WRIT
Respondent Miller is “Embroiled” in the Above-Stated Cases & Has Surrendered the Role of Impartial Fact Finder
39. Respondent is “embroiled” in the above-stated actions and as such:
“Surrenders the role of impartial fact finder/decision maker, and joins the fray.” (California Judicial Conduct Handbook § 2.01, p. 37). It can take the form of engaging in improper ex parte communication with counsel, acting in a way to bring about a specific result in the case, abusing the contempt powers and power to sanction, using improper procedures to “move the calendar,” or “simple loss of self-control.” (Ibid. fn. Omitted; see also Kloepfer v. Commission (1989) 49 Cal.3d 826.)
40. When grounds for judicial qualification exist, and the judge does not recuse himself or herself, on his or her own initiative or when challenged for cause, that refusal is a form of judicial misconduct. (See generally, California Judicial Conduct Handbook §§7.00 et seq., pp. 293-390.)
41. Most grounds for judicial disqualification are stated in CCP §170.1. That section requires disqualification of a judge when good cause exists for doing so.
“Statutes governing disqualification for cause are intended to ensure public confidence in the judiciary and to protect the rights of the litigants to a fair and impartial adjudicator…” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1070.)
However, most of the grounds specified in CCP §170.1 rarely occur, particularly in locations with large populations, such as a judge possessing personal knowledge of disputed evidentiary facts.
42. The general ground is more common however. Recusal should occur if:
“(A) For any reason… (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. (B) Bias or prejudice toward a lawyer [or in pro per litigant]may be grounds for disqualification.” (Code of Civ. Proc. CCP §170.1 (a)(6).)
There need not be a showing of actual inability to be impartial – only a doubt “reasonably entertainable” by, presumably an average person aware of the circumstances.
43. The right to exercise a peremptory challenge will disqualify the judge without having to meet the onerous burden of removal for cause. (Code of Civ. Proc. §170.6; see California Judicial Conduct Handbook, §7.10, p. 302). Petitioner filed a peremptory challenge pursuant to CCP §170.6 on September 4, 2009 following Miller’s ruling to relate the UDR Case and the Cancilla-Laverty cases against Petitioner together with the Parsa Case and join them all in Department C-14. Miller denied said challenge stating that it was not brought in a timely manner.
44. Judges sometimes engage in misconduct when confronted with an affidavit of prejudice. (McCartney v. Commission  12 Cal.3d 512, 525, 529; Canon v. Commission, supra, 14 Cal.3d 778, 786, 797.) The right to exercise a peremptory challenge is a substantial right and part of the state system of due process that helps ensure the right to a fair trial. (Stephens v. Superior Court  96 Cal.App4th 54, 61.) “Courts must refrain from any tactic or maneuver that has the practical effect of diminishing this important right.” (Hemingway v. Superior Court, supra, 122 Cal.App.4th 1148, 1158.)
Petitioner Timely Filed the Statement of Disqualification
45. Canon 3E of the Code of Judicial Ethics requires a trial judge to “disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no factual basis for disqualification.” The record nowhere reflects such a disclosure.
46. Petitioner’s Statement was timely filed and set forth clear grounds for disqualification. Petitioner accordingly requests that this Court issue a writ of mandate ordering Miller’s disqualification or, in the alternative, requiring that the question of his disqualification be heard on its merits by a different judge.
Petitioner’s Statement Discloses Legal Grounds for Disqualification under CCP §170.1
47. Respondent’s Verified Answer to Petitioner’s Challenge for Cause contains many misrepresentations of the truth, ignores certain points alleged, and underscores the necessity of Petitioner’s request for consideration by a different judge of a different county.
48. Respondent’s Verified Answer contains statements that gives cause to believe that (a) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial; (b) a failure to disqualify himself under these circumstances amounts to a denial of Petitioner’s due process rights and the right to a fair and impartial trial; and (c) illuminates the premise that it is not only the fact but the appearance of prejudice that should disqualify a judge:
“Defendant, Erin K. Baldwin, has brought the instant statement of disqualification in which she states I am disqualified from hearing the above-entitled matter because, according to Ms. Baldwin, I have had ex parte communications with the plaintiff and his attorneys, and with various other individuals and government entities that she refers to as ‘co-conspirators’ collectively. According to Ms. Baldwin’s disqualification statement, the ‘co-conspirators’ include Plaintiff Parsa Law Group, APC (Parsa) and its attorneys, the State Bar of California ; State Bar Investigators, Tom Layton and John Noon[e]n; …”
49. Paragraph 3 of Respondent’s Verified Answer states:
“To the extent that I have had any ex parte communications with Parsa’s counsel or any other representative of Parsa, those communications occurred during official proceedings within this case, and outside Ms. Baldwin’s presence due to her failure to appear and the entry of her default. I specifically deny that such communications involved any comments or discussion that might substantially interfere with a fair trial or hearing in this case.”
a. The May 29, 2009 Minutes in this action irrefutably state that Respondent conducted a chambers conference with BKGG attorneys present and that said chambers conference was unreported.
b. Petitioner did not appear at the May 29, 2009 hearing because the Court Clerk informed Petitioner of the Rejection Notice served on BKGG in reference to its Default Prove Up documentation and that the hearing would be set out at least two weeks. [A copy of the May 28, 2009 rejection notice as to BKGG’s Default Prove-up package is a part of the Appendix Vol. I, Exhibit “K,” at page 0020.]
c. It is irrelevant that Respondent qualifies what was said in the extrajudicial ex parte hearing. The fact that it was unreported, in chambers, and BKGG was present at a minimum. Since it was not reported one can only speculate what occurred. “I specifically deny that such communications involved any comments or discussion that might substantially interfere with a fair trial or hearing in this case.” This is the reason why extrajudicial ex parte communications are justification for recusal and/or disqualification.
50. Paragraph 4 of Respondent’s Verified Answer states:
“I have no recollection of ever having had any communications with the named State Bar investigators, Tom Layton and John Noonen. To the extent that I have ever communicated with either investigator, I specifically deny that such communications involved any comments or discussions that might substantially interfere with a fair trial or hearing in this case.”
a. “No recollection,” is not a denial.
b. Based on anonymous sources is has come to Petitioner’s attention that on or about May 29, 2009, James Parsa met with O’Brien, Layton, Noonen and Respondent to discuss a “deal” consisting of Parsa agreeing to be suspended from the practice of law for the period of two years. At the end of two years, in October of this year, he could re-apply for membership. In exchange he could keep $11 million in client trust account funds and the California State Bar would deny any claims that came up against him at the Client Security Fund
51. Paragraph 6 of Respondent’s Verified Answer states:
“To the extent that Ms. Baldwin’s disqualification statement alleges that a person aware of the facts might reasonably entertain a doubt that I would be able to be impartial in this matter, I specifically deny those allegations. Indeed, I denied plaintiff’s application for a temporary restraining order and preliminary injunction when Ms. Baldwin had not appeared in the case. I also required James Parsa to provide live testimony for the default prove up. At all times, I attempted to protect Ms. Baldwin’s rights, even when it appeared she was actively evading service of summons and participation in the lawsuit.”
a. On May 11, 2009, BKGG applied for an Order to Show Cause Re: Temporary Restraining Order and Preliminary Injunction against Petitioner; the hearing was scheduled for May 19, 2009. On May 18, 2009, Respondent entered a tentative ruling stating: “Determine whether plaintiff served the application on defendants; plaintiff shows reasonable likelihood of prevailing and irreparable harm; the problem is possible unconstitutional prior restraint (See Evans 162 A4 1157).”
b. At the moment Respondent posted that tentative ruling, he admitted he knew that he did not have jurisdiction over the case. Federal question jurisdiction in the United States law of civil procedure refers to a situation in which a United States federal court has subject-matter jurisdiction to hear a civil case because there is an alleged violation of the Constitution or law of the United States, or treaties to which the United States is a party. At that point Respondent should have recused himself. Instead, he pronounced that it was his obligation to protect the constitutional rights of Petitioner.
c. Therefore, as late as May 18, 2009, two weeks prior to the Court issuing a Permanent Injunction and Default Judgment against Petitioner, the Court acknowledged that the action possibly represented an unconstitutional prior restraint of speech and yet granted said Injunction and Judgment anyway.
d. A judge should perform the role of a neutral, impartial and unbiased judicial officer. If Respondent believed Petitioner’s rights were at jeopardy (“…At all times, I attempted to protect Ms. Baldwin’s rights …”), he had more than a duty to protect them, he had a duty to dismiss the case. In addition, Respondent does not provide any documentary evidence of his claim that Petitioner was “actively evading service of summons and participation in the lawsuit.” It would serve the interests of justice to identify the basis of this statement rather than take it on face value relying on the “appearance” of an alleged wrongdoing.
e. In fact, had Respondent truly been protecting Petitioner’s constitutional rights throughout the case, he would never have executed the June 2, 2009 Permanent Injunction and Default Judgment. This is evidenced by the fact that over a year later, on September 13, 2010, Respondent dismissed Contempt charges against Petitioner at Trial because the Injunction and Judgment were found to be unconstitutionally overbroad, void for vagueness, and a violation of Petitioner’s due process rights and right to free speech without prior restraint. [A copy of the September 1, 2010 Defendant’s Reply/Answer to the Order to Show Cause written and filed by Senior Public Defender, Martin F. Schwarz, is a part of the Appendix Vol. I, Exhibit “L,” at page 0021.]
52. Paragraph 7 of Respondent’s Verified Answer states:
“In no way am I biased or prejudiced in favor of or against any party in this proceeding. I am not predisposed to rule in any particular manner. In every case in which I preside, all rulings made by me are based strictly upon the facts and arguments officially presented to me and upon my understanding of the law.”
a. Respondent joined two additional unlimited civil defamation actions (the UDR Case and the Cancilla-Laverty Case) together with the Parsa Case for no good cause other than he was “stacking the deck” against Petitioner. In so doing, Respondent promoted and encouraged arguments that favored Plaintiffs while rejecting (or avoiding the mention of) arguments by Petitioner.
53. In addition, as Petitioner’s Challenge for Cause makes plain, recusal is required because “a person aware of the fact” that Respondent had extrajudicial ex parte communications with State Bar Investigators “might reasonably entertain a doubt that [he] would be able to be impartial” as the judge in this case. CCP § 170.1(a)(6)(C). The Statements of fact in the Verified Statement must be taken as true. As elaborated below, these are more than sufficient “legal Grounds for recusal” under CCP § 170.1, and they preclude any order striking Petitioner’s statement under § 170.4(b). Respondent’s answer to Petitioner’s Statement simply ignores them. Once again, the circumstances underscore the need for consideration by a different judge of a different county.
PETITION FOR WRIT OF MANDATE
PRAYER FOR RELIEF
Petitioner prays that this Court:
54. Holds Respondent accountable for his misconduct and finds that disqualification is appropriate under the circumstances; and, in the alternative, seek out an “unbiased judge,” in another county amendable to both parties that can, with an open mind and discretion sans prejudice and ulterior motive, decide this matter on its merits.
55. Holds the attorneys in this case responsible for their misconduct, fraud, perjury, corruption and collusion in implementing strategies designed to damage the reputation of and oppress Petitioner to achieve an unethical goal.
56. Make an order to return all of Petitioner’s property from James Parsa and Big Bear.
57. Grant such other relief as may be just and proper. DATED: March 17, 2011 ____________________________
ERIN K. BALDWIN
Petitioner, In Pro Per
I, Erin K. Baldwin, declare:
58. I am the Petitioner in this action and represent myself now and throughout this matter as an In Pro Per litigant and, as such, make this verification because I am familiar with the trial court proceedings giving rise to this Petition.
59. I have read the foregoing Petition, and it is true of my own knowledge, except as to those matters stated on information and belief, and as to those matters, I believe them to be true.
I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct and that this Verification was executed in Banning, California on March 17, 2011.
ERIN K. BALDWIN
Petitioner, In Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES
60. The face of Petitioner’s Statement demonstrates both timeliness and valid legal grounds for disqualification. Under CCP § 170.3, Respondent should have recused himself or referred the question of disqualification to an unbiased judge for decision. Respondent’s improper refusal to do either one necessitates relief by writ of mandate. [A copy of the February 24, 2011, Verified Statement and Challenge for Cause of Defendant Erin Baldwin Requesting Recusal or Disqualification of the Honorable Franz Miller and Referral to the Chief Justice of the California Supreme Court for Reassignment to an Unbiased Judge of Another County is a part of the Appendix Vol. I, Exhibit “M,” at page 0051.]
61. In view of the nature of the significant, important and obvious conflict, and the absence of a record showing disclosure and waiver, Petitioner has independently determined, as a matter of law that no reasonable mind could differ on the undeniable appearance of impropriety arising from Respondent’s involvement in the proceeding. Clearly, the facts of this case mandate the immediate removal of Respondent.
MEMORANDUM OF POINTS AND AUTHORITIES
Introduction & Preliminary Statement
62. Subdivision (c)(5) of section 170.3 provides: “No judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party. In every such case, the question of disqualification shall be heard and determined by another judge agreed upon by the parties who have appeared or, in the event they are unable to agree within five days of notification of the judge’s answer, by a judge selected by the chairperson of the Judicial Council . . . .” Petitioner’s Challenge for Cause requests that the matter be assigned to a different judge in a different county.
63. A biased decision maker is constitutionally unacceptable. (Withrow v. Larkin (1975) 421 U.S. 35, 46-47, 43 L. Ed. 2d 712.) 4 Canon 3E of the Code of Judicial Ethics provides: “In all trial court proceedings, a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question for disqualification, even if the judge believes there is no factual basis for disqualification.”
64. In addition, section 70.3, subdivision (b)(1) requires both on the record disclosure and a signed waiver by the parties and their counsel filed in the record. The right to a fair and unbiased decision maker is codified in section 170, et seq. As stated by the Honorable David M. Rothman in the California Judicial Conduct Handbook, at pages 215-216, “Judges can avoid some disqualification problems by following a policy of rigorous disclosure of information relevant to disqualification. . . . [P] . . . [P] The purpose of the requirement of non-disqualifying disclosure is, in part, to give the attorneys information they would need for an affidavit of prejudice . . . . The purpose is to reaffirm the integrity and impartiality of the court. Nothing provides stronger evidence to the parties of that impartiality than open disclosure. In addition, because the parties are intimately aware of all the circumstances of their case, they are in a better position to bring to the judge’s attention information that might cause the judge to consider recusal.”
65. “A judge who determines himself or herself to be disqualified after disclosing the basis for his or her disqualification on the record may ask the parties and their attorneys whether they wish to waive the disqualification . . . . A waiver of disqualification shall recite the basis for the disqualification, and is effective only when signed by all parties and their attorneys and filed in the record.” (§170.3, subd. (b)(1))
66. “We therefore concluded there is no issue of fact requiring further superior court proceedings and decided to avoid further delay in the case by applying, in the first instance (§§170.1, subd. (c) & 923)), the well-established ‘reasonable person’ standard for judicial disqualification.”
67. “At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.” (§170.1, subd. (c).) A reviewing court may “make any order appropriate to preserve . . . the effectiveness of the judgment subsequently to be entered, or otherwise in aid of its jurisdiction.” (§ 923.)
68. In pertinent part, section 170.1 provides: “(a) A judge shall be disqualified if any one or more of the following is true: [P] . . . [P] (6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
69. The standard for disqualification set forth in subdivision (a)(6)(C) of section 170.1 “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 . . . actual bias.” (United Farm Workers of America v. Superior Court (1985) 170 Cal. App. 3d 97, 104, 216 Cal. Rptr. 4.) The decision on disqualification for cause is based neither upon the judge’s personal view of his own impartiality nor upon the litigant’s partisan view of the matter (id. at p. 105); it is based upon an objective consideration of how the participation of a particular judge in a specific case appears to the average person on the street. (Id. at p. 104.) “The issue is not limited to the existence of an actual bias. Rather, if a reasonable [person] would entertain doubts concerning the judge’s impartiality, disqualification is mandated.” (Ibid.)
70. In Pacific Etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal. App. 3d 72, 147 Cal. Rptr. 44, the court articulated a definition of prejudice similar to that subsequently codified in section 170.1: ” ‘ ” . . It is not only the fact but the appearance of prejudice that should disqualify a judge. This is the rule that appeals to the reason of the Constitution. . . . It is not the fact of prejudice that would impair the legitimacy of the judiciary’s role but rather the probable fact of prejudice, i.e., the appearance of prejudice. The truth of few, if any, ultimate ‘facts’ of human existence are established to that point of complete certitude which eliminates all plausible doubt. A fact as difficult of ascertainment as any person’s ‘prejudice’ is seldom, if ever, proven so completely that reasonable persons might not still disagree. And the mere allegation or good faith belief that a fact is true may be sufficient to cause reasonable doubt. Since the legitimacy of the Court’s role is essentially a perception of the people, in whose secure confidence the courts must remain if their powers are to be maintained, it follows that merely probable or even alleged facts or a good faith belief in such facts may be sufficient to disqualify a judge.” ‘ ” (Pacific Etc. Conference of United Methodist Church, supra, 82 Cal. App. 3d at p. 88, quoting Solberg v. Superior Court [(1977)] 19 Cal.3d 182, 193, fn. 10, 137 Cal. Rptr. 460.)
71. The legislative purpose of subdivision (a)(6)(C) of section 170.1 is to require disqualification where a judge’s impartiality might reasonably be challenged because “public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case.” (United Farm Workers v. Superior Court, supra, 170 Cal. App. 3d at p. 103.) In other words, if a reasonable person aware of the facts and circumstances would question the impartiality of the judge, disqualification of that judge is mandated. (§170.1, subd. (a)(6)(C).) The question is whether the record discloses a basis for a reasonable person to doubt the ability of the judicial officer to maintain impartiality. (Leland Stanford Junior University v. Superior Court (1985) 173 Cal. App. 3d 403, 409, 219 Cal. Rptr. 40.)
72. In the past, the basis for disqualification due to bias was that a judge will not be disqualified unless the effect of his interest can be predicted in advance. (Higgins v. City of San Diego, 126 Cal. 303 (1899)). However, actual bias has not been the standard since 1984 when the Legislature changed the standard to require only that “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (§ 170., subd. (a)(6)(C).)
73. The standard for disqualification is clear: If a reasonable person aware of the facts and circumstances would question the impartiality of the judge, disqualification of that judge is mandated by section 170.1, subdivision (a)(6)(C).
Application of Standard for Recusal to Facts
74. Contrary to Respondent’s apparent belief in his own ability to be impartial, the standard is not whether an individual judge has an objective or subjective belief he can be impartial. The applicable standard is whether a reasonable person aware of the facts and circumstances would question the impartiality of the judge.
75. Actual bias is not required. The standard is not whether Respondent has an objective or subjective belief he can be impartial. The standard is whether a reasonable person who knew Respondent’s conduct while presiding over the proceedings in the Parsa Case, the UDR Case, and the Cancilla-Laverty Case would suspect his ability to be impartial.
76. This is not to say Respondent actually has a bias in the case. The problem is that, irrespective of whether he actually is impartial, a person aware of the facts would reasonably suspect his ability to be objective. Nothing more is needed to require recusal.
MEMORANDUM OF POINTS AND AUTHORITIES
77. A peremptory writ of mandate should be issued due to the factual basis that would make a person aware of the facts and circumstances of the matter doubt Respondent’s ability to be impartial (§ 170.1, subd. (a)(6)(C)): and (3) arrange for transfer of the coordinated cases to a different judicial officer.
78. As elaborated below, Petitioner’s Statement sets forth more than sufficient legal grounds for disqualification to preclude an order striking the Statement under CCP § 170.4(b). On its face, Petitioner’s Statement discloses numerous reasons why an objective person aware of that fact might “reasonably entertain a doubt that Respondent would be able to be impartial.” CCP § 170.1(a)(6)(C). That being so, Respondent is disqualified. At minimum, he was required to refer the question of his disqualification to another judge for decision. CCP § 170.3(c)(5).
Respondent Improperly Decided the Merits of His Own Disqualification
80. Petitioner’s Statement sets forth “legal grounds for disqualification” of Respondent under CCP § 170.1(a)(6) and Petitioner has also stated legal grounds for disqualification under CCP §§ 170.1(a)(1) (personal knowledge of facts involved in the case from an extra judicial source) and 170.1(a)(3) (financial interest in the case). Since he did not recuse himself, Respondent was required to refer the issue to a different judge for decision. CCP § 170.3(c)(5) unequivocally states: “No judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party In every such case, the question of disqualification shall be heard and determined by another judge….”
81. Respondent improperly decided the merits of his own disqualification. To ensure that the disqualification statutes serve their purpose of maintaining public confidence in the fair administration of justice, this Court should zealously enforce the rule that judges may not decide the merits of their own disqualification.
Respondent Largely Ignored the Legal Grounds for Disqualification that Petitioner’s Statement Urged
82. Second, although Petitioner has the burden to establish a legal basis for disqualification, it need only establish one of the grounds enumerated in CCP § 170.1. 83. Respondent’s subjective insistence that he will remain impartial in this setting also misses the point. In the words of the United States Supreme Court: “We must continuously bear in mind that ‘to perform its high function in the best way ‘justice must satisfy the appearance of justice.’’” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988) (citing In re Murchison, 349 U.S. 133, 136 (1955)) (emphasis added).
84. The standard under § 170.1(a)(6)(C) “is fundamentally an objective one.” United Farm Workers of America, AFL-CIO v. Superior Court, 170 Cal.App.3d 97, 104 (1985). “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.” Id. “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.” Id. (quoting In re United Stated, 666 F.2d 690, 694 (1st Cir. 1981).) “[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 Farm Workers, 170 Cal.App.3d at 104 (quoting Potashnick v. Port City Const. Co., 609 F.2d 1101, 1111 (5th Cir.1980)).
85. As the California Supreme Court has observed: “It is often stated that it is not only the fact but the appearance of prejudice that should disqualify a judge. This is the rule that appeals to the reason of the Constitution …. [I]t is not the fact of prejudice that would impair the legitimacy of the judiciary’s role but rather the probable fact of prejudice, i.e., the appearance of prejudice… Since the legitimacy of the Court’s role is essentially a perception of the people, in whose secure confidence the courts must remain if their powers are to be maintained, it follows that merely probable or even alleged facts or a good faith belief in such facts may be sufficient to disqualify a judge.” Soldberg v. Superior Court, 19 Cal. 3d 182, 193, n.10(1977)(italics in original text, bold italics added).
86. Petitioner did not lightly make its decision to file a Statement of Disqualification against Respondent. But as the next section elaborates, a reasonable and objective observer aware of Respondent’s extrajudicial ex parte communications which violated the Canons of Judicial Ethics, the allegations made by Petitioner, and the factual issues and claims to be decided in the Coordinated Proceeding could not held but to doubt that Respondent could be impartial. CCP § 170.1(a)(6)(C).
Given Respondent’s Extrajudicial Ex Parte Communications Which The State Bar Investigators Admitted, A Person Might Reasonably Entertain Doubts That He Would Be Able To Be Impartial
87. Respondent fails to mention his communications, past and present and specifically in regard to the subject cases. and with California State Bar Investigators, Layton and Respondent’s Authorities Are Inapposite: Citing CCP § 170.1(a)(6)(B), Respondent asserts that his lack of subjective bias makes disqualification unnecessary. But as already noted, that is not the issue. CCP § 170.1(1)96)9B) requires disqualification where a judge subjectively doubts his or her own ability to be impartial. It does not preclude disqualification where the judge subjectively disclaims any such doubts. Whatever a judge’s subjective views, § 170.1(a)(6)(C) independently requires disqualification when “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
88. Indeed, failure to disqualify in these circumstances amounts to a denial of due process. A judge’s “direct, personal, substantial, [and] pecuniary” interest in a case directly implicates the due process right to an impartial tribunal. When a judge effectively acts as “a judge in his own case,” a litigant is deprived of that Constitutional protection even if only the “appearance of justice” is compromised. Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972).
DATED: March 17, 2011 ____________________________
ERIN K. BALDWIN
Petitioner, In Pro Per
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using proportionately 13 point Times New Roman typeface. According to the “Word Count” feature in Microsoft Word for Windows software, this brief contains 10,591 words.
I declare under the penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed at Banning, California on March 17, 2011.
DATED: March 17, 2011 ____________________________
ERIN K. BALDWIN
Petitioner, In Pro Per