California Cases October 13, 2020: Patel v. Decarolis

Case Description

ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY CHIEF JUDGE PHILLIP GUTIERREZ MADE PURSUANT TO 28 U.S.C. § 455 [DE-112.]

On September 9, 2014 Plaintiff filed a complaint for damages against two attorneys, their respective law firms and a Los Angeles Superior Court judge, sued in his judicial capacity. [DE-1]. As a matter of routine random assignment, the case was placed on the docket of the Honorable George Wu. Plaintiff was in the midst of a contentious divorce proceeding and the defendant lawyers represented each of the warring spouses. The defendant superior court judge had been assigned to handle

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the marital dissolution matter. Apparently unhappy with how matters proceeded in superior court, particularly with respect to the award of custody of his minor children, Plaintiff filed the instant matter in federal court alleging civil rights violations. Motions to dismiss and to compel arbitration were made, granted and affirmed on appeal. [DE-96, 97.] (July 3, 2017).

On December 27, 2019 Plaintiff filed a rather curious motion styled "Notice of Motion and Motion to Enter Arbitration Settlement, Relief from Applicable Final Orders and to Merge and Consolidate his other [two] Civil Cases with This Case [DE-100]. First, the malpractice claim he had filed against his family law attorneys had not settled. It was ordered into arbitration were an award had been entered against him and in favor of the attorneys, perhaps because he failed and refused to participate in the arbitration hearing. Frankly, it is unclear what remains of this case. Judge Wu had dismissed the 1983 action against the wife's attorneys under Noerr-Pennington . The claim against the superior court judge was dismissed on the basis of absolute judicial immunity. The claim against his own attorneys was ordered into arbitration. It would appear from the record that all remaining of that matter is confirmation of the arbitration award. In any event, in early January, 2020 he withdrew the motion. [DE-105.]

Following eight months of inactivity, on August 24, 2020 Plaintiff filed the instant Motion to Disqualify United States District Judge George Wu. As required by statute, General Order 19-03, and Local Rule 72-5, the matter has been assigned to this Court for determination. [DE-108.]

There are two federal statutes enacted to assure that litigants receive a fair trial before an impartial judge, 28 U.S.C.§§144 and 455. Section 455 provides that

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any judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. The section also provides specific examples of situations where a judge's impartiality might be questioned, for example when the judge might have a financial interest that could be affected by the outcome of the matter, or circumstances that if known, might cause a reasonable person to question the judge's impartiality.

Section 144 provides: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."

" The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists , and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith." (Emphasis added.).

Here, the motion is accompanied by a Declaration and therefore will be treated as if brought under section 144. It is in the area of "facts" that the affidavit is woefully inadequate.

The Motion is a model of brevity, perhaps too much so. It is this Court's first and only experience with a one-page memorandum of points and authorities. Plaintiff would be forgiven for expending a few more pages of explanation so as to informed the Court of the factual basis for the motion and the facts which have led Plaintiff to conclude the trial judge is biased against him.

"An affidavit filed pursuant to [Section 144] is not legally sufficient unless it specifically alleges facts that fairly support the contention that the judge exhibits bias

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or prejudice directed toward a party that stems from an extrajudicial source. See Carignan , 600 F.2d 762; Azhocar , 581 F.2d 735, 738-40. The motion and affidavit filed by Sibla contain only Sibla's conclusions and are devoid of specific fact allegations tending to show personal bias stemming from an extrajudicial source. Consequently, the district judge correctly rejected the motion and affidavit as legally insufficient. See id.; ( Bennett , 539 F.2d at 51.)." U . S . vs . Sigla 624 F.2d 864, 868.

It is against this standard that Plaintiff's Declaration is measured. In it, Plaintiff has asserted that Judge Wu "is biased in favor of California lawyers and California judges against Californians who supported President Obama during his second term in office and president trump during his first term in office." It should be noted that in the original complaint filed in this action Plaintiff identified himself as an attorney licensed to practice in California. [DE-1, ¶ 12.] This was dropped in the First Amended Complaint and replaced by the assertion that he is now licensed to practice in the State of Nevada. Thus, it would appear that at the time he filed the original complaint, he fell within the "favored group".

The relief he seeks is "against the abuses of the California legal profession against Patel merely for Plaintiff's support of Article II of the United States Constitution." (Mtn. at p.3. ¶I.)

More to the point of the motion to disqualify, he alleges disqualification is mandated for "judges who are unwilling to recognize the rights of U.S. citizens and residents to support and give allegiance to Article II of the U.S. Constitution." Further, "Judge Wu favors his colleagues in the California legal profession and California judiciary at the expense of citizens who (like Patel) are committed to Article II of the U.S. Constitution. Disqualification is the correct remedy for judges who (like Judge Wu) are prejudiced against the Executive Branch of U.S. Government. Article III, United States Constitution." (¶ III.)

Unstated is how Judge Wu learned, if he did, about Plaintiff's devotion to Article II of the Constitution. Also unstated is how Judge Wu learned of Plaintiff's

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preference between the nominees for president in the last two general elections. This is not information that would be relevant to the trial judge in any case. The attached Declaration of Anthony A. Patel offers a bit more information, but only a bit. Patel alleges that based on his study of his [Judge Wu's] record in this Court, he believes Judge Wu is biased against him because of his allegiance to Article II. Continuing, "in a related civil proceeding, Judge Wu issued an order . . . refusing to accept transfer of the other case. Judge Wu's own biased ruling and prejudice against me in this case are part of the reason why lawyers and judges in California discriminated against me in those other civil cases." He then goes on to discuss his voting record in the last two presidential elections and his support for the President of the United States regardless of who occupies the office.

Apparently Article II plays an important role in Plaintiff's assessment of Judge Wu's prejudice against him, yet he fails to explain his connection to Article II. It might have been somewhat more helpful to the Court had Plaintiff explained his affection for Article II apparently to the exclusion of the other two articles which complete the establishment of the three branches of the federal government.

The only action taken by Judge Wu, according to this motion, is Judge Wu having declined to accept transfer of Patel v . Charles Robinson , et al , Case No. 2:19-cv-02851. As a matter of practice within the Central District of California, a case may be transferred to a judge who had handled an earlier case which arose out of the same transaction or events as the later case, or involves the same or similar questions of law or fact or would otherwise involve a duplication of effort if heard by a different judge. The Robinson case had no similarity to the instant case except for the fact that the later case involved Patel suing over a dozen law firms in addition to the president and officials and Regents of the University of California. The Robinson case involved, among other matters, his frustrated attempt to run for United States Senate. The current case, however, involves his dissatisfaction with the litigation directed toward the dissolution of his marriage. There is nothing noteworthy about

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Judge Wu declining to accept transfer of the Robinson case and his doing so in no way harmed Plaintiff Patel. This Court is unable to discern, and he does not explain, how Judge Wu's decision not to accept transfer of the Robinson case demonstrated bias against him. Indeed, given Plaintiff's desire to have Judge Wu disqualified from presiding over this case, one is hard-pressed to understand why he would complain about Judge Wu declining to preside over another one of his cases.

In the final analysis, the Court is unable to articulate a logical reason to conclude there exists any level of bias against Plaintiff or favoritism towards another party to the instant litigation. Frankly, attempting to construct a rational argument as to why a judge cannot be impartial in a case is not the role of the Court, but a burden which must be shouldered by the party bringing the motion to disqualify. (28 U.S.C. § 144.) Here, Plaintiff has not met that burden.

Nothing constructive can come of characterizing the instant motion. Suffice it to say that disconnected conclusory assertions of bias, with literally no factual support, are insufficient to convince this Court that a prima facie case of bias has been made. For that reason, the motion is DENIED.

IT IS SO ORDERED.

DATED: October 13, 2020.

/s/ _________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE