Filed 9/26/18 Hansen v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioners Louise Hansen and Tracy Hansen, individually and doing business as Cozy Cottage Rentals (hereinafter collectively referred to as Hansen) filed a petition for a peremptory writ of mandate (and a related request to stay the trial court proceedings), seeking to set aside an order granting a supplemental motion to disqualify Honorable Clayton L. Brennan. We agree with Hansen that the respondent superior court erred in granting the supplemental motion for disqualification and that the disqualification order should be vacated. Accordingly, we shall issue a peremptory writ of mandate, and dismiss as moot the request for a stay of the trial court proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Hansen and real parties in interest Judith Kahn and Robert Kirby (hereinafter collectively referred to as Kahn) own adjoining properties on the Mendocino coast that are part of a four-lot subdivision subject to certain covenants, conditions, and restrictions (CC&Rs). Kahn filed a lawsuit against Hansen seeking a declaration that the CC&Rs prohibited the rental of a cottage on Hansen’s parcel, even when rented in conjunction with the main home. The issues are specific to the subdivision and the CC&Rs. The matter was assigned to Judge Brennan, who entered various orders, including temporary restraining orders against Kahn and an order denying Kahn’s motion for summary adjudication. Kahn filed two Code of Civil Procedure[1] section 170.1 challenges to disqualify Judge Brennan, both of which were denied.

This petition arises from a third supplemental motion for disqualification under section 170.1, which was granted (disqualification order). The sole fact on which the challenge was made was that Judge Brennan owns a residence on the Mendocino coast that he “rented out as a vacation rental.” Kahn contended Judge Brennan was obliged to disclose his status as the owner of vacation rental property. In his verified answer to the challenge, Judge Brennan confirmed that he owns “a residence which [he rented] out as a vacation rental,” and in which he also resides alternatively with a residence in Ukiah, California. Judge Brennan stated he did not disclose his status as an owner of a vacation rental property because it was not “materially different from any other situation wherein a bench officer owns real property and the parties before that officer are litigating a dispute involving the proper use of their real property.”

Contra Costa County Superior Court Judge Susanne M. Fenstermacher (hereinafter respondent) was assigned to decide the supplemental motion for disqualification. Respondent found that, pursuant to canon 3E(2)(a) of the California Code of Judicial Ethics (canon 3E(2)(a)),[2] Judge Brennan had a duty to disclose the fact that, like Hansen, he also owns a residence on the Mendocino coast that he rents out as a vacation rental. The disqualification order further stated that had Judge Brennan made the disclosure, “the parties would have heard information the Judge considered which would have provided them the chance to consider if there is a basis for disqualification pursuant to Code of Civil Procedure [section] 170.3(c). In this case the Plaintiffs were not afforded that opportunity. [¶] . . . Plaintiffs would also have had the opportunity to either waive disqualification or bring a motion pursuant to Code of Civil Procedure [section] 170.3(c)(1).” Respondent ruled that Judge Brennan’s disqualification is required under section 170.1(a)(6)(A)(iii), which provides that a judge shall be disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

To require disqualification under section 170.3(c)(1), there must be a legitimate claim that the judge should be disqualified pursuant to section 170.1. On the record before us, Judge Brennan does not have any financial or other interest or relationship that would require section 170.1 disqualification. The sole section on which the order relies is the general provision that “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (§ 170.1(a)(6)(A)(iii).) A judge’s mere ownership of other rental property does not create a reasonable doubt as to the judge’s impartiality. The California Judicial Conduct Handbook distinguishes those cases in which disclosure is required from circumstances such as that posed by Judge Brennan’s occasional rental of his residence. (Rothman, Cal. Judicial Conduct Handbook (3d ed. 2007) p. 382 (Handbook).) Commenting on the application of sections 170.1 (particularly subdivision (a)(6)(A)) and 170.5, and canon 3E(2), the Handbook states: “For example, in a landlord-tenant dispute, the fact that a judge owns rental property need not be disclosed and could not be a basis for the judge to be disqualified, provided, of course, that the ownership of rental property has not caused the judge to become biased in such cases, which would require the judge to recuse, not just disclose.” (Handbook, supra, p. 382 & fn. 322, citing Cal. Judges Assoc., Judicial Ethics Update (1999) p. 2.) In this case the issues presented by the declaratory relief complaint and related litigation are specific to the parties’ subdivision and its CC&Rs. The allegations in the complaint present no issues likely to have any bearing on the use or rental of Judge Brennan’s property. Judge Brennan’s verified answer resolves every concern canon 3E(2) and sections 170.1 and 170.3 are designed to address.

In sum, under the circumstances here, the supplemental motion to disqualify Judge Brennan should have been denied. Judge Brennan had no duty to disclose the fact of his ownership of vacation rental property, which is not at issue in this lawsuit, and a person aware of the judge’s property ownership would not reasonably entertain a doubt that the judge would be able to be impartial.

We have reached our decision after notice to all parties that we might act by issuing a peremptory writ in the first instance and after considering opposition filed by Kahn. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Hansen’s right to relief is obvious and no purpose would reasonably be served by plenary consideration of the issue. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241.)

DISPOSITION

Let a peremptory writ of mandate issue directing respondent superior court to vacate its order granting the supplemental motion for disqualification, and to enter a new order denying the supplemental motion for disqualification. Our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Petitioners’ request for a stay is dismissed as moot. The parties shall bear their own costs.

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Ross, J.*

We concur:

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Pollak, Acting P.J.

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Jenkins, J.

A154998