NORTH BEVERLY PARK HOMEOWNERS ASSOCIATION v. BISNO

Filed 2/13/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEAL from a post-judgment order of the Superior Court of Los Angeles County, Rodney E. Nelson, Rex H. Minter and Michael L. Stern, Judges.  Affirmed.

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

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

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  In an unpublished opinion, we affirmed the judgment.[2]  The Bisnos' petition for review to the California Supreme Court was denied, and the remittitur issued on October 13,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 disqualification 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 preliminary 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 (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 â€