PERLUSS, P. J.
ORIGINAL PROCEEDINGS in mandate.Super. Ct. No. BD646058 Erick L. Larsh, Judge. Petition granted.
Bley & Bley, Samantha Bley DeJean, Stefani Radist; Greines, Martin, Stein & Richland, Robert A. Olson and Jeffrey Raskin for Petitioner.
Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Jillian N. London; Young Spiegel & Lee, Lance S. Spiegel; Elkins Kalt Weintraub Reuben Gartside, Anne C. Kiley; Young, Spiegel, Hillman & Hosp, Lance S. Spiegel and Anne C. Kiley for Real Party in Interest.
PERLUSS, P. J.
Angelina Jolie filed a statement of disqualification challenging Judge John W. Ouderkirk (Ret.), the privately compensated temporary judge selected by Jolie and William Bradley Pitt to hear their family law case, based on Judge Ouderkirk's failure to disclose, as required by the California Code of Judicial Ethics, several matters involving Pitt's counsel in which Judge Ouderkirk had been retained to serve as a temporary judge. Orange County Superior Court Judge Erick Larsh, sitting by assignment to decide the issue, ruled Jolie's statement of disqualification was untimely and the new information disclosed by Judge Ouderkirk would not cause a person aware of the facts to reasonably entertain a doubt that he was unable to be impartial.
In her petition for writ of mandate and supporting papers, Jolie argues her statement of disqualification was timely; Judge Ouderkirk's failure to make mandatory disclosures violated his ethical obligations; and, under the circumstances here, Judge Ouderkirk's ethical breach, when considered with the information disclosed concerning his recent professional relationships with Pitt's counsel, might cause an objective person, aware of all of the facts, reasonably to entertain a doubt as to Judge Ouderkirk's ability to be impartial. We agree, grant the petition and direct the superior court to vacate its order of November 16, 2020 denying the statement of disqualification and to enter a new order disqualifying Judge Ouderkirk from serving as a temporary judge in the underlying matter.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Selection of Judge Ouderkirk To Serve as a Temporary Judge and the Initial Disclosures
Jolie filed for dissolution of her marriage to Pitt on September 19, 2016. The parties selected Judge Ouderkirk, who had officiated at their wedding in France in August 2014, to serve as a temporary judge hearing the matter; and the superior court appointed Judge Ouderkirk as a temporary judge for all purposes on January 9, 2017.
On January 3, 2017, prior to Judge Ouderkirk's appointment, both Judge Ouderkirk and his alternative dispute resolution provider, Alternative Resolution Centers (ARC), made disclosures regarding privately compensated matters in which Judge Ouderkirk had been involved and in which Jolie's counsel, Laura A. Wasser, or her law firm, Wasser Cooperman & Mandles, or Pitt's counsel, Lance S. Spiegel, or his law firm, Young Spiegel & Lee, had served as counsel for one of the parties. Judge Ouderkirk disclosed one such completed matter involving Wasser. He disclosed five completed matters involving Spiegel and two additional matters in which a lawyer from Spiegel's firm had represented one of the parties. Judge Ouderkirk stated he was awaiting appointment in one additional case. Judge Ouderkirk's disclosure letter also stated, “I will continue to consider accepting other cases as other additional cases may arise from time to time while the Jolie/Pitt case is still pending. Such other cases might involve a party, lawyer, law firm and/or witnesses involved in the Jolie/Pitt matter.”
ARC's disclosure letter identified six completed cases in which Spiegel or his law firm had been counsel for one of the parties, but only two of those cases were not included in Judge Ouderkirk's disclosure report (making a total of 10 cases involving Spiegel or his firm, nine of which were completed). ARC did not identify any cases in which Judge Ouderkirk had been retained that involved Wasser.
The ARC letter, which erroneously referred to Judge Ouderkirk's role as a neutral engaged by the parties to act as an arbitrator (and, therefore, subject to a different set of rules regarding disclosure), contained the following statement: “To further comply with CCP section 1281.85 as adopted by the Judicial Council of California and effective as of July 1, 2002 ARC makes the following disclosure: If selected as a neutral arbitrator the Arbitrator selected in the instant matter will entertain and accept offers of permitted employment or new professional relationships from parties, attorneys, or law firms involved in a case while this case is pending. If the neutral arbitrator is appointed on this case, the neutral arbitrator will also inform the parties of any subsequent offer while this case is pending.”
2. Extension of Judge Ouderkirk's Appointment and the 2018 Disclosures
Judge Ouderkirk's initial appointment expired on December 31, 2017. The parties and their counsel stipulated to the extension of that appointment, and on February 6, 2018 the superior court approved the stipulation and appointed Judge Ouderkirk to serve as a privately compensated temporary judge through December 31, 2018.
On May 8, 2018, after a new attorney associated in with Wasser as counsel for Jolie (Priya Sopori of Greenberg Glusker), ARC wrote counsel noting a hearing in the case was scheduled for May 16, 2018 and identifying six cases in which Judge Ouderkirk had been retained that involved counsel for the parties. Three of the six matters had previously been disclosed in ARC's January 2017 letter. Of the three new matters, both Spiegel and Wasser were counsel in one; Spiegel was counsel in another (In re Marriage of Levitan); and Wasser's firm represented a party in the third.
Samantha Bley DeJean replaced Wasser as Jolie's lead counsel in August 2018. In response ARC again sent a disclosure letter to counsel, which repeated the disclosures from its May 8, 2018 letter. Judge Ouderkirk on August 30, 2018 also sent a supplemental disclosure letter. Judge Ouderkirk stated he had nothing to disclose regarding DeJean or the Law Offices of Bley and Bley and had been retained in a matter involving another of Jolie's new lawyers but the case had settled and his only participation was to sign the judgment. He also reported he had presided over the trial in the matter for which he had been awaiting appointment in January 2017. Judge Ouderkirk's letter again advised the parties, “I will continue to consider accepting other cases as other additional cases may arise from time to time while the Jolie/Pitt case is still pending. Such other cases might involve a party, lawyer, law firm and/or witnesses involved in the Jolie/Pitt matter.”
3. Case Developments
In October 2018 the parties and their counsel (DeJean and Spiegel) stipulated to an extension of Judge Ouderkirk's appointment through June 30, 2019. The superior court approved the stipulation on November 5, 2018. The appointment was again extended by agreement and court order in November 2018 through December 31, 2019 and once again in September 2019 to the earlier of December 31, 2020 or six months following entry of judgment on all reserved matters (or through completion of any requests for order pending on the date the appointment would otherwise expire).
A judgment for custody of the children was entered on November 21, 2018. A judgment for dissolution of marriage, status only, was entered on April 12, 2019. On June 20, 2020 Pitt filed a request for order seeking to change the custody and visitation provisions of the November 2018 judgment and requesting an evidentiary hearing. Jolie opposed the request. Trial was set for October 5, 2020.
4. The Request for Additional Disclosures
On July 21, 2020, after receiving Pitt's request for a new custody order and nearly two years since Judge Ouderkirk had made any disclosures, DeJean wrote ARC inquiring about additional matters in which Judge Ouderkirk may have been retained in which Pitt's counsel was also involved. ARC identified two new matters that were active into 2020 (Merade, in which Spiegel was counsel of record, and Hankey, which involved Anne C. Kiley, Spiegel's cocounsel for Pitt); a previously identified matter in which a hearing had been held in 2019 (Levitan); a 2017 case (Lally-Arena) that had not previously been disclosed; and a second, completed 2017 case (Fisher), which had been disclosed.
Upon receipt of ARC's disclosures, DeJean wrote Judge Ouderkirk asking for details of the matters included in the ARC letter, requesting that Judge Ouderkirk identify any additional matters in which he had been involved with Spiegel, Kiley or their law firms, reminding Judge Ouderkirk of his duties of disclosure and stating, “Such ongoing professional relationships for privately compensated judicial or quasi-judicial officers create an appearance of impropriety.”
In his response Judge Ouderkirk made several corrections and additions to matters identified in the ARC disclosure. As to Levitan, which Judge Ouderkirk described as “remarkably high value and hotly contested, ” Judge Ouderkirk stated the case had been reported to him as settled. His involvement prior to that time was extremely limited. His appointment had thereafter been extended in 2019 to decide a postjudgment reserved financial issue. That issue was never presented to him. It was subsequently established that Spiegel had requested a further extension of Judge Ouderkirk's appointment in Levitan; that request was opposed and ultimately denied by the court.
According to Judge Ouderkirk, Merade was a single-issue custody matter that required only “a few hours of court time.” The engagement began in April 2019 and ended in February 2020. Inclusion of Lally-Arena in the ARC disclosure was a mistake; Spiegel's firm was not involved. Finally, Judge Ouderkirk explained the Hankey case, where his involvement began in 2017 and continued until his appointment expired on June 1, 2020, had not previously been disclosed because Kiley did not substitute in until December 2019 (as the most recent of her client's many new lawyers).
5. Jolie's Efforts To Disqualify Judge Ouderkirk
On August 7, 2020, two days after receiving Judge Ouderkirk's response, Jolie asked Judge Ouderkirk to recuse himself based on the undisclosed ongoing professional relationships with Pitt's counsel. When Judge Ouderkirk did not recuse himself, Jolie filed a verified statement of disqualification in superior court, asserting a reasonable person would entertain a doubt whether Judge Ouderkirk could be impartial in the proceedings in light of his failure to disclose multiple professional, business and financial relationships, ongoing during the course of the matter, with Pitt's counsel and their law firms.
Pitt filed an opposition to Jolie's statement of disqualification, contending the request “is a thinly veiled attempt by Jolie to delay the adjudication of long-pending custody issues, ” and asserting Judge Ouderkirk had complied with “all standard ethical practices and rules.”
On August 18, 2020 Judge Ouderkirk filed a verified answer to Jolie's statement of disqualification. After a detailed description of the factual background, Judge Ouderkirk asserted he and ARC had made all required disclosures in a timely manner at the time of his initial appointment. As to subsequent disclosures, Judge Ouderkirk insisted that the pertinent canon of the California Code of Judicial Ethics “does not set any specific time limitation for disclosure other than to state that disclosure is required from: ‘... the time of notice and acceptance of appointment until termination of the appointment.'”
Specifically with respect to Levitan, Judge Ouderkirk noted it had previously been disclosed (in May and August 2018) and quoted the explanation in his August 5, 2020 letter to DeJean that, although his appointment in the case had been extended after the earlier disclosures, he had not actually heard any additional issues in the matter. Judge Ouderkirk described as “beyond any reasonable inference” the suggestion there was anything inappropriate about Spiegel's request that the court further extend that appointment. As for his recent involvement in the Merade and Hankey cases, Judge Ouderkirk stated they “were included in the July 24, 2020 supplemental disclosures made promptly upon Petitioner's request and discussed in the August 5, 2020 reply to the July 27, 2020 inquiry by Petitioner's counsel. [Fn. omitted.] These disclosures comply with the disclosure requirements of Canon 6D(5)(a) which does not set any specific time limitation for disclosure other than to state that disclosure is required from: ‘... the time of notice and acceptance of appointment until termination of appointment.' July 24, 2020 was certainly within the relevant time frame. Could these disclosures have been made sooner? Clearly, they could have been and were overlooked in the administrative process. When brought to Judge Ouderkirk's attention they were instantly disclosed and the circumstances surrounding each case were explained to Petitioner's counsel in response to her request for more information.” Judge Ouderkirk added, “Petitioner does not explain how these two matters, Hankey and Merade, standing alone without any more information would somehow cause an impartial observer to disregard the consistent, voluminous, overwhelming and ongoing disclosures made by Judge Ouderkirk since the inception of the Jolie/Pitt case.” Judge Ouderkirk concluded by stating, “I can and will remain impartial in this action.”
6. The Superior Court's Order Denying Disqualification