Opinion
NOT TO BE PUBLISHED.
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC243368, Jon M. Mayeda and Ann I. Jones, Judges.
Michael R. Blaha for Plaintiff and Appellant.
Katten Muchin Rosenmann, Gail Migdal Title, Joel R. Weiner, and Evan Dwin for Defendants and Respondents.
CHAVEZ, J.
Ram Ben Efraim (appellant) appeals from a final judgment dismissing his action against Universal City Studios, Inc. and Blair Maxwell Westlake (collectively respondent). Appellant’s action against respondent was filed in January 2001. The matter was stayed pending arbitration, and on October 18, 2006, the stay was lifted. In January 2007 the complaint was dismissed with prejudice, the cross-complaint was dismissed without prejudice, and appellant filed a proposed judgment of dismissal. On March 6, 2007, appellant filed a statement of disqualification pursuant to Code of Civil Procedure section 170.1. On March 12, 2007, the trial court dismissed the action by signing and filing appellant’s proposed judgment of dismissal. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
CONTENTIONS
Appellant contends that his statement of disqualification operated to disqualify Judge Jon Mayeda from presiding over the action below. Thus, appellant claims, all orders entered after the time that the facts giving rise to the disqualification occurred are void.
Appellant further contends that Judge Ann I. Jones, who, on April 10, 2007, was assigned to the matter for all further proceedings, had no jurisdiction to hear and determine any issue related to disqualification. In addition, appellant contends that Judge Jones’s ruling on his motion to vacate the judgment was erroneous because: (1) it erroneously held that the statement of disqualification was filed after the action was concluded; (2) it erroneously held that appellant’s statement provided no legal or factual grounds for disqualification; and (3) Judge Jones improperly considered Judge Mayeda’s March 22, 2007 minute order.
In addition, appellant contends that Judge Mayeda had no jurisdiction to dismiss the action because: (1) appellant’s statement of disqualification had not yet been ruled upon; and (2) by granting the motion to compel arbitration and for a stay, the trial court relinquished authority to order dismissal of the action.
BACKGROUND
1. The complaint and motion to compel arbitration
In January 2001, appellant filed the initial complaint in this action. A first amended complaint (FAC) was filed on February 23, 2001. The FAC alleged that appellant was a profit participant in a motion picture which was distributed by respondent. On behalf of himself and on behalf of the general public, appellant alleged claims of unfair competition in violation of Business and Professions Code section 17200, and fraud. Appellant sought relief based on respondent’s alleged unfair practices in connection with the television exploitation of movies.
Blair Westlake, a former executive of respondent, was also a named defendant and was personally sued for “aiding and abetting.”
The case was initially assigned to Judge Emilie Elias. However, appellant filed a peremptory challenge under section 170.6, and on April 26, 2001, the case was assigned to Judge Jon Mayeda.
On September 26, 2001, the trial court granted respondent’s motion to compel arbitration and for a stay of the action. At the hearing on the motion, which took place on the same date, the court initially indicated its intention to dismiss the entire matter. However, the court and appellant’s counsel had the following exchange:
“[Appellant’s counsel:] If you compel it into arbitration without granting us a stay, it’s never going to survive in a court of law. . . . So, I mean if we go to arbitration with them, there’s no way that they will ever be heard. There will never be a remedy. . . .
“The Court: . . . Hypothetically, if it goes to Judge [Chernow] and he determines that there was no release, doesn’t that preserve the [Business and Professions Code section] 17200 claim here?
Appellant’s arbitration against respondent was pending before Judge Eli Chernow, Judge of the Superior Court, Retired.
“[Appellant’s counsel:] The statute of limitations has run, Your Honor. We have to refile anyway, so why not just stay the case?”
At the close of the hearing, the court indicated its concern over appellant’s statute of limitations argument regarding the public interest Business and Professions Code section 17200 claim. In sum, the court stated: “If I’m sending him down the road by which -- depending on how Judge [Chernow] rules, there may be sort of no remedy, I don’t want to do it. . . . I guess you’ve convinced me, or I’ve convinced myself . . . I’m going to compel the arbitration and I’ll stay the [section] 17200 claim here.”
On November 27, 2001, the court signed and filed an order granting the motion to compel arbitration and for a stay. The order specified that:
“The causes of action for Business and Professions Code § 17200 (the first and second causes of action in the first amended complaint), to the extent such causes of action are brought on behalf of the general public, are stayed pending the arbitration. However, the issue of whether [appellant] released the right to bring such § 17200 claims on behalf of the general public (i.e., by virtue of the Arbitration Agreement, Settlement Agreement and Mutual Release of Claims and/or Exhibit F thereto) is to be determined in the arbitration.”
At the hearing on the motion to compel arbitration on September 26, 2001, appellant’s counsel indicated appellant’s intention to move for summary judgment in the arbitration proceeding as to whether the Business & Professions Code section 17200 claims brought on behalf of the general public were released by appellant, so that appellant could “come back to [the trial court] and seek a lifting of the stay and proceed with the [section] 17200 cases.”
2. Proposition 64
Former Business and Professions Code section 17204 (as amended by Stats. 1993, ch. 926, § 2), allowed any person acting for the general public to sue for relief from unfair competition. However, Proposition 64 took effect on November 3, 2004, having been approved by the voters on the preceding day. Under Proposition 64, “‘only the California Attorney General and local public officials’” are “‘authorized to file and prosecute actions on behalf of the general public.’ [Citation.]” (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227-228 (Mervyn’s).) In Mervyn’s, the Supreme Court held that the provisions of Proposition 64 “apply to pending cases.” (Id. at p. 227.)
3. Dismissal proceedings
Respondent’s counsel drew the trial court’s attention to Proposition 64 and the Supreme Court’s decision that its provisions applied to pending cases. In addition, respondent’s counsel asked that appellant dismiss his complaint on the grounds that the general public claims -- which were the only claims the trial court did not dismiss as a result of the order compelling arbitration -- were no longer viable.
The court set a hearing regarding dismissal of the action for December 4, 2006. By minute order dated December 8, 2006, the trial court ruled:
“[Appellant’s] representative claims for violation of [Business] and Profession[s] Code [section] 17200 are dismissed, as the issues of whether [appellant] released his claims to bring [section] 17200 claims individually and on behalf of the public were to be decided by the arbitrator. Without such a determination, [appellant] has not shown injury or lost [sic] of money to establish standing as required by Business and Profession[s] Code [section] 17204. [¶] The complaint is dismissed with prejudice.”
The court further issued an order to show cause (OSC) regarding the dismissal of the cross-complaint for January 8, 2007.
On January 5, 2007, the trial court signed and filed a written order dismissing appellant’s first amended complaint with prejudice. On the same date, respondent filed a request for dismissal of its cross-complaint without prejudice.
On January 8, 2007, the date set for the OSC regarding respondent’s cross-complaint, the court issued a minute order which stated: “Matter is not held. [¶] Dismissal filed January 5, 2007, the above matter is discharged.”
On January 25, 2007, appellant submitted for the court’s consideration a proposed judgment of dismissal of the entire action. On February 2, 2007, respondent filed objections to appellant’s proposed judgment along with its alternative proposed form of judgment. Appellant filed an objection to respondent’s proposed judgment on February 7, 2007. On March 12, 2007, the court signed and filed the judgment of dismissal of the entire action which appellant had submitted on January 25, 2007.
4. Appellant’s statement of disqualification pursuant to section 170.1
On March 6, 2007, appellant filed his verified statement of disqualification. The statement indicated that on February 23, 2007, appellant entered the name of the trial judge, Honorable Jon Mayeda, into an internet search engine. He discovered an article in the Metropolitan News. The statement explained: “Upon review of the Opinion referred to in the Metropolitan News article, Hartford Casualty Ins. Co. v. Superior Court (2004) 125 Cal.App.4th 250, (‘Hartford’)” appellant “learned for the first time that Judge Mayeda ‘had discussions with multiple dispute resolution providers regarding prospective employment’ . . . some time between March 2002 and 2004.”
In Hartford, Judge Mayeda disqualified himself from a case after disclosing that as of March 15, 2004, he had been contacted by alternative dispute resolution providers in the preceding two years. The Court of Appeal held that Judge Mayeda was properly disqualified based on its understanding of the statutory language that existed at the time, even though the discussions were not initiated by Judge Mayeda and were superficial. (Hartford Cas. Ins. Co. v. Superior Court (Dec. 22, 2004, B176439) review granted Mar. 23, 2005, S131154, review dism. Nov. 16, 2005.) Review was granted by the Supreme Court on March 23, 2005. However, the California Legislature amended section 170.1 in 2005 to “clarify the law to avoid wholesale disqualifications of civil judges that could severely hamper a trial court’s ability to manage its civil litigation calendar.” (Stats. 2005, ch. 332, § 3.) The Legislature specified: “It is the intent of the Legislature in enacting this act to construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in Hartford Casualty Ins. Co. v. Superior Court of Los Angeles (2004) 125 Cal.App.4th 250.” (Stats. 2005, ch. 332, § 2.) The amendments added a Legislative determination that a judge has only “participated” in disqualifying discussions where the judge “solicited or . . . ma[de] an inquiry regarding the employment or service . . . or encourage[ed]” such communication regarding employment or service. (§ 170.1, subd. (a)(8)(B)(i).) The Supreme Court dismissed Hartford on November 16, 2005, stating: “In light of the recent amendment of Code of Civil Procedure, section 170.1, subdivision (a)(8) (Stats. 2005, ch. 332, eff. Sept. 22, 2005), review in this matter is dismissed.” (Hartford Casualty Ins. Co. v. Superior Court, Supreme Ct. mins., Nov. 16, 2005, S131554 [2005 Cal. Lexis 13053].) Therefore, the Legislature has specifically rejected the proposition that the contacts between Judge Mayeda and the alternative dispute resolution providers which gave rise to the Hartford decision are sufficient to require disqualification.
In a minute order dated March 22, 2007, Judge Mayeda stated: “The court is informed that on March 6, 2007, counsel for [appellant] served a conformed copy of a filed verified statement of disqualification on the court’s clerk. The court is informed that the clerk did receive a copy of that pleading on that date, but did not provide it to the court because the case had previously been dismissed and no further action was required. . . . The court first learned of the existence of the verified statement of disqualification on March 20, 2007, when it was informed that opposition papers were filed by the opposing party.”
Because the court had not yet learned of the existence of the statement of disqualification, on March 12, 2007, it filed the judgment of dismissal of the entire action. On the same date, the court signed and filed the judgment which respondent had submitted.
In the March 22, 2007 minute order, filed shortly after the court became aware of the statement of disqualification, Judge Mayeda acknowledged that “the time for the court to timely respond expired on March 16, 2007.” The court further found that:
“Under the terms of Code of Civil Procedure section 170.3, a judge who fails to file a consent or answer within the specified time shall be deemed to have consented to the disqualification. No remedy is provided for circumstances such as these where the failure to respond was due to actual lack of notice of the service of the document. Such an implied consent to disqualification is not, however, a concession that there is a basis for disqualification.
“The effect of this deemed disqualification is unclear. This case was fully and finally dismissed and disposed of as of January 8, 2007, and nothing remains to be done. The deemed disqualification does not set aside nor provide a basis for setting aside of any decision of the court. Had the court been aware of the verified statement of disqualification within the time to respond, the court would have stricken the statement pursuant to Code of Civil Procedure section 170.4(b) on the grounds that it was untimely.”
On March 23, 2007, a copy of the March 22, 2007 minute order was mailed to the parties.
5. Appellant’s motion to vacate the judgment
On April 2, 2007, appellant filed his motion to vacate the judgment (motion to vacate) based on the verified statement of disqualification. Citing Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776, appellant argued that “[D]isqualification occurs when the facts creating disqualification arise, not when disqualification is established.” Appellant further argued that the Hartford decision revealed that the “facts creating disqualification” arose “before January 8, 2004.” In sum, appellant contended: “Judge Mayeda recused himself in Hartford. Under the plain terms of the disqualification statute he was also required to recuse himself in this case.” Appellant concluded, “Each of Judge Mayeda’s appealable Orders and Judgment rendered after the grounds for his disqualification had arisen must be declared void on the ground that he was disqualified.”
On April 10, 2007, the court issued an order reassigning the case to Judge Ann I. Jones for all further proceedings. Appellant filed an amended motion to vacate on May 9, 2007. Respondent opposed the motion. A hearing on the motion was held on June 20, 2007.
The court denied the motion to vacate. In a written order filed on June 20, 2007, the court explained that, under North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 770 (rev. den. May 16, 2007) (North Beverly), the statutory scheme set forth in section 170.3 did not apply because section 170.3, subdivision (a)(1) contemplates a judge disqualifying himself “‘from pending proceedings -- those to be tried or heard.’” Because there was no pending proceeding at the time appellant sought to disqualify Judge Mayeda, the court concluded, section 170.3 did not apply.
Further, the court found that appellant had failed to “allege and prove facts which clearly show that such a disqualification existed.” The court noted that appellant relied solely upon the information contained in the Hartford decision as a basis for his claim of disqualification. The court noted that Hartford had been rendered moot by subsequent legislation and was now “de-published.” Thus, the court concluded, “the statement of disqualification provides no legal or factual grounds for disqualification” and “provides no basis for revisiting or vacating any prior orders in this case.”
On June 27, 2007, appellant filed his notice of appeal from (1) the court’s January 5, 2007 order dismissing the FAC with prejudice; (2) the court’s January 8, 2007 order dismissing the entire action; (3) the March 12, 2007 judgment against appellant; (4) the March 12, 2007 judgment of dismissal of the entire action; and (5) the court’s June 20, 2007 order denying appellant’s motion to vacate the judgment.
DISCUSSION
I. Standard of Review
Appellant argues that this appeal involves construction of California statutes and their application to the specific facts of this case. Thus, appellant contends that a de novo standard of review is appropriate for all of the issues he has presented, including those concerning his statement of disqualification.
However, the issue of the disqualification of Judge Mayeda, and the question of the effect of appellant’s statement of disqualification on the previous court orders, were presented to Judge Jones in the context of appellant’s motion to vacate. These issues were fully briefed by the parties, and they were given an opportunity to be heard. Judge Jones issued a written opinion which thoroughly considered appellant’s arguments as to why Judge Mayeda’s orders should be considered void. Therefore, we find that the issues related to Judge Mayeda’s disqualification are properly considered in the context of Judge Jones’s denial of the motion to vacate.
Appellant takes the position that respondent may not challenge Judge Mayeda’s disqualification or challenge the legal or factual sufficiency of the statement of disqualification on appeal because the exclusive means to contest these issues is by writ of mandate. Appellant cites People v. Williams (1997) 16 Cal.4th 635, 652, for the proposition that “[Section 170.3, subdivision (d)] provides for review by writ of mandate sought within 10 days of the challenged decision as the exclusive means for challenging a ruling on the disqualification of a judge. [Citation.]” However, respondent did not instigate this appeal, nor has respondent challenged any ruling on appellant’s statement of disqualification. Instead, appellant initiated this appeal by challenging the final judgment against him. Respondent is entitled to respond to the issues raised in appellant’s appeal, including issues related to disqualification, which were considered by the trial court in appellant’s motion to vacate.
The ruling on a motion to vacate a judgment will only be disturbed on appeal where there is a clear showing of abuse of discretion and a manifest miscarriage of justice. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283.) In addition, the standard of review for decisions regarding the disqualification of a judge under section 170.1 is abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 237.) We therefore review Judge Jones’s decision denying appellant’s motion to vacate for abuse of discretion. Under that standard, we give “abundant deference to the trial court’s rulings.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.) A trial court’s exercise of discretion will not be disturbed on appeal unless the court exercised it in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434.)
To the extent that appellant raises purely legal issues relating to jurisdiction, which were not considered by the trial court as part of appellant’s motion to vacate, we apply a de novo standard of review. (Anserv Ins. Servs. v. Kelso (2000) 83 Cal.App.4th 197, 204.)
II. Motion to Vacate
After Judge Mayeda issued his March 22, 2007 minute order, Judge Jones was appointed to preside over all further proceedings. Such proceedings included appellant’s motion to vacate. Appellant’s main arguments on appeal concern the central issue determined in that motion: the effect of appellant’s statement of disqualification on the rulings made by Judge Mayeda.
We reject appellant’s position that Judge Mayeda had no power to enter the March 22, 2007 minute order because he failed to answer the statement of disqualification within 10 days, as required under section 170.3, subdivision (c)(3). As we will discuss in greater detail, appellant’s statement of disqualification was insufficient and untimely and did not operate to disqualify Judge Mayeda at any time. In addition, even if appellant’s statement of disqualification properly set forth grounds for disqualification, section 170.4, subdivision (a)(3) allows disqualified judges to hear and determine purely default matters. Because any disqualification would have occurred by default upon the passage of the 10-day period, Judge Mayeda had the power to enter an order on that issue.
A. Applicable law
Preliminarily, we set forth the applicable law on the subject of the disqualification of judges.
1. Section 170.1 -- Grounds for disqualification
Section 170.1 sets forth the circumstances which provide grounds for disqualification. Appellant’s stated ground for disqualification was Judge Mayeda’s “discussions with multiple dispute resolution providers regarding prospective employment.” The applicable statutory provisions, found in section 170.1, subdivision (a), provide:
“A judge shall be disqualified if any one or more of the following is true:
“[¶] . . . [¶]
“(8)(A) The judge has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discussions regarding prospective employment or service as a dispute resolution neutral, or has been engaged in such employment or service, and any of the following applies:
“[¶] . . . [¶]
“(ii) The matter before the judge includes issues relating to the enforcement of either an agreement to submit a dispute to an alternative dispute resolution process or an award or other final decision by a dispute resolution neutral.
“[¶] . . . [¶]
“(B) For the purposes of this paragraph, all of the following apply:
“(i) ‘Participating in discussions’ or ‘has participated in discussion’ means that the judge solicited or otherwise indicated an interest in accepting or negotiating possible employment or service as an alternative dispute resolution neutral or responded to an unsolicited statement regarding, or an offer of, such employment or service by expressing an interest in that employment or service, making an inquiry regarding the employment or service, or encouraging the person making the statement or offer to provide additional information about that possible employment or service. If a judge’s response to an unsolicited statement regarding, a question about, or offer of, prospective employment or other compensated service as a dispute resolution neutral is limited to responding negatively, declining the offer, or declining to discuss such employment or service, that response does not constitute participating in discussions.”
2. Section 170.3 -- Relevant proceedings related to disqualification
Section 170.3 sets forth the procedures applicable to the filing and determination of a statement of disqualification. Section 170.3, subdivision (b)(4) sets forth procedures specific to a situation where “grounds for disqualification are first learned of or arise” after a judge has made one or more rulings but before he has completed judicial action. That section provides in full:
“If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.”
Thus, even if appellant’s statement of disqualification operated to disqualify Judge Mayeda from the date of his discussions with the alternative dispute resolution providers, none of Judge Mayeda’s rulings dating prior to March 2002, the date of the claimed discussions, could be set aside without a showing of “good cause.” Appellant has not directly raised this issue therefore it will not be addressed.
Section 170.3, subdivisions (c)(3) and (c)(4) set forth the rules regarding a judge’s obligation to respond to a statement of disqualification within 10 days. They provide:
“(3) Within 10 days after the filing or service, whichever is later, the judge may file a consent to disqualification in which case the judge shall notify the presiding judge or the person authorized to appoint a replacement of his or her recusal as provided in subdivision (a), or the judge may file a written verified answer admitting or denying any or all of the allegations contained in the party’s statement and setting forth any additional facts material or relevant to the question of disqualification. The clerk shall forthwith transmit a copy of the judge’s answer to each party or his or her attorney who has appeared in the action.
“(4) A judge who fails to file a consent or answer within the time allowed shall be deemed to have consented to his or her disqualification and the clerk shall notify the presiding judge or person authorized to appoint a replacement of the recusal as provided in subdivision (a).”
A related rule, set forth in North Beverly, supra, 147 Cal.App.4th at page 772, provides that if the judge does not respond to a party’s statement of disqualification, and is thus automatically disqualified under section 170.3, subdivision (c)(4), “the facts alleged in the statement of disqualification are deemed true.”
B. Judge Jones had jurisdiction to rule on the motion to vacate
Appellant first argues that Judge Jones “lacked jurisdiction to hear and determine any issues relating to the question of disqualification.” Appellant’s position is based on two arguments: (1) that section 170.3, subdivision (c)(6) provides that another judge shall determine the question of disqualification only if the challenged judge has filed a written verified answer denying the allegations set forth in the statement; and (2) section 170.3, subdivision (d) provides that the question of disqualification may be reviewed only by a writ of mandate. Both of these arguments are inapplicable to the situation before us.
After Judge Mayeda filed his minute order on March 22, 2007, appellant filed his motion to vacate. The superior court properly reassigned Judge Jones to hear and determine the issues contained in that motion. Thus, Judge Jones did not directly determine, or review, the question of Judge Mayeda’s disqualification. Instead, at appellant’s request, and in the context of appellant’s motion to vacate, she determined the effect of appellant’s statement of disqualification on the rulings in the case. Neither subdivision (c)(6) nor subdivision (d) of section 170.3 prevents a trial judge from being appointed to consider a motion to vacate the judgment under these circumstances. We therefore find that Judge Jones had jurisdiction to review and determine the issues placed before her in appellant’s motion to vacate.
C. The court did not abuse its discretion in denying the motion to vacate
Judge Jones’s denial of appellant’s motion to vacate was based on two independent factors: (1) that appellant’s statement of disqualification was untimely under North Beverly; and (2) that appellant failed to allege and prove facts which showed that a disqualification existed. As set forth below, we find that both of these determinations were well within the court’s discretion.
1. Timing of appellant’s statement of disqualification
Preliminarily, the court rejected appellant’s position that the statutory scheme set forth in section 170.3 applied under the circumstances. The court reasoned that “Judge Mayeda dismissed the case and fully and finally disposed of the case on January 8, 2007. [Appellant’s] statement of disqualification was not filed until two months later.” The court explained that under North Beverly, section 170.3 contemplates a judge disqualifying himself “‘from pending proceedings -- those to be tried or heard.’” And, the court pointed out, “There was no pending proceeding at the time [appellant] sought to disqualify Judge Mayeda.”
Appellant disagrees with the trial court’s interpretation of North Beverly. Simply put, appellant argues that “[t]his action was not ‘over’ when [appellant] filed his Statement, and North Beverly therefore does not apply.”
As set forth above, Judge Mayeda signed and filed an order dismissing the FAC with prejudice on January 5, 2007. On the same date, the court set an OSC regarding dismissal of respondent’s cross-complaint. Respondent filed and served a request for dismissal of its cross-complaint, which the court entered. On January 8, 2007, the court discharged the OSC since the cross-complaint had been dismissed. On February 2, 2007, respondent served “notice of entry” of dismissal of both the FAC and the cross-complaint. Appellant’s statement of disqualification was not filed until March 6, 2007.
Although these facts reveal that there were no “pending proceedings” before Judge Mayeda at the time appellant filed his statement of disqualification, appellant takes the position that these events did not constitute a final judgment but a “piecemeal disposition of the entire action.” (Mather v. Mather (1943) 22 Cal.2d 713, 716 [holding that “the entry of successive separate judgments constituted but piecemeal disposition of a single and unseverable cause, that the judgments in question were partial and not final”].) In addition, appellant argues that “final” means “after an appeal is concluded or the time within which to appeal has passed.” (McKee v. Nat’l Union Fire Ins. Co. (1993) 15 Cal.App.4th 282, 287.)
However, we note that, in coming to its conclusion that the statutory scheme relating to disqualification of judges only applies to “pending proceedings,” the North Beverly court focused on certain language contained within the statutes which implies that the statutory scheme is only applicable where future hearings or trials are contemplated. For example, the North Beverly court noted that section 170.3, subdivision (a)(1), provides in relevant part that “‘[i]f a judge determines himself or herself to be disqualified, the judge shall notify the presiding judge . . . and shall not further participate in the proceeding. . . .’” (North Beverly, supra, 147 Cal.App.4th at p. 770.) The court went on to point out that “[t]he word ‘proceeding’ is defined as ‘the action, case, cause, motion, or special proceeding to be tried or heard by the judge.’” (Ibid., citing § 170.3, subd. (c)(1).)
In addition, the North Beverly court pointed out that section 170.3, subdivision (c)(1) states that if a judge who should disqualify himself fails to do so, a party may file with the clerk a written verified statement “objecting to the hearing or trial before the judge,” (§ 170.3, subd. (c)(1), italics added) -- not to the hearing or trial previously before the judge. As the North Beverly court further analyzed the statutory scheme, it found that the disqualification statutes expressly cover the time frame “before judicial action is completed and when a statement of disqualification is filed midtrial or midhearing. However, it does not have a procedure applicable when the issue of disqualification is first raised after final judgment -- a clear indication that the Legislature never contemplated applying the statutory disqualification procedure in such a circumstance.” (North Beverly, supra, 147 Cal.App.4th at p. 771.)
Thus, the analysis behind the North Beverly court’s ruling focused on the statutory scheme’s application to pending proceedings and future significant court actions such as hearings or trials. All such action had been completed in this case. Although the trial court had not signed and entered the proposed final judgments, as the trial court pointed out, Judge Mayeda was “no longer in a position of having to make case-critical decisions.” We find that, under the circumstances, the trial court did not abuse its discretion in determining that the statutory scheme was inapplicable and thus appellant’s statement of disqualification was ineffective.
Appellant relies on Urias v. Harris Farms (1991) 234 Cal.App.3d 415 for the proposition that “a statement of disqualification is timely if submitted at the ‘earliest practicable opportunity’ after the disqualifying factors are discovered.” (Id. at pp. 424-425.) In Urias, the Court of Appeal considered a statement of disqualification filed after a motion for summary judgment had been granted and judgment entered. The court acknowledged that “the disqualification statutes do not prescribe a remedy for this situation where the judge is found to be disqualified after judgment is entered.” (Id. at p. 423.) However, without significant further analysis, the court went on to apply the disqualification statutes to the situation before it. The Urias court’s decision to apply the disqualification statutes when no further proceedings were pending is at odds with the analysis set forth on this question in North Beverly. However, we note that the Supreme Court declined to review North Beverly, which provides more significant analysis on the question of the applicability of the disqualification statutes to a case that is over. Further, as we shall explain, regardless of the inconsistency between Urias and North Beverly, the trial court’s decision to deny appellant’s motion to vacate was proper because appellant did not set forth facts sufficient to disqualify Judge Mayeda at any time.
2. Sufficiency of appellant’s statement of disqualification
We have found that the trial court did not abuse its discretion in determining that appellant’s statement of disqualification was ineffective because it was filed after the proceedings had been completed. However, as we will discuss below, even if appellant’s statement of disqualification had been filed earlier, appellant failed to allege facts which disqualified Judge Mayeda. Thus, even if we were required to “assume the truth of [appellant’s] statement of disqualification, we would nonetheless hold that the trial judge was not disqualified.” (North Beverly, supra, 147 Cal.App.4th at p. 774.)
Appellant’s statement did not set forth facts showing Judge Mayeda’s disqualification under section 170.1, subdivision (a)(8)(A). The relevant part of the statute requires a statement of disqualification to allege that “within the last two years has participated in, discussions regarding prospective employment or service as a dispute resolution neutral.” Under section 170.1, subdivision (a)(8)(B)(i), “‘Participating in discussions’” means that the judge “solicited or otherwise indicated an interest in accepting or negotiating possible employment or service as an alternative dispute resolution neutral.” However, “If a judge’s response to an unsolicited statement . . . or offer of . . . prospective employment or other compensated service as a dispute resolution neutral is limited to responding negatively, declining the offer, or declining to discuss such employment or service, that response does not constitute participating in discussions.”
The only allegation contained in appellant’s statement of disqualification is that, upon reading the opinion in Hartford, appellant learned that “Judge Mayeda ‘had discussions with multiple dispute resolution providers regarding prospective employment’ . . . some time between March 2002 and 2004.” As explained above in footnote 4, the Legislature has specifically rejected the proposition that the contacts between Judge Mayeda and the alternative dispute resolution providers which gave rise to the Hartford decision are sufficient to require disqualification. Because the 2005 amendments to section 170.1 were effective at the time that appellant filed his statement of disqualification, appellant was required to allege specific facts showing that Judge Mayeda had solicited or otherwise indicated an interest in accepting or negotiating possible employment. He failed to allege any such facts.
In addition, any discussion that a judge has regarding prospective employment with a dispute resolution provider will only render the judge subject to disqualification if, among other things, “[t]he matter before the judge includes issues relating to the enforcement of either an agreement to submit a dispute to an alternative dispute resolution process or an award or other final decision by a dispute resolution neutral.” (§ 170.1, subd. (a)(8)(A)(ii).) Although appellant argues that respondent’s cross-complaint raised issues relating to arbitration, those claims were stayed as of January 28, 2002. Appellant has failed to reference any hearings or proceedings related to an agreement to arbitrate which took place during the relevant time frame. In fact, the procedural history of the matter reveals that all proceedings related to respondent’s motion to compel arbitration were completed as of November 2001. The only claim which was not disposed of at that time was appellant’s Business and Professions Code section 17200 claim brought on behalf of the general public. As the trial court held in denying appellant’s motion to vacate the judgment, “[s]ubsequent decisions by Judge Mayeda to dismiss the [Business and Professions Code section] 17200 causes of action based on the plaintiff’s lack of standing (post Prop 64) are not matters covered under [section] 170.1(a)(8).”
In sum, the facts set forth in the statement of disqualification, even if taken as true, are insufficient to show that Judge Mayeda was disqualified at any time. The trial court did not abuse its discretion in so holding.
III. Jurisdiction to Dismiss the Action
We have determined that Judge Jones did not err in denying appellant’s motion to vacate the judgment. Appellant presents two alternative arguments for reversal of the final judgment, which we address below.
A. Section 170.4, subdivision (d)
Section 170.4, subdivision (d) states: “Except as provided in this section, a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined.”
The exceptions listed do not include entry of a final judgment.
Appellant argues that this section prevented the court’s action in this matter from the moment that appellant filed his statement of disqualification. Because the question of disqualification had not yet been determined on March 12, 2007, appellant argues, Judge Mayeda had no power to enter the final dismissal order on that date.
Appellant did not raise this specific argument in his motion to vacate, therefore we address it separately.
We disagree. Section 170.4, subdivision (d) only applies to “a disqualified judge.” On March 12, 2007, Judge Mayeda was not a “disqualified judge.” No facts showing grounds for Judge Mayeda’s disqualification arose at any time prior to March 16, 2007, when his opportunity to respond to the statement of disqualification expired. If appellant’s statement of disqualification had been timely filed, Judge Mayeda would have been deemed disqualified on that date. However, we have determined that the trial court did not err in finding that appellant’s statement of disqualification was ineffective because it was filed after Judge Mayeda “fully and finally disposed of the case.” In addition, we have found that the statement of disqualification failed to allege facts sufficient to show Judge Mayeda’s disqualification. Thus, Judge Mayeda was not at any time “a disqualified judge.” Section 170.4, subdivision (d) is therefore inapplicable and the March 12, 2007 order is valid.
B. The order compelling arbitration and for a stay did not divest the court of jurisdiction to dismiss the action on behalf of the general public
Finally, appellant argues that, once the trial court signed its order granting the motion to compel arbitration and for a stay, the trial court had no jurisdiction to dismiss the complaint or the entire action, therefore its orders and judgments of dismissal must be reversed.
In support of this argument, appellant cites Brock v. Kaiser Found. Hosps. (1992) 10 Cal.App.4th 1790, 1796 (Brock), which explained a court’s “vestigial” jurisdiction over a matter once it has been compelled to arbitration and stayed. The Brock court explained: “This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits (in which case the action at law should be dismissed because of the res judicata effects of the arbitration award [citation]) or not (at which point the action at law may resume to determine the rights of the parties). [Citations.]” (Id. at p. 1796.) In addition, appellant cites Titan/Value Equities Group v. Superior Court (1994) 29 Cal.App.4th 482, 487, which holds that, during the time that a lawsuit is stayed pending arbitration, the trial court may “appoint arbitrators if the method selected by the parties fails” and “grant a provisional remedy.” The case goes on to hold that “[a]bsent an agreement to withdraw the controversy from arbitration, however, no other judicial act is authorized. [Citation.]” (Ibid.)
Neither of the cases cited by appellant involves the precise situation before us. Both cases assume that the fundamental question of the plaintiff’s standing to bring the claim will remain unchanged throughout the proceedings. Here, the trial court stayed appellant’s Business and Professions Code section 17200 public interest claim so that “the issue of whether [appellant] released the right to bring such [section] 17200 claims on behalf of the general public (i.e., by virtue of the Arbitration Agreement, Settlement Agreement and Mutual Release of Claims and/or Exhibit F thereto)” could “be determined in the arbitration.” Despite the passage of five years, the issue was never determined in arbitration. During that time, appellant lost standing to maintain the claim due to the passage of Proposition 64. “[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding. [Citations.]” (Common Cause of Cal. v. Bd. of Supervisors (1989) 49 Cal.3d 432, 438.) The trial court was not required to leave the lawsuit pending in perpetuity, particularly when appellant’s fundamental right to prosecute that claim on behalf of the general public no longer existed. Thus, we find that, under the specific circumstances of this case, the trial court had the power to dismiss the action for lack of standing despite its submission of the matter to arbitration.
On March 1, 2004, Judge Chernow wrote a letter to counsel reminding the parties that Judge Mayeda had ordered that “any and all claims of [appellant] under the Settlement and Arbitration Agreement must be filed in this arbitration proceeding.” Judge Chernow further noted that appellant had not filed any such claims as of that date, and indicated “any and all claims not filed by March 31, 2004 will be deemed either abandoned or time barred or both.” Respondent represented in its opposition to appellant’s motion to vacate that appellant never prosecuted those claims in arbitration: “In sum, [appellant] . . . simply did not seek or obtain any ruling from the arbitrator that the releases do not bar him from pursuing [Business and Professions Code section] 17200 claims in court.”
DISPOSITION
The judgment is affirmed. Appellant’s requests for judicial notice are denied. Appellant is ordered to pay the costs of appeal.
We concur: BOREN, P. J., DOI TODD, J.