Judge’s sudden recusal in trial related to witness and assistant presiding judge

Is a trial court judge’s recusal necessary when a third-party witness is related to the court’s assistant presiding judge?

This unusual question presented itself in Orange County Superior Court last November, when Judge John C. Gastelum suddenly recused himself midtrial when he learned that a third-party witness on the stand – Orange County Supervisor Andrew Do – was married to the assistant presiding judge, Cheri T. Pham.

Gastelum’s surprise announcement, after lunch recess on the 14th day of trial, led to a mistrial more than three years after the case was filed. It has since been transferred to Los Angeles County Superior Court Judge Lia R. Martin, where the parties will be starting over. A status conference is scheduled on May 14.

“The trial court did not ask for the parties’ views on whether Supervisor Do’s marriage to Judge Pham required disqualification and a mistrial, and did not ask whether the parties would waive the disqualification under Code of Civil Procedure section 170.3(b). The trial court simply decided, over the lunch break, to disqualify itself and require the parties to start over before another court,” Todd E. Lundell of Sheppard, Mullin, Richter & Hampton LLP wrote in Orange County Association for Mental Health’s petition to the California Supreme Court for review, which was denied. Lundell’s colleague, Isaiah Z. Weedn – who was also in the courtroom that day – said they were not authorized to publicly discuss the matter.

Orange County Superior Court spokesman Kostas Kalaitzidis said judges were not authorized to discuss pending matters.

Deborah A. Wolfe, principal of Wolfe Legal Group PC and a specialist in legal malpractice law, said she has not had such an issue arise in the courtroom.

“Most judges are really sensitive about getting overturned on appeal. Usually, you have a witness list you provide to the court, sometimes many weeks in advance. As an attorney I’m always looking at it with an eye for conflict,” Wolfe said.

“There is no reason necessarily to know Do is married to the judge,” she continued.

Any potential conflict should have been discovered early and, if necessary, have the case transferred to another jurisdiction, Wolfe noted.

“Judges are supposed to avoid the appearance of impropriety,” she continued. “If he goes to cocktail parties with her, wouldn’t he know her husband on sight? I don’t see what the appearance of impropriety would be with that.”

The City of Santa Ana sued the non-profit Orange County Association for Mental Health in January 2020, alleging two causes of action, according to court filings. The city claimed that the mental health office caused excessive numbers of service calls and neighbor complaints; and that its operation violated the city’s zoning code. The organization’s Homeless Multi-Service Center is an entry point for homeless, mentally ill individuals into Orange County’s mental health programs, according to court filings.

In its cross-complaint the Orange County Association for Mental Health alleged that its operation was protected by California Welfare and Institutions Code § 5120. The mental health non-profit identified Do as a witness, as did the city’s form interrogatories.

Orange County Association for Mental Health’s attorneys with Sheppard Mullin petitioned the 4th Appellate District for a writ of mandate less than two weeks after Gastelum recused himself. It was denied. Their petition to the California Supreme Court for review was also denied. The Orange County Board of Supervisors voted to require the mental health association to move its facility outside of Santa Ana or have its contract with the county terminated, according to their Supreme Court filing.