Kassab v. San Diego Police Department et al
Filing
233
ORDER denying Plaintiff's 230 Ex Parte Motion to Disqualify Judge Cynthia Bashant. Signed by Judge Cynthia Bashant on 1/14/2015. (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ORDER DENYING PLAINTIFF’S
EX PARTE MOTION TO
DISQUALIFY JUDGE BASHANT
Plaintiff,
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Case No. 07-cv-01071-BAS(JLB)
STEVE KASSAB,
(ECF No. 230)
v.
SAN DIEGO POLICE
DEPARTMENT, et al.,
Defendants.
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Presently before this Court is an ex parte motion filed by Plaintiff Steve
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Kassab (“Plaintiff”) seeking to disqualify Judge Bashant pursuant to California
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Code of Civil Procedures 170.1(A)(6) through 170.6. During the Final Pretrial
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Conference, Judge Bashant tentatively denied Plaintiff’s motion and indicated a
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written order would follow. For the following reasons, the Court confirms its
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tentative and DENIES Plaintiff’s ex parte motion to disqualify Judge Bashant (ECF
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No. 230).
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I.
FACTUAL BACKGROUND
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Plaintiff had two pending cases before this Court. The first was a habeas
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petition filed in Kassab v. County of San Diego Detention, Case No. 13-cv-03182-
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KSC (S.D. Cal.). The parties have stipulated to Magistrate jurisdiction in that case
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and that case is now solely before Magistrate Judge Crawford. (See ECF No. 47 in
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Case No. 13-cv-03182 (S.D. Cal.).)
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The second case is the one currently pending before this Court and set for trial
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on February 17, 2015. This case was originally assigned to Judge Hayes. On
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November 4, 2008, Judge Hayes transferred the case to Judge Anello. (ECF No.
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85.)
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summary judgment and dismissed the action in its entirety. (ECF No. 123.)
On September 22, 2009, Judge Anello granted Defendants’ motion for
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The Ninth Circuit affirmed most of this ruling, finding: (1) “[t]he district court
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properly granted summary judgment on Kassab’s §1983 claims concerning the
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searches of his store, his arrest, and his prosecution;” (2) “[t]he district court
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properly granted summary judgment on Kassab’s excessive force claim alleging that
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defendant Nunez slammed a car door on his knee;” and (3) [t]he district court
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properly granted summary judgment on Kassab’s excessive force claims against the
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City of San Diego defendants.” (ECF No. 140.) The only issue reversed and
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remanded, and, therefore, the only issue currently remaining for trial is the excessive
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force claim against the individual officers claiming Plaintiff was subjected to
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excessive heat during his July 13, 2006 arrest. (Id.; see also ECF No. 181.) The
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Ninth Circuit found that in light of Plaintiff’s claims that he was detained in a police
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car for more than four hours, with the window rolled up, no air conditioning, in
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interior temperature of 115 degrees, leading to heat stroke, difficult breathing and
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almost passing out several times, this created a triable dispute as to whether
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Defendants Skinner and Hernandez used excessive force when arresting Plaintiff.
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(ECF No. 140 at pp. 2-3.)
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On November 9, 2011, Plaintiff filed an Emergency Motion to Disqualify
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Judge Anello and Magistrate Judge McCurine on the grounds that these judges “are
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biased and prejudiced against the Plaintiff” and believe “that all Iraqis are on the
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wrong side of the law until proven without fault.” (ECF No. 134 at pp. 1, 5-6.) In
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the Emergency Motion, Plaintiff claims these judges ignored or just cancelled his
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motions, and accuses them of “blatant bias, prejudice, discrimination, duress,
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coercion and retaliation…against Arab American litigants.” (Id. at p. 10.) Finally,
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Plaintiff argues these judges “facilitated crimes of the San Diego Police Department
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and it’s [sic] officers. They belong behind state prison bars with the rest of the
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defendants.” (Id. at p. 14.)
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On November 28, 2011, Judge Anello denied Plaintiff’s Emergency Motion to
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Disqualify, but in February 2012, Judge Anello transferred the case to Judge
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Bencivengo.
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transferred the case to Judge Curiel, and on May 13, 2014, Judge Curiel transferred
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(See ECF Nos. 136, 151.)
In October, 2012, Judge Bencivengo
the case to this Court.1 (See ECF Nos. 176, 210.)
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This Court has only issued two orders since the case was transferred in May
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2014. The first was to lift and deny a further stay of the proceedings. (ECF Nos.
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212, 214.) The second was to deny Plaintiff’s motion for appointment of counsel.
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(ECF No. 214.)2
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Plaintiff now moves to disqualify Judge Bashant alleging that she is “biased
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and prejudiced against the Plaintiff” and believes “that all Iraqis are on the wrong
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side of the law until proven without fault.” (ECF No. 230 at p. 2.) Plaintiff claims
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the judge has ignored or just cancelled his motions and accuses her of “blatant
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prejudice, discrimination, duress, coercion and retaliation…against Arab American
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litigants.” (Id. at p. 10.) In addition, Plaintiff claims Judge Bashant: (1) denied
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several of his pertinent motions; (2) failed to receive documents in and failed to hear
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his habeas petition promptly; (3) was a former Superior Court judge and is now
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“trying to protect her colleagues by covering up their mistakes and illegal
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wrongdoing against the Petitioner;” (4) previously worked at the San Diego City
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Although Plaintiff characterizes these transfers as “recusals,” in fact each
was a transfer that occurred in the normal course of business as new district judges
were appointed. These were not recusals.
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Five different attorneys have substituted in and out as counsel for Plaintiff
during the pendency of this lawsuit.
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Attorney’s Office and thus rules on City Attorney’s Office motions promptly and his
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motions slowly; (5) refused him access to a PACER (the court’s electronic records)
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account; and (6) “may represent [defendants] in legal matters pertaining to financial
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status.” (Id. at pp. 5-13.) Finally, Plaintiff claims Judge Bashant “facilitated crimes
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of the San Diego Police Department and it’s [sic] officers. She belongs behind state
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prison bars with the rest of the defendants.” (Id. at p. 13.)
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II.
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LEGAL STANDARD
Plaintiff files his motion for recusal under the California Code of Civil
Procedure, sections 170.1(A)(6) through 170.6.
to
this
federal
case.
Under
However, state laws are not
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applicable
the
federal
recusal
statutes,
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“[a]ny…judge…shall disqualify [her]self in any proceeding in which h[er]
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impartiality might reasonably be questioned.” 28 U.S. C. § 455(a). The judge shall
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also disqualify herself “[w]here [s]he has a personal bias or prejudice concerning a
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party, or personal knowledge of disputed evidentiary facts concerning the
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proceeding.” 28 U.S. C. §455(b)(1). In addition, where a party files “a timely and
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sufficient affidavit that the judge before whom the matter is pending has a personal
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bias or prejudice against him or in favor of any adverse party,” then the judge shall
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assign the case to another judge to hear such proceeding. 28 U.S.C. § 144.
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Under both federal statutes, the substantive standard is “whether a reasonable
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person with knowledge of all the facts would conclude that the judge’s impartiality
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might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th
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Cir. 2008) (citations omitted).
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informed, thoughtful observer,” as opposed to a “hypersensitive or unduly
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suspicious person.” Clemens v. United States Dist. Ct. for the Cent. Dist. Of Cal.,
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428 F.3d 1175, 1178 (9th Cir. 2005) (quotations and citation omitted). “Rumor,
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speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-
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factual matters” are not enough to require recusal.” Id. (citing Nichols v. Alley, 71
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F.3d 347, 351 (10th Cir. 1993)).
A “reasonable person” is defined as a “well-
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Ordinarily, the party must allege “facts that fairly support the contention that
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the judge exhibits bias or prejudice directed toward a party that stems from an
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extrajudicial source.” United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980).
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This “generally requires as the basis for recusal something other than rulings,
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opinions formed[,] or statements made by the judge during the course of the trial.”
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United States v. Holland, 519 F.3d 909, 914-15 (9th Cir. 2008). “[J]udicial rulings
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alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v.
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United States, 510 U.S. 540, 555 (1994).
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In addition, [i]t has long been established … that a party cannot force a judge
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to recuse him [or her]self by engaging in personal attacks on the judge.” Standing
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Comm. On Discipline of the United States Dist. Court For Cent. Dist. Of Cal. v.
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Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995). “[I]n the absence of a legitimate
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reason to recuse [her]self, a judge should participate in cases assigned.” Holland,
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519 F.3d at 912 (quotations and citations omitted).
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III.
DISCUSSION
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In this case, Plaintiff uses boilerplate language that he has already used
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against other judges assigned to the case, claiming without any factual support that
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the judge is biased against Arab Americans and specifically Iraqis and that she
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“facilitated crimes within the San Diego Police Department.” These allegations
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constitute nothing more than “rumor, speculation, beliefs, conclusions, innuendo,
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suspicion, opinion, and similar non-factual matters,” which is insufficient to warrant
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recusal. See Clemens, 428 F.3d at 1178 (citation omitted).
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In addition, the fact that this Court denied two motions filed by the Plaintiff in
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this case, or was slow to rule on another case filed by the Plaintiff, even if it were
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true, is insufficient grounds for recusal. Furthermore, it is unclear how the allegation
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that this judge is prejudiced in favor of former colleagues at the San Diego Superior
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Court relates to this case considering this case does not involve claims against
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judges of the Superior Court. This case involves allegations against two police
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officers, claiming they used excessive force in arresting Plaintiff.
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Next, Plaintiff’s allegation that this judge used to work at the City Attorney’s
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Office, and thus has been quick to rule on motions filed by the City Attorney’s
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Office and slow to rule on his motions, is unsupported by the docket in this case.
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Even if it was true that this judge previously worked at the City Attorney’s Office (it
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is not), she received this case eight months ago and has only ruled on two motions
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since receiving the transfer, none of which was filed by the City Attorney’s Office.
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Additionally, although Plaintiff claims this judge denied him access to a
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PACER account, he filed this motion via his PACER account, and the docket
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reflects that he has been given access in this case since September 2007, long before
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this judge was assigned to the case. (See ECF No. 24.) Finally, this Court is unsure
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what Plaintiff is making reference to when he says the judge “may represent
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[defendants] in legal matters pertaining to financial status.”
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Plaintiff’s affidavit is not sufficient to warrant referral to another judge.
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IV.
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Without more,
CONCLUSION
For the foregoing reasons, Plaintiff’s Ex Parte Motion to Disqualify Judge
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Bashant (ECF No. 230) is DENIED.
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IT IS SO ORDERED.
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DATED: January 14, 2015
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