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AUG 1 S, .. 2013

. . J.. .IZ...... k By K. Avtla, 11"':'' •. er

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAME�TO

KATINA RAPTON, Case No. 01FL06813

Petitioner, Department 12!5

v. VERlFmD ANSWER TO CHALLENGE FOR CAUSE

ANDREW GUS KARRES, (Code Civ. Proc., § 170.3(c)(3))

Respondent. .

16 On August 12, 2013, a Challenge for Cause Against Judge Jaime R. Roman in the above-

17 entitled case was received in Department 125 of the above court pursuant to Code of Civil

18 Procedure section l70.3(c)(1).1 The Challenge was supported by the declaration of Respondent

19 Andrew Gus Karres, and the Verified Objection of Sharon M. Huddle, attorney for Respondent,

20 along with Points and Authorities.

21· As set forth in Respondent's Points and Authorities, the Challenge is based on the grounds

22 expressly stated in section 170.l(a)(6)(A)(iii).

23 Accordingly, I respond to the challenge for cause in the present case and declare as

24 follows:

25 I. I am a Judge of the Superior Court of California, County of Sacramento, and

26 consistent v.'ith California Rules of Court, Standard 5.30(b), have been assigned to preside over

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2 8 1 All section r�ferences are to the Code of Civil Procedure. 1

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the present action.

2 2. I deny that a person aware of the facts might reasonably entertain a doubt that I

3 would be able to be impartial in the present action pursuant to section 170.1 (a)(6)(A)(iii).

4 3. As alleged in Respondent's and his counsel's declarations, I funher deny that I am

5 prejudiced or biased against Respondent.

6 4. California Rules of Coun, Standard 5.30(b) promotes fam ily law actions being

7 assigned to the same judicial officer for all purposes. Assigned to Family Law in August 2010, I

8 first presided in this matter in the Summer of 2011. And with some exception due to illness or

9 leave, this matter has appeared on my calendar with some frequency.

10 5. This case is a 12-year old matter that presently includes no less than 20 court files

11 in, presently, three banker boxes. It is replete with motions, appearances, and orders.

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The parties have a child, Lexi. She is 14 on August 17,2013.

Fo llowing a trial before the Ron. Trena Burger-Plavan in 2008, custody of the

child was awarded to mother.2 Various conditions were imposed on father. He has a-ppeared

before various judicial officers: Hon. Eugene Balonon, Ron. Trena Burger-Plavan, Hon. Thomas

M. Cecil, Hon. Matt Gary, Hon. Maryanne Gilliard, Han. Helena R. Gweon, Hon. Ketuleth L.

Hake, Ron. Judy H. Hersher, Hen. Peter McBrien, Hon. James E. McFetridge, Hon, Louis R.

Mauro, Hon. James Mize, Temporary Judge Gary O'Dell, Hon. Michael Ullman, and the

undersigned. The matter has involved various custody evaluators or mediators?

8. My first involvement in this matter occurred on July 8, 2011.4 My hearings have

been limited to law and motion matters . Because of the history of this matter and its

incrementally increasing issues, at respondent's instance, 5 I maintained a chronology of events as

reflected in my various orders or tentative rulings submitted by respondent incident to his

motion.6

1 Respondent's Volume I, Exhibit N, Finding 8. 3 Respondent's Volume 1, Exhibits A, para. 2; and N, Finding 6. 'Respondent's Volume I, Exhibit L, page 6: 6. l Respondent's Volume 1, ExhibitL, page 6:7-19. 'Respondent's Volume 1, Exhibits B, F, I, N; Volume 2, Exhibits R, T, Z; and Volume 3, Exhibits 6, 22, 23.

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10. In counsel's submission on behalf of her client, she alludes to a comment about

"sticks and stones" as "undignified and belittling to Father."7 The court includes its entire

statementfrom the record (Respondent's Voh.une 1, Exhibit L, p. 5:10-8: 14) to both reflect the

license incident to this motion but more importantly what the court for continues to attempt to

promote despite respondent or his counsel's focus:

THE COURT: What do I do when I get a twelve-and-half-year old child that says

that her father is a racist, her father makes disparaging remarks about her mother's lifestyle, that

her grandparents make comments about it, and the twelve and a half year old is saying 1 don't

want to see my dad. You are not addressing what the real issue is, sir. You have a twelve-and-a­

half-year-old-little girl that doesn't want to be with you, doesn't want to see you. Talk to me

about that.

THE RESPONDENT: Hey, I've gone ahead and I talked. I even brought it to

Judge Burger's attention at the time in 2009 by her trying to suspend my time, not allowing to

give me more additional time, would only put a farther wedge. I brought it to your attention

many times. How can you compete when she makes 65 million dollars,

THE CO'CRT: Let's talk about-

17 THE RESPONDENT: The money is the influence here.

I 8 THE COURT: I need you to be quiet for a moment. I really do. What you attempt

19 to try to do is drag me into some triangulation, and I'm not going to do that. I'll tell you, I woke

20 up really early this morning thinking about this case because I don't know when I first met you,

21 but I think it was sometime in 2011 with you coming here.

22 THE RESPONDENT: July gth, 2011.

23 THE COURT: Thank you, because I don't recall. And in all fairness, you are the

24 person from where Department 120 sits that is primarily responsible for me doing these tentative

25 rulings because I remember when you said to me, Judge, look over the history of this case, and l

26 suddenly realized once I went through your case that this Department, as you are very well aware

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28 7 Verified Objection, p. 5:1-6.

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1 of, has been a revolving door, and I was surprised to see that you had had fourteen judges on your

2 case, and I - it really troubled me. I don 't know where it went on a ce rtain direction, but that is

3 why for all of the cases that come into this Department I make a point of now doing, and have

4 been doing, tentative rulings since this particular case.

5 But what troubled me when I thought about your case this morning was that old adage that

6 I can remember when I was a little kid, and when you have children at some point you say to

7 them, sticks and bones [sic) may break by bones, but words will never hurt me, There have been

8 times from where I sit I see your former wife, and I've realized, and I suspect that every person in

9 this room realizes, that in family law, in family law, WOl'dS do hurt, words do have an atiect. I've

10 seen the effect of what your language, your demeanor and the words that you have used on

11 various occasions have had on the other side ofthls table, and when I read what Mr. Akagi filed

12 with the Court yesterday in terms of the things your daughter has said, is that you are hurting your

13 little girl.

14 I'm not the enemy, and neither is she at this point. It's when you look in the mirror. It's

15 the way you are interacting with this twelve-and-a-half-year-old girl, and, ftan!dy, I thought about

16 it. I've never met her, and I get literally scores of children every day, and a lot of times I wonder

17 what their little lives are like . You know, they get up in the morning, they have friends, they go

18 to school, they try to live lives, and when I occasionally- I don't get many reports like this, to be.

19 blunt, where you get a child that says I don't want to see my dad. I'd probably say probably in

20 the year and a halfl've been here, and I have one more year here, so it may be five cases where I

21 have had a child say I don't want to be 'l'.ith my dad.

22 And to be fair to yo u, you are not physically abusing her, you are not sexually molesting

23 her, because I get that here in this room, but the anger that you express to that side of the table is

24 impacting that twelve-and-a-half-year-old child, and I'm really appealing to you, Mr. Karres, if

25 there is some to appeal to you because I honestly don't know what to do any more, but I want you

26 to have a relationship with that little girl. I want that little girl to have that relationship with you,

27 and, you know, fme, you can have , you know, comments about people, you can do that. You

28 have a First Amendment right to do that. I respect that. This is a country that allows that. This is 4

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1 your daughter, and so when you turn to me and say, Judge, what Mr. Akagi -I'm not as

2 concerned with Mr. Akagi's impression or recommendation. Right now what I'm concerned

3 about, in all fairness, sir, is what do I do with Lexy when Lexy says to me, through Mr. Akagi,

4 which the law allows, I don't want to see my dad. Help me get to a point where can facilitate

5 that . I've got to do something. I have to assume that you want to see her, and that this isn't just

6 grandstanding for the sake of I want to be a victim. I don't believe that of you. I don't want to

7 believe that of you because that would be even more hideous. But help me, how do I get to a

8 paint where she wants to see you? Help me with that,

9 10. On November 13, 2012, following various motions filed by each party, and

10 pursuant to section 2009, I determined the matter on the submissions filed, issued various orders,

11 including, designating respondent a vexatious litigant and vacating the hearing set for November

12 14, 2012.8

13 11. Respondent in his submissions seeks to characterize the court's consideration of

14 his matter 8.'l reflecting bias or prejudice. On January 24, 2012, in response to both mother's

15 motion and an immediate referral to Family Court Services for an interview of the child pursuant

16 to Family Code section 3042, I restricted paternal parenting time to agency supervised therapeutic

17 visitation. The matter was set for trial in March and April 2012.9 The parties, by and through

18 counsel , entered into various stipulations before Judge McBrien. Subsequently, father sought

19 relief from a stipulation. Inasmuch 8.'l Judge McBrien later recused himself from further

20 proceedings pursuant to section 170.1, the matter returned t o my department. I upheld the

21 parties' stipulation with respect to a particular visitation facilitator.10

22 12. The parties' stipulated facilitator subsequently withdrew from the matter;

23 whereupon, I commenced a reunification process that involved respondent obtaining a therapist

24 who would work with the child's therapist. Incident to that process, I directed a report from the

25 paternal counselor. Inasmuch as father alluded to maternal inconsistencies incident to a

26 'Respondent's Volume 3, Exhibits 6 ll!ld 12.

27 9 Respondent's Volume 1, Exhibit L.

28 10 Respondent's Volume 2, Exhibit Z.

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I deposition ofFCS mediator Marie Sims, I also directed that a copy of the deposition be provided.

2 Both father's reunification progress and the deposition of Ms. Sims were to be provided to the

3 court on August 12, 2013. Instead, father served the court with his 170.1 motion.

4 13. In reviewing father's and his counsel's submissions, they alleged bias and

5 p rejudice on my part from various rulings that either disregarded certain paternal statements,

6 �;ounsel statements, or considered some evidence more dispositive than other evidence.

7 14. Respondent, in his submissions, focuses on several other both factual and legal

8 matters:

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A.

B.

That the etiology of the court's bias or prejudice arose from a complaint to

the Bureau of State Audits, a State Senator, or the Attorney General. That

perception may be respondent's. It is not the court's. As respondent's

record reflects, the court perceived respondent's service of the complaints

on the court as nonsensicaL Mindful of the focus of this court, and newly

acquainted with respondent, it was difficttlt for me to comprehend the

purpose of respondent in providing such complaints. While he has a

Constitutional right to complain to the executive or legislative branch, that

he would think such complaints would be dispositive to the issues pending

or somehow influence this court where those p arties lacked standing

displayed a prudential lack of circumspection. This can hardly be evidence

of bias ot prejudice.

That the court's reference to the child's claim that father uttered racist

comments as a determination that father is a racist by the court. It is not.

Rather the court referenced the child's characterization of her father, 11

And indicated that whatever statements the child perceives the father

made-although words-were evidently hurtful to her.12 This court-a

family law court-is consistent with statl.ltory authority focused on the

11 Volume 1, Exhibit L, page 5: 10-12

12 Volume 1, Exhibit L, pages 6:20-8:14. 6

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child's best interest. This can hardly be evidence of bias or prejudice.

That the court's "gag order" re paternal (or his counsel's) comments re

mother' s sexual orientation, her partner or her friends was politically

motivated by the court. It is not. Rather, statements alluding to a person's

sexuality, absent a clear nexus, are not dispositive of the issues before this

court relating to custody or parenting . But, more importantly, comments

relating to protected classifications simply have little relevance. That

father continued to utter statements compelled judicial intervention. Such

paternal improprieties can hardly be evidence of judicial bias or prejudice.

Similarly, father's or his counsel's references to mother's cohabitation with

her partner are equally inapposite. The court's remonstration can hardly be

evidence of judicial bias or prejudice .

Father's subsequent references to ethnicity or nationality are not

dispositive. The com't' s deliberate disregard of such references can hardly

be evidence of judicial bias or prejudice.

Father's complaint that Claudia Dias lacked a license as it pertained to

Judge McBrien's 52-anger management order ignored the establishment of

Ms. Dias' program incident to the Penal Code (which did not require

mental health professional licensure). Further, respondent's reference to

Ms. Dias' cancelled license ignores the non-disciplinary effect of such

administrative action. Regardless, Judge McBrien's order was entitled to

deference by this court and notwithstanding Ms. Dias' lack of licensure did

not obviate the requirement that respondent participate in anger

management. This can hardly be evidence of bias or prejudice.

That the court did not adopt the argument of counsel in findings. It is

fundamental that such arguments are not evidence. This can hardly be

evidence of bias or prejudice.

That the court, while counsel was speaking, was typing. In Sacramento 7

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County, the court authors the Minute Order. My handwriting is not always

legible. To the extent possible, I i)pe. The court, in the limited period of a

law and motion calendar, acknowledges using a computer to memorialize

matters and, to the extent possible, issuing orders after hearing based on

evidentiary submissions articulated or referenced. This can hardly be

evidence of bias or prejudice.

That the court has not responded with specific findings or comments on

issue s raised by respondent in his 170.1 challenge at various times in this

case rises from a judicial focus on relevance. The intractability extant in

this matter has a paternal etiology. While father, in his instant motion

complains of the court's focus on the past, it is his past errant conduct as

perceived by his daughter that has focused the court on the process of

reunification. A difficulty posed by respondent is an ongoing effort to

focus less on his daughter and more on her mother. That focus does little

to further the paternal- child relationship. The court's remedial efforts­

however ill received by respondent-are not evidence of bias or prejudice.

Respondent's reference to the court shaking papers, putting papers over the

court's head, and then dropping papers on the bench has no context, unless

it was a reference to the volume of documents being provided just prior to

hearing. The court, simply put, is unable to respond to the allusion nor

comprehend how this is evidence of bias or prejudice.

Respondent has repeatedly claimed that petitioner has committed perjury.

Such a detennination is a legal conclusion. No evidence has ever been

presented that petitioner has been convicted of Penal Code section 118.

The court's failure to adopt respondent's perception of events in the

absence of a conviction is not evidence of bias or prejudice.

Respondent references a January 2010 long cause hearing and ascribes prejudice to

28 the undersigned, notwithstanding at least two trials since that time before Judge Gweon and Judge 8

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McBrien.

A.

B.

Neither respondent nor his counsel set forth why such issues were not

p resented at the long cause hearing occurring before Judge Gweon in

October 2010, or

Neither respondent nor his counsel set forth why such issues were not

6 presented at the long cause hearing occurring before Judge McBrien in

7 April 2012.

8 Father's claim that "Judge Roman does not want to hear anything from Father, he seeks only to

9 avoid Father ever having a day in court to prove any legal issues, or defend against any legal

10 issues presented by the Mother" as being closed ignores the history of this matter. 13 The history

11 of this matter belies the undersigned's bias or prejudice.

12 12. The Court declines to recuse himself from further actions in this proceeding.

13 I further and separately allege that:

14 1. A judge must decide any proceeding in which the judge is not disqualified.

1 S (Section 170.)

16 2. Respondent's Challenge for cause fails to state facts sufficient to constitute a

17 disqualification. A statement of disqualification is in the nature of a pleading. As s:uch, a request

18 for disqualificati on must set forth facts constituting the grounds for disqualification. (Code Civ.

19 Proc., § 170.3(c)(1).) The ground for disqualification must be established as a fact. (Oak Grove

20 School Dtsl. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 705,) Mere allegations setting

21 forth the conclusions ofthe declarant do not comply. (Ephraim v. Superio1· Court (1941) 42

22 Cal.App.2d 578, 578-579; In re Morellt (1970) 11 Cal.App.3d 819, 843; Urias v. Harris Farms,

23 Inc. (1991) 234 Cal.App.3d 415, 426.) In this challenge, neither Respondent nor his attorney has

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25 u Volume 2, Exhibit Z, Legal Conclusion 6: "The very nature of a family law action is such that the universe of issues that may be considered at a long cause hearing is vast. Thus, the Sacramento County Superior Court requires

26 the parties to me and serve a statement setting forth each issue in dispute, and the legal rnd factual basis in support of each oftho party's respective contentions [footnote]. This pleading, referred to as a "Statement oflssues In Long

27 Cause Cases" becomes the d• facto operative pleading for a long cause hearing. Further, Rule 14.03 provides that failure of any party to specify an issue in dispute In a statement of issues may result In an issue sanction (e.g., no

28 evidence may be presented relating to omitted issues) [footnote]." 9

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presented specific facts in their declarations to demonstrate that I cannot be fair and impartial in

2 this case,

3 3. The standard for disqualification provided for in section 170.l(a)(6)(A)(iii) is

4 fundamentally an objective one. (Briggs v. Superior Court (2001) 87 Cal,App.4th 312, 319; Flier

5 v. Superior Court (1994) 23 Cal.App.41h 165, 170.) The stllndard is whether a reasonable person

6 knowing all of the facts and looking at the circumstances at the present time would question the

7 impartiality of the court, (United Farm Workers of America v. Superior Cotll't (1 985) 170

8 Cal.App.3d 97, 104-105; Leland Stanford Junior Unlv. v. Superior Court (1 985) 173 CalApp.3d

9 403; Flier v. Superior Court, supra, at 170,) The situation must be viewed through the eyes of

10 the average person on the street as of the time the challenge is brought. (Ibid. at 104,)

11 4, Whlle this objective standard clearly indicates that the decision on disqualification

12 not be based on the judge's personal view of his or her own impartiality, it also suggests that the

13 litigant's partisan views not provide the applicable frame of reference. (United Farm Workers of

14 America v. Superior Court, supra, 170 CaLApp.3d at p. 104, fn. omitted; Leland Stanford Junior

15 Univ. v. Superior Court, supra, 173 CaL App. 3d at 408, "the litigants' necessarily partisan views

16 [do] not provide the applicable frame of reference.") The facts and circumstances prompting the

17 challenge must be evaluated as of the time the motion is brought (ld. at p, 105) and the evaluation

18 of a challenge under section 170.1 (a)(6)(A)(iii) must not isolate facts or comments out of context.

19 (Flier v, Superior Court, supra, 23 CaLAppAth 1 70.) The challenge must be to the effect that the

20 judge would not be able to be impartial toward a particular party. (Ensher, Alexander & Barsoom

21 v, Ensher (1964) 225 Cal.App.2d 318, 322,) In this case, the Challenge is based on Respondent's

22 and Ms. Huddle's own evaluation and perception that I cannot be impartial.

23 5. Bias exists where the judge evidences a predisposition to decide a cause or an

24 issue in a certain way, which does not leave the mind perfectly open to conviction, (Pacific &

25 Southwest Annual Conf ofUntted Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72,

26 86.) Where the allegation of bias is a factual issue as Respondent or his counsel has alleged in

27 their submissions, Judge Roman's denial of prejudice by itselfis sufficient evidence to support a

28 fmding of no bias in this case unless Respondent can show otherwise. (Dietrich v, Litton 10

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Industries, Inc. (1970) 12 Cal.App.3d 704, 718.) The burden therefore is on the party seeking

disqualification to produce evidence to establish the existence of bias and prejudice. (See Estate

of Buchman (1955) 132 Cal.App.2d 81, 104; Go/ish v. Feinstein (1932) 123 Cal.App. 547 549.)

Under this standard, the burden of proof is on Respondent as the party claiming bias in this case

to establish facts supporting the position and in the absence of proof, the presumption is that no

bias or prejudice exists. (Betz v. Pankow (1993) 16 Cal.App.41h 919, 926.) Respondent has not

produced evidence to meet this burden of proof to require the disqualification of Judge Rom!m.

6. Moreover, it is clearly apparent that Respondent is seek ing tl1e disqualification of

Judge Roman on the grounds of bias and prejudice based on the Court's fmdings pertaining to the

parties in the present proceeding as set forth in its various rulings and orders. It shall not be

grounds for disqualification that the judge has in any capacity expressed a view on a legal or

factual issue presented in the proceeding. (§ 170.2(b).) It is well settled in this state that the

expressions of opinion uttered by a judge, in what he conceives to be a discharge of his official

duties, are not evidence of bias or prejudice. (Kreling v. Superior Court (1994) 25 Cal.2d 305,

310-311; McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11; Fishbaugh v. Fishbaugh

(1940) 15 Cal.2d 445, 456; Evans v. Superior Court (1930) 107 Cal.App. 372, 381, expression of

opinion by a judge upon a question of law does not disqualify him upon another hearing of the

case.) Thus, in carrying out his judicial duties in the present case, the rulings and orders issued by

Judge Roman are not evidence of bias or prejudice.

7. It is also well established that legal rulings, conclusions, and opinions based upon

21 observation and experience in the case are not indicative of bias or p rejudice. (In reMarriage of

22 Lemen (1980) 113 Cal.App.3d 769, 789.) Judicial rulings alone almost never constitute a valid

23 basis for bias. (Ltteky v. United States (1994) 510 U.S. 540, 555; see also People v. Guerra

24 (2006) 37 Cal. 4th 1067, 1111-1112.) The mere fact a judicial officer rules against a party does

25 not show bias. (In re Marriage ofTharp (2010) 188 Cal,App.4th 1295, 1328.) Likewise, a trial

26 court's numerous rulings against a party-even when erroneous-do not establish a charge of

27 judicial bias, especially when they are subject to review. (Guen·a; Andrews v. Agricultural Labar

28 Relations Bd. (1981) 28 Cal. 3d 781, 795-796; McEwen v. Occidental Life Ins. Co., supra, 172 11

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Cal. 6, 11; see Ryan v. Welte (1948) 87 Cal.App.2d 888, 893, a wrong opinion on the law of a

case does not disqualify a judge, nor is it any evidence of bias or prejudice.) If Respondent is

objecting to the ruling of the Court, his proper remedy is to challenge the ruling and seek review

by appeal or writ.

DATED: August/..Z 2013

10 VERIFICATION

1 1 I, JAIME R. ROMAN, declare:

PERlOR COURT

12 I am a duly appointed/elected Judge of the Superior Court of California, County of

13 Sacramento, and am the judge to whom the challenge for cause is directed.

14 I have read the foregoing VERIFIED ANSWER TO CHALLENGE FOR CAUSE and

15 know its contents. The statements set forth therein are true and correct to my knowledge, except

16 to matters in it stated on my own information and belief, and to those matters I believe it to be

17 true.

1 8 I declare under penalty of perjury under the law of the State of California that the

19 foregoing is true and correct.

20 DATED: August� 2013

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