Fresno appellate court might tackle Evert RV case

Judge in civil trial threw out $4.5 million verdict because of apparent undisclosed conflict

The Fresno BeeMarch 21, 2014 

A Fresno appellate court might tackle the sticky disqualification of a judge who issued a $4.5 million verdict against Paul Evert's RV in January, but then removed himself from the case after it was revealed he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court trial.

The 5th District Court of Appeal notified the Superior Court on Thursday that it is giving Evert's lawyers 15 days to respond to a petition filed by a lawyer for Fresno RV, Inc., which had prevailed in the eight-month trial.

Fresno RV hasn't collected the $4.5 million in damages because Judge Jeffrey Hamilton's Facebook page was cited in a motion to disqualify him before he could sign the final judgment.

Hamilton agreed to disqualify himself on Feb. 28 -- even though he said he had disclosed his personal friendship with Fresno attorney Jeff Hammerschmidt, one of the lawyers representing Fresno RV owner Bob Brewer, twice during the trial, and never corresponded with Hammerschmidt about the Evert case during the trial.

Now Fresno RV's appellate lawyer, Scott Reddie of Fresno, is trying to get Hamilton reinstated. If his appellate petition is successful, it could lead to Hamilton signing the final judgment, Reddie said Friday.

Evert's appellate attorney, Michael Johnson of San Francisco, said Friday he does not comment on pending litigation, but he does plan to oppose the petition.

In his petition, Reddie writes: "The issue here presents a classic case of a losing party playing fast and loose with the administration of justice."

He says Hamilton shouldn't have disqualified himself and Paul Evert RV forfeited its right to file a motion to disqualify because Evert's lawyers didn't object when the judge disclosed his personal relationship with Hammerschmidt at the start of the trial.

"The law is clear that such a motion must be brought at the earliest practicable opportunity, which would have been after the disclosure of the actual friendship," he writes.

Hamilton's Facebook friendship with Hammerschmidt also wasn't a secret; it could have been discovered by anyone, Reddie says.

"There is otherwise no alleged wrongful conduct or any evidence to support the questioning of Hamilton's impartiality," he writes.

Hamilton, who was appointed to the Superior Court bench in 2005 and is unopposed in this year's election, has declined to talk about the case, citing judicial ethics. In the court declaration where he disqualifies himself from the case, he says he told both sides on the first day of the trial in May that he is a friend of Hammerschmidt.

"No problem," all of the lawyers told Hamilton, according to the judge's declaration filed in Superior Court.

On Jan. 17, Hamilton concluded the non-jury trial by ruling that Evert and his employees tried to put Brewer out of business by spreading rumors that he was under investigation by state regulators.

A month later, Evert's lawyers notified Hamilton that his Facebook activity closely linked him and his family to Hammerschmidt and his family -- and that the judge had erred in not disclosing it before the start of the trial.

In their motion to disqualify, Evert's lawyers said the friendship between Hamilton and Hammerschmidt "was closer than had been previously disclosed by Judge Hamilton." They also noted that Hamilton had only 36 Facebook friends, including Hammerschmidt.

The lawyers cited evidence of the friendship: while the punitive damages phase of the trial was underway in December, Hamilton commented on a photo posted by Hammerschmidt showing Hammerschmidt and his family: "Nice looking photo of you all!"

But Reddie says in his petition that Hamilton's comment about the photograph had nothing to do with the case or any aspect of the law.

"Up to that point in time, no party had ever raised any issue or question about Judge Hamilton's impartiality," Reddie writes. "Yet Paul Evert's RV is now trying to use the publicly available Facebook friendship between Judge Hamilton and Hammerschmidt to start over and obtain a new trial."

In his declaration, Hamilton says he seldom used Facebook, posting only 13 times since opening an account five years ago.

He also says he was unaware that the California Judges Association's Ethics Committee wrote in 2010 that "when a judge learns that an attorney who is a member of that judge's online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e., the attorney should be "unfriended") and the fact this was done should be disclosed."

Though the Ethics Committee's opinion is advisory, Hamilton says he "does respect its value" and decided to disqualify himself to avoid any appearance of being partial to one side.

Reddie said Friday that Hamilton "likely consented to disqualification out of an abundance of caution."

The reporter can be reached at (559) 441-6434, plopez@fresnobee.com or @beecourts on Twitter.

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