The state appellate court in Fresno has declined to review the disqualification of a judge who issued a $4.5 million verdict against Paul Evert's RV, 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 Wednesday that it had denied a petition filed on behalf of Fresno RV Inc., which had prevailed in the eight-month trial.
But Judge Jeffrey Hamilton hadn't signed the final judgment before he recused himself.
Now, Judge M. Bruce Smith will take over the case from Hamilton -- unless Fresno RV asks the California Supreme Court to review the petition.
Jeff Hammerschmidt, one of the attorneys for Fresno RV, said Thursday his client has 15 days to make that decision. But if no petition is filed with the state's high court, Hammerschmidt said Smith will have options: he can sign the final judgment, modify it, or order a new trial.
Evert's attorney, Michael Johnson of San Francisco, said Thursday that he does not comment on pending litigation.
In January, Hamilton concluded the non-jury trial by ruling that Evert and his employees tried to put Fresno RV owner Bob Brewer out of business by spreading rumors that he was under investigation by state regulators.
On Feb. 28, Hamilton removed himself from the case after attorneys for Evert's RV filed a motion to disqualify him because of his friendship with Hammerschmidt.
Evert's lawyers say in court papers that Hamilton's Facebook activity closely linked him and his family to Hammerschmidt and his family -- and that the judge had erred by not fully disclosing it before the start of the trial. Evert's lawyers pointed to comments that Hamilton made on a photo posted by Hammerschmidt showing Hammerschmidt and his family: "Nice looking photo of you all!" The comment was posted while the punitive damages phase of the trail was underway in December.
Hamilton, who was appointed to the Superior Court bench in 2005, has declined to talk about the case, citing judicial ethics. In the court declaration where he disqualifies himself, 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.
Hammerschmidt said Thursday his friendship with Hamilton was never a secret. "They didn't make an issue of it until after they lost the case," he said.
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