A Fresno County Superior Court judge had no conflict of interest because he was a Facebook friend of a lawyer whose client got a $4.58 million judgment in his favor last year, a retired judge hired to study the case found.
Judge Robert Moody said that Fresno County Superior Court Judge Jeffrey Hamilton didn’t have a conflict after he commented on a Facebook posting of lawyer Jeff Hammerschmidt’s family. The conflict contention came after the ruling in favor of Hammerschmidt’s client, who filed a trade libel and defamation case against recreational vehicle competitor Paul Evert and two of his employees.
The case involved efforts by Evert and the employees to put competitor Bob Brewer out of business. Brewer operated Fresno RV and Clovis RV.
One of Evert’s employees, a former employee of Clovis RV, began spreading rumors among RV financing companies about Brewer’s company either going out of business or being under investigation by the state Department of Motor Vehicles. Another Evert employee called the DMV and said Brewer was engaging in bank fraud. Testimony showed that an Evert employee had created fraudulent documents the DMV relied on to raid Brewer’s business.
At the start of the trial, Moody said Hamilton disclosed that he had a friendship with Hammerschmidt, which would have allowed Evert’s lawyers to ask Hamilton to recuse himself. It was only after Hamilton ruled on the case that Evert’s lawyers hired an investigator to learn about the extent of the friendship. They claimed that a Facebook entry with a picture of Hammerschmidt’s family was the basis for their motion for a new trial. Hamilton had commented on the picture, saying “Nice looking photo of you all.”
In their motion, Evert’s lawyers, Gregory Dyer and Michael Johnson, said that the note on the Facebook photo showed that Hammerschmidt and Hamilton were “closer than previously disclosed.”
In seeking a new trial, they said the friendship violated a Judicial Ethics Advisory Committee of the California Judges Association. The committee’s opinion says that a judge should “unfriend” an attorney who has a pending matter in front of him and that interactions must cease. That opinion, Moody emphasized, is advisory, not mandatory.
In his response, Hamilton said that he had twice disclosed the friendship to all the case lawyers during the earliest stages of the trial and they didn’t choose to disqualify him. Hamilton rarely used Facebook, posting 13 times in five years. He had 36 friends and wrote in a declaration that the “issue of Facebook, generally, or as it related to attorney Hammerschmidt specifically, was never on the radar.”
After the Facebook issue came to his attention, Hamilton disqualified himself. His ruling was later signed by another judge.
In his ruling on the new trial motions, Moody said Evert’s lawyers had grounds to disqualify Hamilton but waived those rights. Moody said Hamilton disclosed the friendship and held a 16-day court trial. It was eight months later that Evert’s lawyers said Hamilton should have been disqualified, five months after the tentative decision and a month after the final statement of decision ruling against Evert and his two employees.
Moody said Evert’s lawyers had a “gold-embossed invitation to request recusal” when Hamilton declared his friendship with Hammerschmidt. “The petition for disqualification in this case was not timely filed, and the grounds for disqualification were waived,” Moody said.
He said Hamilton had a duty to disclose his relationship, and did. “That does not mean he had the obligation to disclose every detail, every facet, every nuance, of that friendship,” Moody said. “And according to his statement, he did not think of the Facebook issue at all.”
Moody described the failure to disqualify Hamilton as a “tactical error” by Evert’s lawyers.
“For such an oversight to be made by a group of highly skilled and experienced practitioners such as those in this case must be seen as extremely unlikely,” Moody wrote in his order denying the new trial.
It’s not known whether Evert will appeal. Dyer, a lawyer for Evert, had no comment on the ruling. Johnson, the other lawyer, could not be reached for comment.