Is a real-life friendship less meaningful than a Facebook friendship?
If a judge discloses that a lawyer who comes before him on a case is a friend, but fails to say that he and the lawyer are Facebook "friends," has the judge hidden important information?
What about if the judge makes a single, non-legal comment on the attorney’s Facebook page at some point before the conclusion of the case? Does that mean he has lost the ability to be impartial?
Yes, say attorneys for Paul Evert’s Country RV in Fresno, who have called into question the impartiality of Fresno County Superior Court Judge Jeffrey Hamilton, who slapped Paul Evert and two of his employees with a multimillion-dollar defamation judgment.
A casual friend of Hamilton’s, attorney Jeffrey Hammerschmidt, served as an attorney for the winning side, a competing RV dealership. (Selling RVs, to paraphrase an axiom from politics, is not beanbags. More on that in a moment.)
In a court petition seeking the judge’s removal and a new trial, attorneys for Paul Evert’s RV Country said Hamilton’s failure to mention his social media relationship with Hammerschmidt meant his description of their friendship as “casual” was “incomplete and seemingly misleading.” (The pair once worked together in the Fresno County district attorney's office.)
To his credit, Hamilton removed himself from the case two weeks ago, just before he was to sign off on his final judgment awarding about $4.5 million to Bob Brewer, who owns Fresno RV and the now-defunct Clovis RV.
In his declaration, Hamilton noted that over the months-long course of the trial and its penalty phase, attorneys had "no problem" with his friendship with Hammerschmidt, which he had disclosed to them twice. The judge said it never occurred to him that a Facebook friendship, and lone comment he made last December on a photo Hammerschmidt had posted (“Nice looking family!”), would change that.
(I think Facebook has cheapened the very meaning of the word "friend." I can't be the only person who has ever commented on a photo of someone I can’t stand, but am “friends” with anyway. Can I?)
And it wasn’t as if the defendants did not have plenty of time to check out the judge’s Facebook alliances. The non-jury trial began in May. Hamilton found in favor of the plaintiffs in September and made his final damages determination in January. The losing side did not move to disqualify the judge until Feb. 18.
The case has been assigned to a new judge, who can either sign off on Hamilton’s judgment or order a new trial.
But there’s a new wrinkle.
The winning side, i.e. the guy who was defamed, is not sitting by and letting Judge Hamilton disqualify himself without a fight. Brewer has asked California's 5th District Court of Appeal to overrule the judge’s self-disqualification. Last week, in response, the higher court issued a stay; nothing else can happen on the case until it rules on the disqualification.
“No one complained about the judge being impartial, or questioned it during the trial,” said Fresno appellate attorney Scott Reddie, who is representing Brewer. “That happens quite frequently in a place like Fresno. Attorneys know the judges.” Hamilton, he said, had presided over the trial in an impartial fashion. “This is just a litigation strategy.”
We’ll see what the Court of Appeal decides.
In the meantime, you’re probably wondering what on Earth an RV dealership could have done to another to get slammed with a $4.5-million defamation judgment. It’s Byzantine, but I’ll try to make it simple:
According to court documents, the defendants (dealership owner Paul Evert, vice president and general manager Charles Curtis and finance manager Aaron Lyon) ginned up a plan to destroy Brewer's business by spreading rumors that his shops were under investigation by state regulators.
Lyon had previously worked for Paul Evert’s Country RV, and after getting fired in 2007, went to work for Brewer's dealership in Clovis. But in 2009, after some unpleasantness, he left Clovis RV and returned to Paul Evert’s shop. (Which, by the way, was referred to throughout Judge Hamilton's rulings as "PERV," which Evert's attorneys rightfully described as "unnecessary" and "troubling.")
About that unpleasantness: While working at Clovis RV, Lyon became romantically involved with the office manager. Their relationship went south, and Lyon blamed owner Brewer for helping the woman get a restraining order against him, according to court documents. When Lyon left Clovis RV, according to testimony in the case, he vowed to “take Bob Brewer down.” Within a month, he was rehired by Evert.
Lyon, according to Brewer’s lawsuit, began to spread rumors about Brewer’s dealerships: They were failing, Brewer was being investigated, Brewer was going to jail.
The accusations led to a raid by state regulators on Brewer's Clovis dealership. Lyon testified that he had alerted local news outlets to the raid, and watched it from across the street. Also, he was paid a $10,000 bonus by Evert the day after the raid.
No charges were ever filed against Brewer’s business.
But there were some falsified loan documents. In fact, the judge said in his ruling, the false documents had been created by Lyon when he worked for Brewer at Clovis RV. Cutting and pasting, he inflated the salary of a local IRS employee from $44,000 to $61,000 in order to help him secure an RV loan. And then, taking chutzpah to a new level, Lyon turned around and told the Department of Motor Vehicles that Clovis RV engaged in lending fraud--using that deal as his example.
I am not sure what this all means for RV dealers.
But there's definitely a lesson in here for judges.
In 2010, unbeknown to Judge Hamilton, the California Judges Assn. Ethics Committee had recommended that judges “unfriend” attorneys who conduct business in their courtrooms. It's a good policy, especially in light of this case.
I do feel a bit for Judge Hamilton, who only had 36 Facebook friends. Earlier this month, when he agreed to disqualify himself from the case, he wrote that he had never unfriended any of them "out of concern that it might be taken as a personal affront and hurt the friend's feelings."
Well, that's sweet, but I daresay the lawyers have thicker skins than that.