It was cynical and seemed extremely unfair when Scientology leader David Miscavige pulled his stunt to remove Judge Robert Broadbelt from Jane Doe 1’s forced marriage lawsuit on April 16.
That morning at 10 am, a hearing was scheduled and Judge Broadbelt was likely to make final a tentative ruling he had posted on the court website the night before which declared Scientology arbitration to be “unconscionable.”
But before he could do that, Miscavige’s personal attorney, Jeffrey Riffer, showed up and informed the judge that Miscavige was making his first official appearance in the lawsuit, and his first act was to remove the judge with a peremptory challenge.
Our observer in the courtroom at the 10 am hearing told us that even Jane Doe’s attorneys seemed stunned by the audacity of it.
Well, now they’ve notified the court that they have filed with a state court of appeal a petition for a writ of mandamus to overturn Miscavige’s stunt, calling it “procedural gamesmanship.”
Also, Jane Doe 1 has asked for a stay of proceedings while she’s petitioning the appeals court, and also she filed a challenge to Judge Michael Small, who has now been replaced with Judge Kevin C. Brazile.
Wow, that’s a lot.
We’re going to quote from a few paragraphs of the petition that was sent to the appeals court.
First, they argue that Miscavige’s challenge to Judge Broadbelt was untimely.
Defendant Miscavige’s peremptory challenge to judicial officer was improperly granted because the challenge was untimely. In a civil case assigned to a judge for all purposes, a challenge under §170.6(2) should be made “within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance.” Civ. Code §170.6(2).
Defendant Miscavige is not the type of newly appearing litigant contemplated by the exception to the general rule. Civ. Code §170.6 is intended to allow parties who are new to a matter and who have not yet had an opportunity to judge the prejudices of a judicial officer to remove a judge. Here, Defendant Miscavige has been a named defendant in the case along with all other Defendants since the date of the filing of the complaint. Since that date, he has been heavily involved in the litigation before Judge Broadbelt. He has entered two special appearances to contest service with Motions to Quash filed on August 29, 2023, and November 1, 2023, appeared at a hearing on a Motion to Quash before Judge Broadbelt on February 8, 2024, and signed a Notice and Acknowledgement on March 21, 2024. Therefore, Defendant Miscavige, a named Defendant since the beginning of this matter, who has been heavily involved in the matter for months, may not take advantage of the exception providing additional time to file a motion under §170.6(2). Therefore, his challenge under §170.6(2) should have been made within 15 days after notice of the all purpose assignment. Because it was not, it was untimely.
And also, they say he made the challenge for an “improper purpose.”
Procedural gamesmanship and impermissible judge shopping would thrive under the reading of §170.6 proposed by the Respondent court. A party could simply avoid participation in a case while delaying use of a peremptory strike under §170.6— just long enough to preview a tentative ruling—only to opt out of that ruling by employing the yet unused peremptory strike. Certainly, Defendant Miscavige would not have moved pursuant to Civ. Code §170.6 immediately prior to the hearing on the Motion to Compel Arbitration but for the tentative ruling against Defendants.
Defendant Miscavige’s actions, and the decision by Respondent court to permit his peremptory challenge, completely undermine and invalidate the purpose of the tentative ruling system. The courts of this state have not allowed parties to “make a mockery of the tentative ruling procedure” in other contexts…
If the present ruling stands, the Respondent court will have reviewed an extensive record and lengthy briefings to produce a nineteen-page tentative ruling—all for no progress in the litigation. At the very least, the practice of issuing tentative orders prior to hearings is entirely incompatible with an interpretation of §170.6 that would allow a party to opt out of an unfavorable ruling altogether by delayed use of a peremptory challenge.
As we said ourselves, Dave was sandbagging, and took advantage of a court system that is just not set up to deal with an organization like Scientology that deals in nothing but bad faith.
Jane Doe 1 has had good luck at the appellate level in the past — you may remember that in the Bixler lawsuit (where she is also a plaintiff), the same appeals court district overturned a ruling forcing that case into Scientology ‘arbitration.’
Will she have the same luck this time and convince the appeals court to issue a writ? We are certainly rooting for her.
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I hope the special appearances shoot Miscavige in the foot. It is long past time.
Now the appeals judge gets to decide the difference between 'special appearances' and 'official appearances'. All because Judge Broadbelt let the cat out the bag with his proposed 'unconscionable' ruling. (He probably had to do that) Can the appeals court see the substitution for what it is, judge shopping? No matter how that turns out, I hope the next presiding judge gets Broadbelt's proposed ruling.