Legal Document: CALIFORNIA STATE GRANGE V. PARADISE COMMUNITY GUILDS, ET

On September 28, 2023 a Paradise Community Guild and Zink's Motion to Recuse the Honorable Tamara L. Mosbarger by CCP 170.1 - Motion for Challenge for Cause CCP 170.1 was filed involving a dispute between California State Grange, and Paradise Community Guilds, Zink, David L, for (42) Unlimited Other Complaint (Not Spec) in the District Court of Butte County.

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1 JAMES STANKOWSKI (SBN 106367)
james.stankowski@wilsonelser.com
2 KRISTA M. STOUMBOS (SBN 331241)
krista.stoumbos@wilsonelser.com 1/18/2024
3 WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP
4 655 Montgomery Street, Suite 900
San Francisco, California 94111
5 Telephone: (415) 433-0990
Facsimile: (415) 434-1370
6
Attorneys for Defendants
7 PARADISE COMMUNITY GUILDS and
DAVID ZINK
8

9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF TULARE
11

12 CALIFORNIA STATE GRANGE, a Case No. 23CV02728
California nonprofit corporation,
13 Judge: Hon. Tamara L. Mosbarger
Plaintiff,
14 DEFENDANTS PARADISE COMMUNITY
v. GUILDS AND DAVID L. ZINK’S NOTICE
15 OF MOTION AND MOTION TO RECUSE
THE HONORABLE TAMARA L.
16 PARADISE COMMUNITY GUILDS, an entity MOSBARGER PURSUANT TO C.C.P. §
of unknown form; DAVID L. ZINK, an 170.1; DECLARATION OF KRISTA M.
17 individual; and DOES 1 through 20, inclusive, STOUMBOS, ESQ.; DECLARATION OF
DAVID L. ZINK; REQUEST FOR
18 JUDICIAL NOTICE; PROPOSED ORDER
Defendants. PROOF OF SERVICE
19
Hearing Date: February 14, 2024
20 Time: 9:00 a.m.
Dept.: TBD
21

22 Complaint Filed: September 28, 2023

24
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
25
PLEASE TAKE NOTICE that on February 14, 2024, at 9:00 a.m., or as soon thereafter as
26
counsel may be heard in the department of the Honorable Tamara L. Mosbarger, or any judge
27
sitting in her stead, of the Superior Court of the State of California, County of Butte, located at
28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
1
1 1775 Concord Avenue, Chico, California, 95928, Defendants Paradise Community Guilds and

2 David L. Zink will, and hereby do bring this Motion to Recuse the Honorable Tamara L. Mosbarger

3 Pursuant to Cal. Code Civ. P. § 170.1.

4 This motion is made on the grounds that Defendants object to Judge Mosbarger being

5 assigned to any and all proceedings, hearings, and/or trial in this matter because she is either (1)

6 biased or prejudiced against Defendants due to Defendant Zink’s ongoing complaint, including

7 the substance of the complaint, with the Commission on Judicial Performance, or (2) a person

8 aware of the facts might reasonably entertain a doubt Judge Mosbarger would be able to be

9 impartial due to the ongoing complaint, including the substance of the complaint, or both. See

10 Cal. Code Civ. P. § 170.1(a)(6).

11 This Motion is based upon this Notice and Motion, the attached Memorandum of Points

12 and Authorities, the attached Declaration of Krista M. Stoumbos, the attached Declaration of David

13 L. Zink (including exhibits), the attached Request for Judicial Notice, and upon such other and

14 further pleadings, papers, or argument as may be presented to the Court at or before the hearing

15 on this Motion.

17 Dated: January 18, 2024 WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP
18

19
20

21
By:
22 __________________________________
Krista M. Stoumbos
23 Attorneys for Defendants
PARADISE COMMUNITY GUILDS and
24 DAVID L. ZINK
25

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
2
1
MEMORANDUM OF POINTS AND AUTHORITIES
2

3 I. INTRODUCTION
4 Defendant David L. Zink, President of Defendant Paradise Community Guilds, has an

5 active and ongoing complaint against Judge Mosbarger with the Commission on Judicial

6 Performance, as described further below and in his declaration submitted contemporaneously

7 herewith. Based upon the substance of the complaint, and the existence of the complaint itself,

8 Defendants respectfully request that Judge Mosbarger should either recuse herself or be recused

9 pursuant to Cal. Code Civ. P. § 170.1(a)(6).

10 II. BACKGROUND
11 Plaintiff California State Grange filed its Complaint on September 28, 2023. (Request for

12 Judicial Notice (hereinafter “RJN”).) Defendants Paradise Community Guilds and David L. Zink

13 (hereinafter “Defendants”) made their first appearance in this matter on December 28, 2023, when

14 they filed their Motion to Recuse the Honorable Stephen E. Benson Pursuant to Cal. Code Civ. P.

15 § 170.6 – Peremptory Challenge. (Declaration of Krista M. Stoumbos (hereinafter “Stoumbos

16 Decl.”); RJN.) After filing an Ex Parte Application to Advance the Hearing Date for Defendants’

17 Motion to Recuse Judge Benson, counsel for Defendants was notified via phone the relief was

18 granted. (Stoumbos Decl.)

19 Defendants have a scheduled Ex Parte Application regarding their Motion to Extend Time
20 for Responsive Pleading Pursuant to Cal. Code Civ. P. § 1054 scheduled to be heard on January

21 18, 2024. (Stoumbos Decl.) On January 17, 2024, counsel for Defendants received notification

22 via CourtCall that Judge Mosbarger was assigned to the hearing of January 18, 2024. (Stoumbos

23 Decl.) Defendants filed this motion at their first opportunity that was practicable, and submitted

24 the filing prior to the hearing on January 18, 2024.

25 Defendant Zink has an active and ongoing complaint against Judge Mosbarger with the

26 California Commission on Judicial Performance (“CJP”). (Declaration of David L. Zink

27 (hereinafter “Zink Decl.).) The substance of Defendant Zink’s complaint involves his concerns

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
3
1 that Judge Mosbarger violated Defendant Paradise Community Guilds’ right to due process under

2 the Fourteenth Amendment to the United States Constitution.

3 III. ARGUMENT
4 Under California Code of Civil Procedure Section 170.1, a judge shall be disqualified for

5 cause if any of the grounds specified is true, including: “[i]f for any reason… a person aware of

6 the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Cal.

7 Code Civ. P. § 170.1, subd. (a)(6)(A); Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063-1064.)

8 In addition, under the same section, “[b]ias or prejudice toward a lawyer in the proceeding may be

9 grounds for disqualification” of a judge. (Cal. Code Civ. P. § 170.1, subd. (a)(6)(B). Where a

10 judge has not recused herself, a party may file a written verified statement objecting to the hearing

11 or trial before the judge and setting forth the facts constituting the grounds for disqualification.

12 Ibid.

13 Defendants timely filed their Motion to Recuse Judge Mosbarger with Defendant Zink’s

14 application showing proof of the active complaint to the CJP. The substance of the complaint

15 itself involves Defendant Zink’s allegations that Judge Mosbarger was not impartial in rendering

16 her judgment of February 24, 2021, in a separate case involving the same parties. (Zink Decl.)

17 Grounds therefore exist for Judge Mosbarger to be recused on both (1) grounds of bias or prejudice

18 and (2) the ability for a person aware of the facts to entertain a doubt Judge Mosbarger would be

19 able to be impartial because Defendant Zink has submitted a complaint against her to the CJP.
20 Defendants respectfully request that their Motion to Recuse be granted.

21 Respectfully,

24 KRISTA M. STOUMBOS

25 Attorneys for Defendants
PARADISE COMMUNITY GUILDS and
26 DAVID L. ZINK
27

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
4
1 DECLARATION OF KRISTA M. STOUMBOS
2
I, Krista M. Stoumbos, declare and state as follows:
3
1. I am an attorney duly licensed to practice law in all courts in the State of California.
4
I am Of Counsel at the firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP. I am counsel
5
of record for Defendants Paradise Community Guilds and David L. Zink (hereinafter, collectively,
6
“Defendants”) in this action. The following facts are within my personal knowledge, and if called
7
upon to testify as a witness, I could and would testify competently thereto.
8
2. On September 28, 2023, Plaintiff filed its Complaint with allegations made
9
“[u]pon information and belief” that Defendants received funds from the PG&E Fire Victims
10
Trust for damage to the Paradise Grange Hall damaged in the Camp Fire in November 2018.
11
(Request for Judicial Notice (“RJN”).)
12
3. On December 28, 2023, Defendants made their first appearance in this action by
13
filing their Motion to Recuse the Honorable Steven E. Benson Pursuant to Cal. Code Civ. P. §
14
170.6 – Peremptory Challenge. (A true and correct copy of Defendants’ Motion to Recuse is
15
attached hereto as Exhibit 1.)
16
4. Defendants filed an Ex Parte Application to Advance the Hearing Date for their
17
Motion to Recuse Judge Benson. (RJN.)
18
5. On January 16, 2024, the date the Ex Parte Application was scheduled to be heard,
19
I received a voicemail stating the caller was a clerk of the Butte County Superior Court and the
20
ex parte relief was granted without hearing.
21
6. On January 17, 2024, I received a call from a CourtCall representative informing
22
me my reservation for the hearing on January 18, 2024, was assigned to Judge Tamara L.
23
Mosbarger.
24
7. Defendants submitted this filing as soon as practicable upon learning Judge
25
Mosbarger was assigned to the hearing.
26
8. Defendants object to Judge Mosbarger being assigned to any and all proceedings,
27
hearings, and/or trial in this matter because she is either (1) biased or prejudiced against
28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
5
1 Defendants due to Defendant Zink’s ongoing complaint, including the substance of the complaint,

2 with the Commission on Judicial Performance, or (2) a person aware of the facts might reasonably

3 entertain a doubt Judge Mosbarger would be able to be impartial due to the ongoing complaint,

4 including the substance of the complaint, or both. See Cal. Code Civ. P. § 170.1(a)(6).

5 9. Defendants respectfully request that Judge Mosbarger recuse herself from any

6 hearing and trial of this matter, or that the Court issue an order that Judge Mosbarger is recused.

8 I declare under penalty of perjury and the laws of the State of California that the

9 foregoing is true and correct.

10 Executed this 18th day of January, 2024, in San Francisco, California.

13 ____________________________
14 Krista M. Stoumbos

19
20

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
6
1 REQUEST FOR JUDICIAL NOTICE

3 Defendants Paradise Community Guilds and David L. Zink (“Defendants”) hereby

4 request this Court take judicial notice of the following evidence in accordance with California
5 Evidence Code Section 452(d)(1)-(2). Pursuant to California Evidence Code section 452(d):
6
Judicial notice may be taken of the following matters to the extent they are not embraced
7
within Section 451:
8 (d) Records of (1) any court of the state or (2) any court of record of the United States or
9 of any state in the United States.

10 Defendants specifically request that this Court take judicial notice of:

11 1. The electronic docket of this matter.

13
Dated: January 18, 2024 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
14

17 By: __________________________________

18 Krista M. Stoumbos
Attorneys for Defendants
19 PARADISE COMMUNITY GUILDS and
DAVID L. ZINK
20

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
7
1 JAMES STANKOWSKI (SBN 106367)
james.stankowski@wilsonelser.com
2 KRISTA M. STOUMBOS (SBN 331241)
krista.stoumbos@wilsonelser.com
3 WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP
4 655 Montgomery Street, Suite 900
San Francisco, California 94111
5 Telephone: (415) 433-0990
Facsimile: (415) 434-1370
6
Attorneys for Defendants
7 PARADISE COMMUNITY GUILDS and
DAVID L. ZINK
8

10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF BUTTE
12
CALIFORNIA STATE GRANGE, a Case No. 23CV02728
13 California nonprofit corporation,
Judge: Hon. Steven E. Benson
14 Plaintiff,
[PROPOSED] ORDER GRANTING
15 v. DEFENDANTS’ MOTION TO RECUSE
PURSUANT TO C.C.P. § 170.6
16
PARADISE COMMUNITY GUILDS, an entity Hearing Date: January 17, 2024
17 of unknown form; DAVID L. ZINK, an Time: 4:00 pm
individual; and DOES 1 through 20, inclusive, Dept.: TBD
18

19 Defendants. Complaint Filed: September 28, 2023
20

23 Defendants Paradise Community Guilds and David L. Zink’s Motion to Recuse the

24 Honorable Tamara L. Mosbarger Pursuant to Cal. Code. Civ. P. § 170.1, subd. (a)(6), is
25
GRANTED.
26

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
8
1 THEREFORE, IT IS HEREBY ORDERED that the Honorable Tamara L. Mosbarger is

2 relieved from her assignment as judge in the above-entitled matter, and now set for hearing on
3
___________, 2024, and from any and all other assignments in this cause. The pending hearing
4
for Defendants’ Motion to Extend Time for Responsive Pleading shall proceed before the
5
Honorable ________________, in Department ____________ of this court, at the time now set
6
for hearing.
7

19
20

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
9
1 PROOF OF SERVICE
2 California State Grange v. Paradise Community Guilds, et al.
Case No. 23CV02728
3
At the time of service I was over 18 years of age. I am employed by WILSON ELSER
4 MOSKOWITZ EDELMAN & DICKER LLP. My business address is 655 Montgomery Street,
Suite 900, San Francisco, California 94111. My business telephone number is (415) 433-0990; my
5 business fax number is (415) 434-1370. On this date I served the following document(s):
6
NOTICE OF MOTION AND MOTION TO RECUSE JUDGE MOSBARGER
7 PURSUANT TO C.C.P. § 170.1; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF KRISTA M. STOUMBOS; DECLARATION
8 OF DAVID L. ZINK; REQUEST FOR JUDICIAL NOTICE; PROPOSED ORDER

9 on the person or persons listed below, through their respective attorneys of record in this action,
addressed as shown below by the following means of service:
10 BY ELECTRONIC TRANSMISSION (E-MAIL) – By causing the document(s) to be
11 delivered electronically to the addressee(s) identified below with an e-mail address
pursuant to Cal. Code Civ. Proc. § 1013(g).
12

13
Martin N. Jensen, Esq.
14 PORTER SCOTT
2180 Harvard Street, Suite 500
15 Sacramento, California 95815
T: 916-929-1481
16 F: 916-927-3706
E: mjensen@porterscott.com;
dganzon@porterscott.com ; cbowers@porterscott.com
17
Attorneys for Plaintiff
18

19
I declare under penalty of perjury under the laws of the State of California that the above
20 is true and correct.
Executed on January 18, 2024, at San Francisco, California.
21

23
Krista M. Stoumbos
24

28
DEFENDANTS’ MOTION TO RECUSE JUDGE MOSBARGER
PURSUANT TO C.C.P. § 170.1
10

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