Writ Filed with Appellate Court to Dismiss Judge in Benoit Case

Earlier this week, visiting Judge Arvid Johnson dismissed an oral motion to recuse him from presiding over Benoit v. Gilson as untimely.  In June, Judge Kathleen White had issued orders setting a trial readiness conference for August 29 with a trial set for October 11.

Because Ms. Benoit is in Europe with her children, Judge White reluctantly allowed Ms. Benoit to be deposed by Skype, as long as her deposition proceeded Mr. Gilson’s.

On Friday, July 15, at 3:30 pm, Attorney Kim Robinson, representing Ms. Benoit, “received by fax an ex parte motion from Real Party seeking to modify the timing of depositions in the case.”  The hearing was set for July 19 at 9 am.  Ms. Robinson writes, “After receiving the ex parte motion, Petitioner’s counsel notified the sender that she had another hearing in Alameda County the morning of July 19, 2016, and therefore was not available for a hearing in Yolo County that same day.”

Ms. Robinson continues, “On or about July 25, 2016, Petitioner’s counsel received a Minute Order from the Yolo County Superior Court regarding the hearing held on July 19, 2016. The Minute Order indicated that the matter had been heard by Judge W. Arvid Johnson, who does not appear on the Yolo County Judicial Assignments list of judges.”

At this point, Judge Johnson, without the presence of Ms. Benoit or her counsel, began changing Judge White’s orders which allowed that Benoit could be deposed by Skype.

Judge Johnson also set the matter for further hearing on August 2.

Ms. Robinson, during that hearing, indicated that they were filing an oral Penal Code section 170.6 motion to disqualify Judge Johnson.  The judge stated that the motion needed to be in writing.

Ms. Robinson responded, “Your Honor, the peremptory challenge does not need to be in writing. It can be made orally. We didn’t know to whom the case was being assigned before we walked we walked in this morning.”

He responded, “Yes you did.  It was before me last time.”

She countered, “I was not here.”

The judge responded, “You were here by phone.”

Ms. Robinson responded, “I did not appear by phone in this department before you. I’ve never appeared in front of you before. And, in fact, the last notice we got of any hearing from — was for July 19th, and it was actually noticed for Department 3, Judge White, so I had no idea of your involvement in the case until we got an order in the mail a couple of days ago.”

Judge Johnson responded, “It was on last week — or a couple of weeks ago, and I was here handling it and you had notice of it, so it was here.”  Judge Johnson ultimately ruled the petition was not timely since he had ruled on the Skype matter in the prior session.

Ms. Robinson argues that, under 170.6, “A judge shall not hear any matter involving a contested issue of law or fact where it is established that the judge is prejudiced against a party or attorney, or the interests of a party or attorney appearing in the action or proceeding.”

Section 170.6 “permits a party to an action to disqualify summarily an assigned judge based on a sworn statement of the party of the party’s belief that the judge is prejudiced against that party’s attorneys.”

Furthermore, “Provided the statement is timely and in proper form, the judge has no discretion to refuse the challenge.”  The right to disqualify a judge under section 170.6 “is automatic in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.”

Ms. Robinson points out, “Section 170.6 subd. (2) prescribes a 10-day period within which to make a peremptory challenge to the assignment of a judge for all purposes. The period is commenced by ‘notice’ of the assignment.”  She cites case law that says if the notice of assignment is served by mail, the 10-day peremptory challenge period is extended to a 15^th day.

She argues, “In the present case, the July 20, 2016, minute order notifying the parties that the matter was being heard in Department 4 by Judge Johnson was served by mail to an address in California for Petitioner’s counsel.”  She added, “The date of August 2, 2016 is within 15 days of the service by mail of the notice on July 20, 2016, and therefore the challenge under section 170.6 was timely, and it was error for Judge Johnson to conclude otherwise.”

Moreover, under 170.6, it “also expressly authorizes the making of a peremptory challenge orally. It was also error for the court to conclude that the motion was defective because it was not made in writing.”

As we have noted, Deputy DA Tiffany Susz has wanted Claire Benoit ordered to court and to potentially charge her for parental abduction in this case.

On Tuesday, for the first time, we had the appearance of CPS, Yolo County Counsel, and potential counsel for the minor children.

As Judge Johnson put it, “I would like to ask county counsel and the CPS to inquire and investigate whether or not CPS should be involved and whether or not a protective warrant should issue for the return of the children.”

He added, “She is clearly in contempt of court. She’s refused to make herself available. She has been ordered back. She is basically hiding in different places in Europe. And my question is whether or not that is grounds in and of itself for a protective warrant for picking up the children and returning the children. I believe that it is, but I don’t know, so I would like CPS and county counsel to look into that.”

Mr. Gilson has sought some form of custody or visitation with the children in this case.  However, in 2013, Mr. Gilson was convicted of felony stalking, felony spousal abuse and misdemeanor false imprisonment.  He has a ten-year restraining order preventing him contact with his previous wife, Veronica.

—David M. Greenwald reporting

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