Same Abuse of Discretion Standard or Something Else?
An inquisitive reader of our blawg sent us a good
question that we shall attempt to answer: What standard governs a replacement
judge hearing a fee motion when the original judge is unavailable (due to
reassignment, retirement, or death)? Stay tuned, we provide the answer
below.
The answer is somewhat predictable and follows common sense. The
substitute judge in posttrial proceedings exercises the same discretion as the
original judge in ruling on the particular motion at issue. See, e.g.,
Churchill v. Flournoy, 127 Cal. 355, 362 (1899); Kershner v. Morgali, 152
Cal.App.2d 884, 885 (1957). For those of you wanting to see that this rule is
followed in a fee motion context, see Horsford v. Bd. of Trustees of Cal. State
Univ., Case No. F051782 (5th Dist., Sept. 4, 2008) (Horsford II) (unpublished)
at footnote 1, reviewed in our September
6, 2008 post. Based on these authorities, we would assume that the abuse
of discretion standard is applicable on appeal, which Horsford II suggests is
the case.
However, we do offer a quick caveat. The abuse of discretion standard
applies because the experienced trial judge is presumed to know what occurred.
With a replacement judge, it is important for the fee claimant to explain the
services rendered and the litigation in more specificity than usually required
before the judge actually presiding over the case. Cf.Long Beach City
Employees Assn. v. City of Long Beach, 120 Cal.App.3d 950, 961 (1981). In
this way, the new judge’s discretionary calls can be defended more easily on
appeal, although the same technical appellate standards should apply.