***ipsen writ cover sheet - full disclosure...

DOCKET NO. ____________________________________________ IN THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

____________________________________________________ STEVEN J. IPSEN, Petitioner, v. THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent, COUNTY OF LOS ANGELES, STEVE COOLEY, Real Parties in Interest, ________________________________________________________ EMERGENCY PETITION FOR WRIT OF MANDAMUS _______________________________________________________ District Court Case No.: 2:09-cv-07931-JCG ________________________________________________________ STEVEN J. IPSEN Attorney at Law 1100 S. Hope Street, Suite 103 Los Angeles, California 90015 TELEPHONE: (213) 700-4133 Petitioner

Case 2:09-cv-07931-JCG Document 417-2 Filed 02/19/13 of 33 Page ID #:8159

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TABLE OF CONTENTS Page INTRODUCTION ………………………………................. 1 RELIEF SOUGHT BY PETITIONER ……………………. 8 ISSUES PRESENTED BY THE PETITION ……………… 10 ARGUMENT ………………………………........................ 12

I. MAGISTRATE JUDGE GANDHI HAD A DUTY OF DISCLOSURE AND SHOULD HAVE NEVER ACTED IN ANY ADJUDICATORY MANNER IN THE CASE OTHER THAN TO DISQUALIFY HIMSELF………………………………………….. 12 A. APPLICABLE STATUTORY AND CASE

LAW ON DISQUALIFICATION IN THE FEDERAL DISTRIC COURT……………… 12

B. THE FAILURE OF MAGISTRATE JUDGE GANDHI TO DISCLOSE HIS FINANCIAL CONFLICTS OF INTEREST AND FACTS REFLECTING AN ACTUAL BIAS OR THE APPEARANCE OF SAME………………….. 17

II. THE DISQUALIFICATION MOTION SHOULD HAVE

BEEN GRANTED, AND THE LITIGATION THEREAFTER ASSIGNED TO A NEW AND IMPARTIAL DISTRICT COURT JUDGE ………… 24

CONCLUSION ……………………………….............................. 26


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EXHIBITS EXHIBIT 1- “California Lawyer Magazine” article on this case,

Dkt. No. 376, Pages 12-13. EXHIBIT 2- First Amended Complaint in this case, Dkt. No. 61, Parts 1 & 2. EXHIBIT 3- Order Granting ADDA’s Motion to Certify the Class

Action as to Liability, Dkt. No. 134. EXHIBIT 4- “Received” Disqualification Motion EXHIBIT 5- Order Denying Motion to Disqualify Magistrate Judge

Gandhi, Dkt. No. 377. EXHIBIT 6- Request to Withdraw as Counsel of Record, Dkt. No. 384. EXHIBIT 7- Stipulation of witness Marc Debbaudt, Dkt. No. 352. EXHIBIT 8- Amended Stipulation of witness Marc Debbaudt, Dkt. No. 353.


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TABLE OF AUTHORITIES CASES Page(s) Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009) …… 13,14,16,24 Farcasse v. Brent (1972) 6 Cal.3d 7841 ………………………. 23 Gibson v. Berryhill, 411 U.S. 564 (1973) ……………………. 24 In re Basciano, 542 F.3d 950 (2d Cir. 2008) …………………. 17 In re: Estate of Wells, 983 P.2d 279 (Kan.App. 1999) ………… 25 In re Johnson, 971 F.2d 585 (5th Cir. 1991) …………………… 13 In re Va. Elec. & Power Co., 129 S.Ct. 2252 (2009) …………. 14 Klug v. U.S., 1620 F.Supp. 892 (D.S.C. 1985)………………… 25 Lewin v. Cooke, 28 F. App’x 186, (4th Cir. 2002) …………….. 17 Liljeberg v. Heath Services Acquisition Corp., 486 U.S. 847 (1988) …………………………………………… 13,15 Liteky v. U.S., 510 U.S. 540 (1994) ………………………….. 14 Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) ……………….. 15 Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995) ……………….. 16 Pesnell v. Arsenault, 543 F.3d 1038 (9th Cir. 2008) ………….. 13 Sac & Fox Nation v. Cuomo, 193 F.3d 1162 (10th Cir. 1999) … 16 Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966) ……………. 15 Tumey v. Ohio, 273 U.S. 510 (1927)…………………………. 24 United States v. Ballistrieri, 779 F.2d 1191 (7th Cir. 1985) …… 16


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United States v. Hernandez, 109 F.3d 1450 (9th Cir. 1997) …… 13 RULES Federal Rules of Civ. Proc., Rule 60(b)(4) …………………… 25 STATUTES 28 U.S.C. 144 ………………………………............................ 10,12,13,21 28 U.S.C. 455 ………………………………........................... 10,12,13,15 5TH and 14th Amendments ……………………………….......... 24


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INTRODUCTION Petitioner Steven J. Ipsen was the long time head and founder of the

Association of Deputy District Attorneys (“ADDA”) and ran against District

Attorney Steven Cooley for District Attorney. Petitioner Ipsen and ADDA

obtained a preliminary injunction and certification of an anti-union discrimination

and retaliation class action complaint against the County of Los Angeles and

District Attorney Steven Cooley in this case. Thereafter, the County of Los

Angeles and District Attorney Cooley paid substantial settlements to certain of the

class representatives. Two (2) of the ADDA former Presidents remained Plaintiffs

in this case, including Petitioner Ipsen. Mr. Ipsen has almost twenty-five (25)

years experience in complex jury trials. The case was re-assigned from U.S.

District Court Judge Otis Wright, who granted the preliminary injunction and class

action certification, to Magistrate Judge Jay C. Gandhi. See Exhibit 1, “California

Lawyer Magazine” article summarizing the case contained in the Motion to

Disqualify Judge Gandhi, Dkt. No. 376, filed December 17, 2012, Pages 12-13.

See Exhibit 2, First Amended Complaint, Dkt. No. 61 Parts 1 & 2, filed May 12,

2010. See Exhibit 3, Order Granting ADDA’s Motion to Certify the Class Action

as to Liability, Dkt. No. 134, filed January 24, 2011.

Petitioner Ipsen was unaware of the significant and undisclosed adverse


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financial conflicts of interest of Magistrate Judge Jay Gandhi and Judge Gandhi

failed to disclose same on the record. See Exhibit 1, Motion to Disqualify Judge

Gandhi, Dkt. No. 376, Pages 2-6, and particularly paragraphs 1-7, 9, and 15 with

respect Magistrate Judge Gandhi’s actual adverse financial conflicts of interest and

appearance of bias therefrom. Further documentation is on Pages 15-22, which

discloses that Magistrate Judge Gandhi’s prior law firm, prior to his nomination as

a Magistrate Judge, had as its representative client the District Attorney’s Office of

Los Angeles County, District Attorney Cooley, and the County of Los Angeles,

including discriminatory and retaliatory litigation against Deputy District

Attorneys similar to Petitioner Ipsen. Also, that Magistrate Judge Gandhi’s prior

firm’s litigation attorneys were hired to conduct first chair felony criminal trials

without payment by the County of Los Angeles and the District Attorney’s Office.

Petitioner Ipsen did not learn of these significant adverse financial conflicts of

interest and the appearance thereof until the day before the filing of the Motion for

Disqualification of Judge Gandhi on December 17, 2012, when the information

was presented by an investigative journalist investigating the similar retribution

and discrimination against Deputy District Attorney Alan Jackson, who was

retaliated against by the District Attorney on December 14, 2012 and widely

reported in the media. Mr. Jackson, a veteran prosecutor and a specialist in


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complex jury trials, similarly ran against the District Attorney for the election held

on November 6, 2012 and was basically demoted to a desk job whereby he would

no longer try cases. See Exhibit 1, Motion to Disqualify Judge Gandhi, Dkt. No.

376, Pages 23-24.

As President of the newly unionized Association of Deputy District

Attorneys, Petitioner Ipsen had secured a series of historic and favorable rulings

and settlements from District Judge Otis Wright as a result of the First Amended

Class Action Civil Rights complaint, including obtaining a preliminary injunction

and class action certification.

When Magistrate Judge Gandhi was assigned the case for trial, he did not

disclose facts which demonstrate actual and significant financial conflicts of

interest, actual bias, or the appearance of bias.

Mr. Ipsen discovered a portion of the substantial adverse financial conflicts

of interest and actual bias and the appearance of bias of Magistrate Judge Gandhi

and moved to disqualify him along with substituting out his counsel. See Exhibit 4,

“Received” Disqualification Motion and Proposed Order thereto. Magistrate Judge

Gandhi refused to allow Petitioner Ipsen to file the motion to disqualify Judge

Gandhi and to substitute into the case, as Petitioner Ipsen discovered an actual

conflict of interest by Joseph Avrahamy and moved for closed hearings on


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December 13 and 17, 2012 in connection therewith. Magistrate Judge Gandhi did

not disclose to Petitioner Ipsen that the disqualification motion has been assigned

to Judge Dolly Gee, circumventing the requirement that the disqualification motion

be randomly assigned to a disinterested jurist. Petitioner Ipsen subsequently

learned from the docket sheet that Judge Dolly Gee also refused to allow the

substitution of Petitioner Ipsen and his Motion to Disqualify Judge Gandhi. See

Exhibit No. 7, the Rejection of the Filings by Petitioner Ipsen, Dkt. Nos. 374 &

375, filed December 17, 2012. One of his counsel, Donna Pettway, was requested

by Petitioner Ipsen and did file the Motion to Disqualify Judge Gandhi on

December 17, 2012. See Exhibit 1, Dkt. No. 376, filed December 17, 2012. On

December 17, 2012, a short time after the disqualification motion was filed by

Donna Pettway, Esq., District Judge Dolly Gee was assigned to rule on the

disqualification motion without it being randomly assigned to a disinterested

District Judge. District Judge Dolly Gee denied the disqualification and omitted

from her ruling the substantial adverse financial interests of Magistrate Judge

Gandhi and his immediate prior law firm with respect to PAUL HASTINGS

partner DONNA MELBY’S representation of Los Angeles County and District

Attorney Steven Cooley in similar cases involving retribution and discrimination

against Deputy District Attorneys who ran against Mr. Cooley for District Attorney,


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as did Petitioner Ipsen. See Exhibit 5, Order Denying Motion to Disqualify

Magistrate Judge Gandhi, Dkt. No. 377, filed December 17, 2012. District Judge

Dolly Gee also had knowledge of disputed evidentiary facts contained in the

Motion to Disqualify Judge Gandhi and should have recused herself from presiding

over the Motion to Disqualify Judge Gandhi.

Subsequently, Petitioner Ipsen’s lead counsel, Joseph Avrahamy moved ex

parte to substitute out of the case. See Exhibit 6, Request to Withdraw as Counsel

of Record, Dkt. No. 384, filed December 20, 2012. Mr. Ipsen had also moved ex

parte to be substituted into the case, as he has almost twenty-five (25) years of

experience in complex jury trials. See Exhibit 6, Request to Withdraw as Counsel

of Record, Dkt. No. 384, filed December 20, 2012. Magistrate Judge Gandhi did

not timely allow the Substitution of Attorneys substituting in Petitioner Ipsen as

new counsel in place of Joseph Avrahamy and Donna Pettway until January 11,

2013, to prevent Petitioner Ipsen from filing further pleadings, including this Writ

of Mandamus, until this date.

On December 13 and 17, 2012, Petitioner Ipsen requested closed hearings in

connection with his request to substitute in as counsel based upon actual conflicts

of interest of Joseph Avrahamy, Esq., Avrahamy’s violations of the State Bar of

California Rules of Professional Conduct, and the forgery or fabrication of Joseph


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Avrahamy’s consent to a stipulation of the testimony of Petitioner Ipsen’s major

witness in lieu of live testimony. Joseph Avrahamy informed the court in the

closed session that he neither consented to the stipulation nor signed the

stipulation. Magistrate Judge Gandhi threatened Petitioner Ipsen if he did not

personally consent to the testimony of his principal witness by stipulation, which

had not been prepared by Joseph Avrahamy and was not the testimony being

offered on behalf of Petitioner Ipsen.

Subsequently, on January 15, 2013, Petitioner Ipsen learned from an

investigative journalist that Joseph Avrahamy, Esq. had additional actual conflicts

of interest adverse to Petitioner Ipsen, including that Avrahamy represented similar

persons who likewise were discriminated against and retaliated against by the

County of Los Angeles after running for elective office against the incumbent,

Sheriff Baca, an acquaintance of District Attorney Cooley. That case was also

assigned to Magistrate Judge Gandhi, who settled that case for large sums of

money in favor of the plaintiff on December 14, 2012. That is the same date that

Alan Jackson was demoted, discriminated against, and retaliated against by the

District Attorney. Petitioner Ipsen sought to have Alan Jackson and his campaign

consultant, John Thomas, testify on behalf of the Petitioner Ipsen, as they had

direct knowledge of District Attorney Cooley’s and Jackie Lacey’s discriminatory


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and retaliatory misconduct and civil rights violations against Petitioner Ipsen.

Magistrate Judge Gandhi refused to allow any of these persons to testify, including

Marc Debbaudt, a Deputy District Attorney and former Plaintiff in this case who

received a settlement of more than $450,000 in this case when the case was

assigned to District Judge Otis Wright. Magistrate Judge Gandhi and Joseph

Avrahamy, Esq. never disclosed to Petitioner Ipsen that the plaintiff in the similar

case pertaining to the County of Los Angeles and retaliation and discrimination by

Sheriff Baca and his high command had also sought the removal of Joseph

Avrahamy, Esq. for similar actual conflicts of interest to the facts in this case.

Petitioner Ipsen knew that Mr. Avrahamy’s conduct disclosed in the closed

hearings before Magistrate Judge Gandhi mandated Avrahamy’s disqualification

on December 13 and 17, 2012. Magistrate Judge Gandhi also had an affirmative

duty to disclose to Petitioner Ipsen at that closed hearing that Joseph Avrahamy,

Esq. had equally been the subject matter of similar substitution motions by the

plaintiff in the similar case in which Magistrate Judge Gandhi was presiding over

concurrently with the Ipsen case, without disclosure to Petitioner Ipsen by

Magistrate Judge Gandhi or Mr. Avrahamy. Magistrate Judge Gandhi refused to

release the closed hearing testimony to Petitioner Ipsen so that Petitioner Ipsen

could include it with this emergency Writ of Mandamus. Magistrate Judge Gandhi


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also sealed the significant settlement on behalf of the plaintiff in the similar case

involving the County of Los Angeles, which Magistrate Judge Gandhi sealed on

December 13, 2012, immediately before the closed hearing against Joseph

Avrahamy, Esq. in this case and the motion to disqualify Magistrate Judge Gandhi.

Petitioner Ipsen will move this court to augment the record to obtain copies of the

closed hearing testimony in this case, which has been transcribed by the court

reporter but Magistrate Judge Gandhi has refused to release the transcript to

Petitioner Ipsen so that it can be filed under seal before this court. Petitioner Ipsen

also seeks in said emergency motion for a stay of proceedings that the sealed

documents in the similar case be unsealed and provided to Petitioner Ipsen for

transmittal to this court, including the terms of the settlement with the County of

Los Angeles, which Petitioner Ipsen understands to be very substantial against the

County of Los Angeles.

RELIEF SOUGHT BY PETITIONER Petitioner respectfully requests the issuance of a Writ of Mandamus under 28 U.S.C. Section 1651 and other applicable law ordering: (1) The Honorable Jay C. Gandhi, Magistrate Judge to disqualify himself or ordering him disqualified from further proceedings in Case Nos. CV 09-7931-JCG,


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One Unnamed Deputy District Attorney, et al., Plaintiffs, v. County of Los Angeles, et al., Defendants. (2) The reversal and vacation of the December 17, 2012 Order by U.S. District Judge Dolly M. Gee of the Central District of California in Case No. CV 09-7931-JCG, denying Petitioner’s Motion to Disqualify Magistrate Judge Jay C. Gandhi. (3) The assignment of this case to a new and impartial District Court Judge of the Central District of California after this Court orders U.S. Magistrate Judge

Gandhi disqualified.

(4) That any and all rulings and orders of Magistrate Judge Gandhi be

vacated, set aside and declared void ab initio due to the disqualification of said

jurist.

(5) That Petitioner, a twenty-four (24) year jury trial specialist attorney be

allowed to represent himself in this appeal and in the trial court.

(6) That the District Court case be stayed forthwith with regard to pending

and future proceedings and hearings until further order of this Court, except for the

transmittal to this Court of the closed hearing transcript of December 17, 2012 of

the proceedings against Joseph Avrahamy, Esq. to remove him as counsel in this

case and the transfer to this Court and to Petitioner Ipsen of an unsealed settlement


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agreement in the similar case presided over by Magistrate Judge Gandhi against

the County of Los Angeles, in which Joseph Avrahamy, Esq. was counsel, that was

settled on December 13 & 14, 2012, Case No. 2:04-cv-09674-JCG, Patrick L.

Gomez v. Los Angeles County assigned to Magistrate Judge Gandhi.

ISSUES PRESENTED BY THE PETITION 1. Did Magistrate Judge Jay C. Gandhi err by failing and refusing to recuse himself from the proceedings in the District Court, pursuant to 28 U.S.C. Sections 144 and 455(a), (b)(1), (b)(2) and (b)(4) and (c), in

light of his actual, substantial, adverse financial conflicts of interest and his actual

bias or appearance of same?

2. Did Magistrate Judge Jay C. Gandhi err by not disclosing his

significant adverse conflicts of interest and his actual bias, or the appearance of

same, towards Petitioner Ipsen, including disclosure of the similar case of Gomez v.

County of Los Angeles, pertaining to the similar conflicts of interest of Petitoner

Ipsen’s lead counsel, Joseph Avrahamy, Esq.?

3. Once the motion for the disqualification of Magistrate Judge Gandhi was filed by Petitioner Ipsen and one of his counsel, Donna Pettway, did said jurist act unlawfully, without jurisdiction and show his actual bias, or the


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appearance of same, by continuing to hold proceedings in the case and not allowing Petitioner Ipsen to represent himself at trial? 4. Did Magistrate Judge Gandhi violate Petitioner Ipsen’s fundamental

due process rights and his solemn duty to be fair and impartial by Magistrate Judge

Gandhi’s illegal conduct towards Petitioner Ipsen, such as unconscionably

threatening Petitioner Ipsen, not allowing Petitioner Ipsen to represent himself

despite substitutions of attorney filed with the Court by his attorneys, and not

divulging his past association and that of his prior law firm with Defendants and

their counsel?

5. Did U.S. District Judge Dolly M. Gee err by failing to disqualify Magistrate Judge Gandhi and sufficiently address on the merits the substantial

adverse financial conflicts of interest of Magistrate Judge Gandhi?

6. Did Magistrate Judge Gandhi violate Petitioner Ipsen’s fundamental

due process rights, and act with actual bias, or the appearance thereof, in not

allowing Petitioner Ipsen to represent himself when he raised legitimate ethical

concerns and conflicts of interest about his lead counsel, Joseph Y. Avrahamy?

7. Given that Magistrate Judge Gandhi should be ordered disqualified, are his rulings and orders void ab initio, resulting in a mistrial?


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ARGUMENT I. MAGISTRATE JUDGE GANDHI HAD A DUTY OF DISCLOSURE

AND SHOULD HAVE NEVER ACTED IN ANY ADJUDICATORY MANNER IN THE CASE OTHER THAN TO DISQUALIFY HIMSELF

A. APPLICABLE STATUTORY AND CASE LAW ON DISQUALIFICATION IN THE FEDERAL DISTRICT COURT Disqualification of a justice, judge or magistrate judge in the Federal District

Court is statutorily set forth in 28 U.S.C. Section 455 and Section 144. Magistrate

Judge Gandhi had and has an ongoing obligation as a federal judicial officer to

follow these statutes, including Section 455(c) pertaining to disclosure of his

personal and adverse financial interests.

Section 455(a) thereof recites: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b) states that there are a number of circumstances where a jurist should disqualify himself or herself, including (1) “Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Of note, Section 455(c) recites in part: “A judge should inform himself about his personal and financial interests…” [Emphasis added] The reach of 28 U.S.C. 455 defines “proceeding” in 455(d)(1) as including


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pretrial, trial, appellate review, or other stages of litigation. Section 455 requires disqualification if a reasonable person might believe that the judge was aware of circumstances creating an appearance of partiality, even if the judge was in fact unaware. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). Disqualification has been deemed necessary when trial judges took unusual

actions or made comments that indicated they took personal offense. See In re

Johnson, 921 F.2d 585 (5th Cir. 1991).

Disqualification is in order where there is a showing of actual bias or the appearance of bias. It can be triggered by the filing of an affidavit or declaration of prejudice as was submitted by Petitioner. 28 U.S.C. Section 144. Both the U.S. Supreme Court and Ninth Circuit have concluded that the objective and substantive standard for disqualification under 28 U.S.C. Section 455(a) and

Section 144 is whether a reasonable person with knowledge of all the facts would

conclude that the judge’s impartiality might reasonably be questioned. Pesnell v.

Arsenault, 543 F.3d 1038 (9th Cir. 2008); United States v. Hernandez, 109 F.3d

1450 (9th Cir. 1997); Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009).

Aggrieved parties often challenge a judge’s refusal to disqualify. Courts of Appeals permit a party to seek review via a Writ of Mandamus when


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disqualification is at issue. E.g., In re Va. Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976).

Chief Judge Kozinski aptly pointed out that it is the duty of an attorney or

party to bring a motion for disqualification when facts or circumstances exist to do

so. “Parties and their counsel are entitled to question the impartiality of Judges

before whom they appear, See e.g. 28 U.S.C. Section 144 and judges have a

professional responsibility not to take such challenges personally…” In re

Bernard, 31 F.3rd 842 (9th Cir. 1944).

The U.S. Supreme Court has recognized in Caperton v. A.T. Massey & Co.,

129 S. Ct. (2009) that disqualification is warranted where the appearance of a bias

or conflict of interest exists even if the judge subjectively believes he has no actual

bias.

The Ninth Circuit has repeatedly invoked these objective standards in

defining the basis for recusal.

As acknowledged in Grodin v. Random House, Inc., 61 F3d 1045, 1053,

assigning appropriate language in Liteky: “Deep seeded antagonism makes fair

judgment impossible.”

Nor does it matter that the court fails to recall the specifics of the events in

question; “the gist of section 455(a) is to avoid even the appearance of partiality. If


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it would appear to a reasonable person that a judge has knowledge of facts that

would give him an interest in the litigation, then an appearance of partiality is

created, even though no actual partiality exists because the judge does not recall he

facts, because the judge actually has no interest in the case, or because the judge is

pure in heart and incorruptible. The judge’s forgetfulness, however, is not the sort

of an objectivity ascertainable fact that can avoid the appearance of partiality.”

Lilyeberg v. Health Services Acquisition Corp., 486 U.S. 847, 871, (1988).

As an initial matter, a Writ of Mandamus or Mandate is an appropriate means to compel recusal. One federal appellate court has cogently recognized that “we can think of few situations more appropriate for mandamus than a judge’s clearly wrongful refusal to disqualify himself.” Rosen v. Sugarman, 357 F.2d 794, 797 (2d Cir. 1966). Under 28 U.S.C. Section 455(a), a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Emphasis added). The purpose of this provision “is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg, supra, 486 U.S. 847, 865. Thus, whether “a judge actually has a bias, or actually knows of grounds requiring recusal is irrelevant--section 455(a) sets an objective standard that does not require scienter.” Moran v. Clarke, 296 F.3d 638, 648 (8th


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Cir. 2002). “[I]f the question of whether Section 455(a) requires disqualification is a close one, the balance tips in favor of recusal.” Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995) (emphasis added). But this is not a close case; there can be no doubt that Magistrate Judge Gandhi’s impartially will be reasonably questioned by the average person who knows the relevant facts.

This Court should adopt a de novo standard of review in the case at bar for

reviewing the Magistrate Judge’s disqualification. See United States v. Ballistrieri,

779 F.2d 1191, 1203 (7th Cir. 1985). See also Sac & Fox Nation v. Cuomo, 193

F.3d 1162, 1168 (10th Cir. 1999) (applying de novo standard where district judge

“did not create a record or document her decision not to recuse”).

In Caperton, supra, the United States Supreme Court found that financial conflicts of interest and significant campaign contributions affecting a judge’s impartiality gave rise to due process violations and either an actual bias or

appearance of bias mandating recusal.

Even under an abuse of discretion standard, a judge will be considered to have abused his discretion when the ruling denying disqualification is not well- reasoned, the judge did not fully consider the merits of the disqualification motion, and whether the judge’s rulings and conduct called the judge’s impartiality into


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question. See In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008); Lewin v. Cooke, 28 F. App’x 186, 197 (4th Cir. 2002).

B. THE FAILURE OF MAGISTRATE JUDGE GANDHI TO DISCLOSE HIS FINANCIAL CONFLICTS OF INTEREST AND FACTS REFLECTING AN ACTUAL BIAS OR THE APPEARANCE OF SAME .

When Magistrate Judge Gandhi was assigned to this case, replacing U.S.

District Judge Otis Wright, said Magistrate Judge had an affirmative duty and

obligation to disclose numerous facts reflecting an actual financial conflict of

interest, not hear the case due to the facts and substantial adverse conflicts of

interest enunciated in Petitioner’s disqualification motion. Magistrate Judge

Gandhi should have recused himself on his own motion. Magistrate Judge Gandhi

did not disclose any of the relevant facts set forth in the motion for disqualification

or the newly discovered facts after the motion was ruled upon, that Magistrate

Judge Gandhi presided over a similar case involving the County of Los Angeles as

a major defendant in which Joseph Avrahamy, Esq. was removed by plaintiff

Patrick Gomez for alleged conflicts of interest similar to the conflicts of interest

disclosed in the closed hearing by Petitioner Ipsen to Magistrate Judge Gandhi.

Said jurist refused to permit Petitioner Ipsen, a highly qualified litigator with over

twenty-four (24) years experience in complex jury trials, to replace Joseph


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Avrahamy, Esq., who was engaged in actual conflicts of interest and violations of

the State Bar of California Rules of Professional Conduct, as more fully stated in

the closed hearing before Magistrate Judge Gandhi on December 17, 2012.

Magistrate Judge Gandhi knew of Joseph Avrahamy’s actual conflicts of interest

from the similar Gomez v. County of Los Angeles case, which Magistrate Judge

Gandhi was presiding over at the same time, without disclosure to Petitioner Ipsen.

Magistrate Judge Gandhi also had actual knowledge that Joseph Avrahamy’s actual

conflicts of interest adverse to Petitioner Ipsen eminated from Avrahamy’s

violation of court orders in this case, mandating that there was an actual conflict of

interest between Plaintiff Hyatt Seligman and Petitioner Ipsen. That court order is

the law of the case, allowing attorney Gregory Smith to withdraw based on that

actual conflict of interest. Magistrate Judge Gandhi was compelled to disqualify

Joseph Avrahamy, Esq. for attempting to represent the interests of Joseph

Avrahamy and Hyatt Seligman adverse to his own client Petitioner Ipsen. As a

result, Magistrate Judge Gandhi must be disqualified by this Court as Mr.

Avrahamy’s conduct was in contempt of a court order. Instead, Magistrate Judge

Gandhi used coercive tactics to require Petitioner Ipsen to stipulate to the forged or

fabricated stipulation of the testimony Marc Debbaudt, the principal witness on

behalf of Petitioner Ipsen at trial. Mr. Debbaudt had settled his case for more than


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$450,000 and had personal knowledge of the retaliatory and discriminatory

conduct of the County of Los Angeles, District Attorney Cooley, and his high

command. The forged or fabricated stipulation was apparently prepared by

defense counsel. See Exhibit 7, Stipulation, Dkt. No. 352 and Exhibit 8, the

Amended Stipulation, Dkt. No. 353, of principal witness Marc Debbaudt.

The substantial settlement on behalf of Patrick L. Gomez, in the similar case

of Gomez v. The County of Los Angeles, was apparently sealed to attempt to

prevent Petitioner Ipsen from learning the substantial size of the settlement based

on similar facts against the County of Los Angeles. Further, Patrick L. Gomez and

others should have been interviewed and called as material witnesses in this case.

The Magistrate Judge did not disclose that he, as a former, recent long-time

litigation partner on the management committee of PAUL, HASTINGS,

JANOSKY & WALKER had a preexisting relationship with Defendants COUNTY

OF LOS ANGELES and STEVE COOLEY, as well as the County of Orange and

its District Attorney. Magistrate Judge Gandhi did not reveal that two of his

former firm’s biggest litigation clients were, and apparently continue to be,

Defendant COUNTY OF LOS ANGELES and the Los Angeles County District

Attorney’s Office, through Defendant COOLEY and his successor-in-interest,

Defendant JACKIE LACEY. Magistrate Judge Gandhi did not reveal that he has


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benefited financially and continues to benefit from his association with the

aforesaid former clients and that his prior law firm was and is active in doing legal

work for the District Attorney’s Office and the County of Los Angeles.

Litigation attorneys of PAUL, HASTINGS, JANOSKY & WALKER act as

Deputy District Attorneys as first chair felony jury trial prosecutors and are paid by

the law firm and not the County of Los Angeles. Magistrate Judge Gandhi

participated in the same program in Orange County at a time when there were

numerous cases of retaliation and discrimination against Deputy District Attorneys

who were members of a union adverse to the District Attorney.

Of note, Magistrate Judge Gandhi has never revealed his financial interests with his prior law firm. Said jurist still apparently receives money from PAUL, HASTINGS, JANOSKY & WALKER due to the County of Los Angeles and District Attorney’s Office still being major, ongoing clients of the law firm. Magistrate Judge Gandhi, after all, was a major litigation partner of the law firm

and sat on the Litigation Committee as an equity partner, including cases involving

similar facts of retaliation and discrimination by the County of Los Angeles and/or

the District Attorney’s Office.

Between June 26, 2012, and December 17, 2012, Magistrate Judge Gandhi improperly made no mention whatsoever of the fact that there were grounds to


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disqualify him and that he should recuse himself. The morning of December 17, 2012, before the Clerk’s Office was open, Mr.

Ipsen requested on the record that the Court allow him to represent himself and

that his counsel, Joseph Y. Avrahamy, be substituted out of the case for actual

conflicts of interest and violation of court orders. Mr. Avrahamy had agreed to the

substitution of attorney and signed those forms and filed them with the court.

Improperly, Magistrate Judge Gandhi, showing his actual bias, or the appearance

thereof, and his bias from conflicting financial interests refused to allow Petitioner

Ipsen to represent himself, even though he had over twenty-four (24) years

experience as a litigator in jury trials. Petitioner Ipsen went to the Clerk’s Office

when it opened at 10:00 a.m. on December 17, 2012 and his disqualification

motion was marked “Received.” This motion contained not only a detailed

statement of facts and Memorandum of Points and Authorities, but an

accompanying sworn Declaration of Steven J. Ipsen moving for the

disqualification of Magistrate Judge Gandhi under 28 U.S.C. Section 144 and

extensive exhibits thereto.

Even when one of his Clerks was presented with a copy of Petitioner Ipsen’s disqualification motion, Magistrate Judge Gandhi showing his actual bias, or the

appearance thereof, refused to stay the proceedings, allow Petitioner to represent


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himself, or respond in any manner to the merits of the disqualification motion.

Magistrate Judge Gandhi indicated that the disqualification motion was not to be

filed by the Clerk and therefore he would proceed with the case. Counsel Donna

Pettway went ahead and modified the disqualification motion in order to file same

with the Clerk’s Office. Copies of the modified motion were provided to counsel

for all interested parties as well as a copy to Magistrate Judge Gandhi’s Clerk so

that the jurist could recuse himself. Improperly, he did not disqualify himself.

However, unlawfully, he went ahead on the record and discussed other trial

matters, such as jury instructions. Magistrate Judge Gandhi should have halted all

proceedings pending ruling on the disqualification motion by another disinterested

judge selected on a random basis. Petitioner further made it clear that the issue of

his disqualification would be the subject of a Writ of Mandamus if necessary.

Magistrate Judge Gandhi did not appear to be at all concerned that there

would be an adverse ruling against him on the disqualification motion. Counsel for

the Defendants did not prepare any written opposition to the disqualification

motion of Petitioner Ipsen. When Petitioner Ipsen reiterated that he wanted to represent himself and that

Petitioner had actual conflict of interest issues with the representation by Mr.

Avrahamy, Magistrate Judge Gandhi, showing his actual bias or the appearance


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thereof, threatened Mr. Ipsen and indicated on the record that security was being

increased in the courtroom. Petitioner Ipsen was thus denied the fundamental

constitutional right to represent himself in his own civil case after he presented an

overwhelming case of undisclosed actual conflicts of interest by Mr. Avrahamy,

which Magistrate Judge Gandhi knew was similar to the other case that he was

presiding over relating to Mr. Avrahamy’s termination as counsel in the Gomez v.

The County of Los Angeles case.

Magistrate Judge Gandhi’s unreasonable, deliberate, shocking and actual biased failure to let Petitioner Ipsen represent himself smacks of complete

indifference to Petitioner’s constitutional due process rights. It is, moreover, a

showing of defense bias.

Under California law, a client has the right to fire a lawyer at any time, with or without cause. Farcasse v. Brent (1972) 6 Cal.3d 7841, 100 Cal.Rptr. 385, P.2d 9. A lawyer must withdraw when he “knows or should know that continued employment will result in a violation of those rules or the State Bar Act.” CRPC 3- 700 (B)(2). It is noteworthy that experienced counsel from a major law firm, JONES DAY, and from the L.A. County Counsel’s office failed to file any written opposition to the disqualification motion.


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Magistrate Judge Gandhi acted in other ways inconsistent with due process towards Petitioner Ipsen and showing a defense bias. For example, he severely

hampered Petitioner Ipsen’s ability to put on key witnesses and allow sufficient

time for direct and cross-examination, would not allow Petitioner Ipsen to put on a

key material witness and former Plaintiff, Marc Debbaudt who received a

$450,000 settlement from the County of Los Angeles in this case, and made certain

comments to unfairly prejudice Petitioner Ipsen’s case.

II. THE DISQUALIFICATION MOTION SHOULD HAVE BEEN

GRANTED, AND THE LITIGATION THEREAFTER ASSIGNED TO A NEW AND IMPARTIAL DISTRICT COURT JUDGE

The right to a fair trial is embodied in the Due Process Clauses of the 5th and

14th Amendments to the U.S. Constitution.

Substantive and procedural due process requires a fair and impartial judge

without adverse financial conflicts of interest. See Caperton, supra; Tumey v.

Ohio, 273 U.S. 510 (1927); and Gibson v. Berryhill, 411 U.S. 564 (1973) [trier of

fact incompetent to act by reason of bias].

Clearly, a trial judge’s orders and rulings can be set aside as void if they are marked by actual bias, or the appearance of bias, conflicts of interest, actual or

apparent, and irregularities in the proceedings. The failure by both District Judge


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Gee and Magistrate Judge Gandhi to address at all the latter’s substantial adverse

financial conflicts of interest and other facts raised in the disqualification motion

mandates the granting of the relief requested in this Writ of Mandamus.

A void judgment is one rendered by a court which lacked personal or subject

matter jurisdiction, or acted in a manner inconsistent with due process. See

Klug v U.S., 1620 F.Supp.892 (D.S.C. 1985); In re Estate of Wells, 983 P.2d 279

(Kan.App. 1999); U.S.C.A. Const. Amend. 5; Federal Rules of Civ. Proc. Rule

60(b)(4), 28 U.S.C.A.

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CONCLUSION For the reasons set forth herein, and based upon the record to date, this Court should grant the requested relief, including issuing a Writ of Mandamus

directing the United States District Court for the Central District of California to

order Magistrate Judge Gandhi disqualified from the case; reversing District Judge

Dolly Gee’s erroneous December 17, 2012 Order denying disqualification;

vacating any and all orders and rulings of Magistrate Judge Gandhi as void ab

initio; staying all proceedings in this case; and assigning a District Judge to preside

over a new trial in this case.

Dated: January 16, 2013 Respectfully Submitted, BY: __________/S/______________ STEVEN J. IPSEN Attorney at Law 1100 S. Hope Street, Suite 103 Los Angeles, California 90015 TELEPHONE: (213) 700-4133 Petitioner


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PROOF OF SERVICE

STATE OF CALIFORNIA, ) ) ss: COUNTY OF LOS ANGELES ) I am employed in the State of California, County of Los Angeles. I am over the age of 18 and am not a party to the within action; my business is 1100 S. Hope Street, Suite 103, Los Angeles, CA 90015. On January 16, 2013, I served the following document(s) described as: Emergency Petition for Writ of Mandamus and Exhibits Thereto on the interested parties in this action by:

[ ] BY MAIL placing true copies thereof enclosed in seal envelopes addressed as follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in Los Angeles, California in the ordinary course of business. I am aware that no motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. [ ] BY FACSIMILE by faxing said document to interested parties as described below, and obtaining a copy of the transmittal receipt. [ X ] BY EMAIL: I hereby certify that the above document was emailed to all opposing counsel in Case No. 2:09-cv-07931 and to the District Court. [ X ] BY ELECTRONIC MAIL (E-MAIL): I served the foregoing document by electronic mail via the Ninth Circuit Court of Appeals CM/ECF System.


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I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made, and that the foregoing is true and correct under penalty of perjury. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed January 16, 2013 at Los Angeles, California.

C. Grafman


***ipsen writ cover sheet - full disclosure...

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