Northern California Record

Wednesday, April 1, 2020

Another attempt by plaintiff attorneys to DQ judge following unfavorable ruling in lemon law litigation, fails

Federal Court

By Ann Maher | Feb 25, 2020

Breyer
Breyer

SAN FRANCISCO - A federal judge presiding over Volkswagen "clean diesel" multi district litigation denied a move by plaintiff attorneys to disqualify him just as the case was heading to trial.

U.S. District Judge Charles Breyer on Feb. 21 found that attorneys for Knight Law Group and The Altman Law Group failed to demonstrate the degree of "favoritisim or antagonism" required to justify his disqualification. He also found that the law firms' motion was intended to delay proceedings.

Jurors had been picked on Feb. 18, with a bench trial portion set to take place on Feb. 24 and a jury trial portion set to begin Feb. 25.

The case arises from Volkswagen’s evasion of U.S. and California emissions standards by equipping “clean diesel” vehicles with hidden defeat devices that gamed emissions testing procedures. According to background in Breyer's order, the "scandal" led to more than 1,000 lawsuits, which were consolidated in his court at the Northern District of California.

Most of the suits were resolved by Breyer in two settlements. The plaintiffs in the case now going to trial are 10 optouts who are bringing state common law and statutory claims against Volkswagen Group of America, Inc.

Two weeks before jury selection, Breyer had granted Volkswagen's motion for summary judgment on Song Beverly Act (lemon law) claims because the plaintiffs' cars were merchantable despite the presence of the defeat devices.

In filing its motion to disqualify, KLG argued that plaintiffs had "harbored concerns that his service as judge in the opt-out cases would raise an appearance of bias against Plaintiffs."

"Nonetheless, Plaintiffs proceeded in good faith in this litigation," Lauren Ungs and Steve Mikhov of KLG and Bryan Altman wrote. "But now, in the wake of the February 4, 2020 summary judgment order, the concerns about appearance of bias require disqualification. This is so, because the Court has turned Phase I into a trial of

whether the Class Settlement was a fair resolution of Plaintiffs’ CLRA (Consumers Legal Remedies Act) claims—and has mandated that this determination will be made by this Court, not a jury.

"In other words, Judge Breyer has given to himself the power to decide whether the Class Settlement that he fashioned and that he approved, was fair. Moreover, further rulings and statements made on the record in the wake of the summary judgment order hammer home the impression that Judge Breyer is favorably predisposed toward the Class Settlement to a degree that renders him unable to be a fair and impartial judge of this trial."

Lawyers representing Volkswagen, at Sullivan & Cromwell in New York and Los Angeles, took a shot at KLG and Altman's move to disqualify, writing that it was a "frivolous" tactic for delay and aimed at pressuring the Court into "reconsidering its correct legal rulings on Plaintiffs' legally and factually unsustainable claims."

"This is not the first such motion Plaintiffs have made in this action," VW lawyers wrote in response. "In November 2018, Plaintiffs moved to disqualify Magistrate Judge Corley because of her 'intimate involvement with the class action settlement process,'" which this Court denied.

Volkswagen lawyers say that filing disqualification motions is the "modus operandi" of KLG and Altman.

"In just a few hours of research, Defendants have already identified four motions filed by Mr. Altman and the Knight Law Group to disqualify the presiding judge in their cases," they wrote.

In the case of King v. Hyundai Motor in Placer County Superior Court, in which Altman sought disqualification mid-trial, Judge Michael W. Jones "made clear that the real offense at trial was that 'Altman blatantly ignored the Civil Pre-Trial Orders...and evidentiary rulings,' and repeatedly elicited and disucssed inadmissible evidence that 'Mr. Altman knew he was not to discuss,'" Volkswagen lawyers wrote.

In an 18-page order denying Altman's motion to disqualify, Jones pointed out that he was not prejudiced or biased against any party or their counsel in the action. He described the case as a "very simple lemon law case" where the plaintiff alleged a backup camera was defective and after a handful of attempts to have defendant's authorized repair facilities diagnose and fix, it remained defective.

"Plaintiff was represented by three separate attorneys from three different law firms," Jones wrote. "Mr. Altman was lead trial counsel for the plaintiff. I have presided over multiple Lemon Law cases including jury trials, some of which included the three firms representing plaintiff. Although he repeatedly felt the need to inform the court and the jurors that he had over 200 jury trials, this was my first experience and trial with Mr. Altman."

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U.S. District Court for the Northern District of California, San Jose Division