IN THE UNITED STATES DISTRICT COURT NEW HAMPSHIRE CHRISTOPHER KING, J.D. a/k/a KINGCAST.NET, Plaintiff-Petitioner, v.

FRIENDS OF KELLY AYOTTE, et al., Defendants. ) ) ) ) CASE NO. 2010-CV-501 JUDGE PAUL BARBADORO MAGISTRATE LANDYA McCAFFERTY

PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF HIS MOTION TO VACATE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE LANDYA B. McCAFFERTY, WHO ALONG WITH MCLANE GRAF ATTORNEYS NEVER DISCLOSED THE FACT THAT SHE WORKED AT DEFENDANT KELLY AYOTTES OLD LAW FIRM ALONGSIDE PLAINTIFFS OPPOSING COUNSEL Now comes Plaintiff to issue this Reply Memorandum because the Defendants, by and through Counsel, have lied and materially misrepresented the facts and law in this case. These facts begin with the fact that they all actively and willingly participated in a process in which a sitting Judge with known ethical conflicts failed to report her work history with McLane, Graf when even 1L law students know better than that,1 and culminating with all of them falsely representing to this Court that Plaintiff has been disbarred. This Court must regain some semblance of propriety and Honor now that Plaintiff has CORRECTLY identified many procedural and substantive faults on the part of not one but two Judges that has led to their recusals. Further, as shall be demonstrated herein, in contrast to Plaintiff, the Defendants failed to cite any controlling or persuasive cases that show that the Court had any authority whatsoever to deny Plaintiffs right to file additional pleadings -- including a Third Amended Complaint showing pattern and practice as: 1) Named Defendant Nashua PD made disparaging comments against the First Amendment YouTube videos of Plaintiff and of Dave Ridley/Ridley Report as they arrested Mike Gannon for videotaping them, in clear violation of Glik v. Boston and; 2) Reporter Dave Ridley was illegally arrested and acquitted under virtually identical situation as Plaintiff by Nashua PD, again a named Defendant in the case at bar. There simply comes a point in time where this sort of contumacious behavior cannot and will not be tolerated. Now is that time.

1 Seriously, two 1Ls on the F Train in New Yorks Lower East Side recognized this. 1

Plaintiff will be brief and cite the following issues, using Defendants own pleading filed yesterday:

The Defendants simply cannot make this argument with a straight face while tersely acknowledging in their own Pleading yesterday that Her Honor did in fact recuse herself. That statement is sanctionable in and of itself. May the Court take Judicial Notice that Judges are loathe to recuse themselves and that recusal only occurs when there are serious substantive and/or procedural issues at hand. Moreover, Plaintiff has already addressed the fallacy of Judge Barbadoros ruling as follows:

**************************** The reason for the Void is simple: Magistrate McCafferty, a former ethics/discipline staffer at NH Bar Association, was fully aware under a 28 U.S.C. 455 analysis before she took the Bench in this case that she had substantial connections with McLane, Graf et al. -- Defendant Kelly Ayottes former law firm. Not only did she work at McLane, Graf, her predecessor Judge Muirhead worked there and trained her. Moreover, her former boss and firm founding partner Jack Middleton (who likely wrote a letter of recommendation for her ascension to the bench) joined her former co-worker and current NH Bar President Jennifer Parent across from Plaintiff as lead Defense Counsel for now Senator Kelly Ayotte. Plaintiff hereby retenders his Request for Full Disclosure, which the Court and Counsel have assiduously avoided because production of same would only show how correct Plaintiff was, ab initio.

Defendants fail to point out what those alleged errors were, and it is patently obvious that the issue advances a material issue because the Court is still laboring under an Order that was harshly and unfairly biased against Plaintiff, written by a Judge who has finally admitted that she had an ethical conflict and who recused herself, albeit initially through an underhanded manner, only putting her recusal to written Order at least three (3) weeks after being called on it by Plaintiff. But while Defendants are making vague assertions about errors allegedly made by Plaintiff, they miss the fact despite being warned that Plaintiff never was disbarred. Even casual due diligence would uncover that fact so the Statement issued in Brian Cullens email and republished in this Court that Plaintiff was disbarred is also Sanctionable in and of itself.2 LAW AND ARGUMENT The governing law is property identified -- if not addressed by Defendants: In order for Certification and Interlocutory appeal we need (1) an order that involved a controlling question of law; (2) a substantial ground for difference of opinion as to that question of law; and (3) that the decision on the appeal would materially advance the ultimate termination of the litigation. See Caraballo-Seda v. Municipality of Hormigueros, 395 F.3d7, 9 (1st. Cir. 2005). (1) Plaintiff submits that in the first instance, the question of whether a Court should vacate a Decision entered by a Judge with a known, identified ethics conflict is of course a question of controlling law because in a case such as this the Magistrate has already determined albeit falsely that there is no substantial likelihood of success on the merits on the front end, meanwhile we have Judge Barbadoro truncating Plaintiffs

Not that disbarment would constitute any sort of barometer on a NH Attorneys ability to practice law. As we all know, Shaheen & Gordons Michael McLaughlin was not only disbarred but is a convicted felon. Note further that Counsel stated the Plaintiff was interjection extraneous matter into this case, nothing is more extraneous than a lawyer like Brian Cullen trying to threaten Plaintiff with an old suspension (not: disbarment) order from another Court when he has a recent Contempt Order in this very Court. See Bourne v Town of Madison, 2005-CV-365 at the end of this document and as Appendix A.

rights to enter new and directly relevant material about pattern and practice of the Nashua PD on the back end. That is the proverbial Sylla and Chrybdis one-two knockout punch, but Plaintiff is prescient enough, and skilled enough to see it coming and that frustrates Defendants to no end, but thats just too bad. (2) Next up, may the Court take Judicial Notice that there are literally hundreds of cases that address this thorny issue: For example here is a fascinating case in which the Court tried to do the right thing in vacating its prior Order, albeit after the window of time had passed. The key to remember in this instance is that the potential conflict was unknown to the Court in the first instance, unlike the case at bar: Van Ness v. Eckerd, S. Carolina Ct. App #3531, June 27, 2002. HEARN, C.J.: William Van Ness appeals from two orders issued by two different circuit court judges. First, he appeals an order setting aside an entry of default against Eckerd Corporation. Secondly, he appeals from an earlier order in which the circuit court judge sua sponte vacated his prior order denying Eckerd relief from entry of default. He contends there was no good cause shown to set aside the entry of default or, in the alternative, that the first circuit judge should not have vacated his order. We vacate both the order setting aside the entry of default and the decision vacating the original order and remand for further proceedings. In point of fact, entire Law Review articles have been published on the matter and law firms have issued online treatises, such as the one by the lawyers in the Manatt firm, used by the State of California for Continuing Legal Education seen at the conclusion of this Reply and at Appendix B: Second, after recusal, it is possible for a litigant to have a successor judge reexamine the orders of his or her predecessor. However, to change a prior order, a party must make a strong showing of "good cause" by establishing that the original order was legally incorrect in the first instance or that there are new material facts or circumstances warranting a different result. So that matter is also resolved in Plaintiffs favor. (3) The Defendants have once again materially misapplied the law. Their cited case of Caraballo-Seda v. Municipality of Hormigueros, 395 F.3d7, 9 (1st. Cir. 2005) stands for the proposition that Interlocutory Appeal shall not be improvidently granted when many of Plaintiffs claims are going forward. Allow Plaintiff to quote direction from the First Circuit:

Moreover, since the rest of the claims based on the same underlying facts have proceeded in the district court, the interlocutory appeal on the WIA issue does not "materially advance the ultimate termination of the litigation."

In this case there is no such showing because Magistrate McCafferty has carefully crafted her Report and Recommendations to all but foreclose any claims from going forward, and Judge Barbadoro accepted it prior to his recusal without any demonstrable consideration of Plaintiffs Motion for Reconsideration, his Motion for Disclosure or his Motion to Recuse Magistrate McCafferty. That is not the way to mete out Justice in a Federal Court and Plaintiff presumes that the District Court of Rhode Island will take a much more principled approach to these matters as it typically does in these discriminatory First Amendment application cases, see generally Jones v. Warwick, 08 375ML and even protecting the rights of raunchy black rappers 2LiveCrew in a case I covered 22 years ago as Editor of the Ohio Call & Post Cincinnati Edition: Atlantic Beach Casino, Inc. v. Morenzoni, 749 F. Supp. 38 (1990). It goes without saying that the matter materially affects Plaintiffs ability to continue and terminate proceedings in his favor because without Vacation of the Order, the Court continues to labor under a series of unlawfully biased and false determinations as thoroughly set forth in prior Pleadings and to a lesser extent below on pp 5-6. Those determinations, particularly when coupled with Judge Barbadoros unlawful refusal to allow Plaintiff to file a Third Amended Complaint or other memoranda noting a continued pattern and practice and policy on the part of Nashua PD spell the death knell for this case.Which is exactly what McLane, Graf Defense Counsel were counting on when they and Judge McCafferty failed to disclose her background at the outset of this case. An ethics Complaint will follow against all of the lawyers involved because they all were no doubt well aware that Judge McCafferty worked at McLane, Graf with and under Opposing Counsel immediately after Defendant Ayotte left the firm. This is legally and morally repugnant, behavior, yet these lawyers persist in trying to threaten the Undersigned with Sanctions. The Undersigned in turn stands absolutely resolute and threatens them with SCOTUS.

Turning now to Defendants misrepresentations of Plaintiffs arguments and case law they erroneously wrote:

That is once again a false Statement that also belies common sense. Plaintiff has REPEATEDLY stated and argued this point, using case law but rather than face the music the Defense counsel have joined together in a pleading to outright lie to this Court. Specifically Plaintiff wrote in his Motion to Void/Vacate: See generally Payton v. State, 937 So. 2d 462 (2006) holding that a Judicial argument with counsel may be grounds for recusal and that any orders issued once the grounds for disqualification is valid are void. Moreover, if Summary Judgment is entered by a disqualified judge the judgment is voidable upon plaintiff's objection." Urias v Harris Farms, Inc. (1991) 234 CA3d 415, 426, 285 CR 659. These cases are instructive here because unlike Payton, the grounds for recusal did not develop along the way, rather they existed all along as witnessed by the organizational chart on the following page. As such the only equitable solution is to void the findings of fact and law set forth by Her Honors Report and Recommendations and begin anew. The Court simply cannot be permitted to use her Report in addressing the pending Motions to Dismiss because the errors she made are so clearly against the manifest weight of the evidence: She saw Plaintiff at all media events engaging in banter with Kelly Ayotte supporters who were in no ways concerned with his presence or worried about his conduct during the exact same time periods that Witness Monier claimed Plaintiff was creating a suspicion of fear or disturbance yet she ignored those facts. She saw Plaintiff being continually harassed by Lieutenant John Fisher even though Plaintiff was on the sidewalk yet ignored it. She saw other white people were actually closer to a backing vehicle but received no comment from Fisher and she ignored that as well. All of these issues have been raised in Plaintiffs 14 July 2011 Motion for Reconsideration on his Motion for Recusal, which has not been addressed by the Court.

All Defendants can do in this instance is to point to the spurious and unlawful orders of Judge Barbadoro, even as they ignore the points set forth by Plaintiff when he wrote in prior pleadings: Lastly, as to any pending Orders that Plaintiff is not permitted to file anything, those orders are ipso facto Unconstitutional as well given the circumstances manifest. Not only that, but Plaintiff has a tracker on his website and he is aware that Counsel have reviewed the following law, but have failed to provide any law for their position that the Courts action was lawful. In point of fact a reasonable observer could find that the Courts actions were not lawful because Judge Barbadoro recused himself sua sponte, before Plaintiff could even move for it: Richardson Securities v. Lau, 825 F.2d 647 (1987).

We believe that the district judge usurped power when she prevented the Laus from filing a motion for leave to amend their answer. Absent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation, see In re Martin-Trigona, 737 F.2d 1254, 1261-62 (2d Cir.1984), or a failure to comply with sanctions imposed for such conduct, Johl v. Johl, 788 F.2d 75 (2d Cir.1986) (per curiam), a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure. The actions of the district court effectively prevented the Laus from filing a motion for leave to amend. The refusal to permit a motion to be filed without a prior conference, followed by a failure to hold such a conference until nearly five months after one was first requested, and then by a denial of the motion for having been filed too late, are actions so "at odds with the purpose and intent of [the Federal Rules]," Padovani v. Bruchhausen, 293 F.2d 546, 548 (2d Cir.1961), as to warrant mandamus relief. 5

CONCLUSION Magistrate Judge McCafferty knew, ab initio that she could not sit for this case, meaning that she should have recused herself at the outset, rendering anything she touched as tainted. The fact that she didnt even follow her normal protocol in recusing herself provides further indicia of improper activity and the Courts ongoing reliance on her unlawfully-skewed Report and Recommendations will not allow Plaintiff to substantially advance his case because almost everything she wrote in it was false or unfair to Plaintiff. Plaintiffs opposing counsel, including current New Hampshire Bar Association President Jennifer Parent, also knew as much yet failed to behave in principled manner.

As such, this entire case has been tainted and Counsel and the Court would do well to recognize the pit that they have sunk themselves into going forward. SCOTUS and Justice Elena Kagan are watching, and Plaintiff looks forward to having the Counsel of his Choice brief and argue this case. Rule 7.1(e)(1) Notice The body of this Reply is 7 pages and as such the attached Appendix does not count toward the restricted page count of 10 pages. /s/ Christopher King, J.D. _____________________________ Christopher King, J.D. http://KingCast.net -- Reel News for Real People 617.543.8085

CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Emergency Motion was electronically served on 6 September 2011 to: Jennifer Parent and Jack Middleton, Esq. City Hall Plaza 900 Elm Street Manchester, NH 03101 Gordon MacDonald, Esq. Nixon Peabody LLP 900 Elm Street Manchester, NH 03101 Brian Cullen, Esq. 10 East Pearl Street Nashua, NH 03060 /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D. 617.543.8085

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Articles By Us
Back to the Well: Can New Trial Judges Reverse a Ruling Made by Their Presecessors? Benjamin G. Shatz and James C. Martin Civil Litigation Reporter April 2004

Posing the Question It is not uncommon for a case to be handled by several different trial judges. This can happen for a variety of reasons, most frequently when a party successfully moves to disqualify a judge. Although there is ample appellate precedent dealing with the review of motions to disqualify, less attention has been paid to the effect that a change in judges might have on rulings previously made in the trial court. In particular, when a new judge takes over a case after a prior judge is disqualified or recused, to what extent can the new judge revisit decisions made by the old one? The problem is that the jurisprudential principles that generally lend finality to interim trial court rulings do not apply when there is a change of judges, but no appellate review. In these circumstances, collateral estoppel does not attach to a prior trial court ruling because of lack of finality. Sandoval v Superior Court (1983) 140 CA3d 932, 190 CR 29. And the law of the case doctrine does not apply to rulings by trial courts either; it applies only to determinations made by appellate courts. Providence v Valley Clerks Trust Fund (1984) 163 CA3d 249, 209 CR2d 276. California Courts Divide on the Answer Historically, California courts have provided diverse answers to the question of when one trial judge may revisit the decision of another when collateral estoppel or law of the case do not apply. One line of authority, typified by Urias v Harris Farms, Inc. (1991) 234 CA3d 415, 285 CR 659, takes an expansive view of a subsequent judge's authority. These cases generally hold that orders rendered by a disqualified judge are voidable if the issue is properly raised again by an interested party. Urias In Urias, the judge granted summary judgment and entered judgment for the defendant in a wrongful termination case. Shortly after entry of judgment, however, the plaintiff sought to void the summary judgment and disqualify the judge on the ground that the judge's former law firm had a close and long-standing relationship with the defendant. Because the judge never responded to the statement of disqualification--inaction that the law construes as a consent to disqualification--the second judge assigned to the matter granted the request for disqualification under CCP 170.3(c)(4). With regard to the entry of summary judgment by the disqualified judge, the Urias court relied on a line of cases from 1920-1984 and found that a judgment or order rendered by a disqualified judge is void whenever brought into question. See, e.g., Cadenasso v Bank of Italy (1932) 214 C 562, 567, 6 P2d 944 (void judgment rendered by judge who held stock in defendant bank); T.P.B., Jr. v Superior Court (1977) 66 CA3d 881, 136 CR 311 (any act of disqualified judge is voidable).

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Armstrong However, in contrast to Urias and the cases it relied on, another line of authority takes a narrower view of the revisitation issue. These cases generally hold that the power of one trial judge to vacate another judge's orders is "limited" and should only be exercised as prescribed by statute. Church of Scientology v Armstrong (1991) 232 CA3d 1060, 283 CR 917 (citing cases from 1939-1990). In Armstrong, after entry of judgment and at the litigants' request, the judge sealed the record in the case. Two years later, after the judge had retired, a third party sought to intervene to obtain access to the record for his own litigation. The judge who had replaced his retired predecessor sua sponte vacated the order sealing the record. On appeal, the Armstrong court ruled that this was error and that the second judge exceeded his authority in vacating the earlier order. Armstrong, like Urias, relied on a long line of authority. See, e.g., Wyoming Pac. Oil Co. v Preston (1958) 50 C2d 736, 740, 329 P2d 489 (judge's ruling that defendant was evading service of process was "prior binding adjudication" that prevented second judge from dismissing action for failure to serve process and could not be vacated without showing of cause); Greene v State Farm Fire & Cas. Co. (1990) 224 CA3d 1583, 1589, 274 CR 736 (second judge had no authority to "rethink" and effectively vacate first judge's order extending deadline to bring case to trial); Fallon v Superior Court (1939) 33 CA2d 48, 52, 90 P2d 858 (successor judge could not vacate order of predecessor judge except as allowed by statute). To further complicate matters, the judicial disqualification statute (formerly CCP 170) was renumbered and amended in 1984 to include a provision that a judge replacing a disqualified judge "shall not" set aside prior rulings without "good cause." CCP 170.3(b)(4) (formerly 170.3(b)(3) before 1990 amendment). No cases have interpreted this "good cause" language. See Sincavage v Superior Court (1996) 42 CA4th 224, 49 CR2d 615 (implicit finding of lack of good cause when defendant's conviction in jury trial presided over by later-disqualified judge could stand, but new judge had to preside at further proceedings). Guidance from PBA, LLC v KPOD, Ltd. A recent court of appeal opinion provides some helpful guidance for practitioners on the question of the authority of a succeeding trial judge to reexamine the rulings of his or her predecessor. PBA, LLC v KPOD, Ltd. (2003) 112 CA4th 965, 5 CR3d 532, involved the multimillion dollar purchase, operation, and sale of a hotel by three joint venturers, PBA, KRAD, and KPOD. Shortly after the hotel's purchase, disputes arose between the companies about the management of their hotel, ultimately leading to the hotel's $12 million sale by partition and numerous complaints and cross-complaints among the companies and their principals. Litigation began in early 1997 and continued for the next several years involving at least five different judges.

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At Trial, Disqualification Requests Denied and KPOD Principal a Vexatious Litigant During the course of litigation, KPOD's principal sought to disqualify one particular judge five times, beginning with a declaration alleging bias and prejudice under CCP 170.3. The judge had four options in responding to the declaration: (1) request a transfer of the case to another judge agreed on by the parties; (2) consent to disqualification and have the presiding judge appoint a replacement; (3) file a written verified answer admitting or denying the allegations; or (4) strike the declaration as procedurally defective. CCP 170.3(c)(2)-(3), 170.4(b). Failure to exercise one of these options is deemed a consent to disqualification. CCP 170.3(c)(4). The judge responded to the disqualification declaration by filing and serving a verified answer, but later that same day, determined that the declaration was untimely and failed to meet the statutory requirements. The judge thus struck the declaration. Four days later, KPOD's principal filed another declaration, which also was stricken. At this point, PBA moved to declare KPOD's principal a vexatious litigant. The judge granted this unopposed motion based on the documents supporting the motion and the judge's own observations. The following year, KPOD's principal filed two more declarations of bias that were denied by two different judges. Finally, KPOD's principal filed a fifth declaration of bias and prejudice. This time the judge apparently mooted the declaration by recusing himself in the "interests of justice" under 170.1(a)(6). New Trial Judge: Vexatious Litigant Order Reversed The matter was transferred to yet another judge and KPOD filed a motion before the new judge to set aside all orders made by the recused judge. This motion was denied. KPOD's principal then brought a motion to vacate the order declaring him to be a vexatious litigant. PBA opposed the motion. This time the new judge granted the motion, reversing the prior judge. On appeal, KPOD's principal sought review of his five unsuccessful disqualification attempts. PBA also appealed, arguing that the successor judge "acted as a de facto court of appeal" in overturning decisions made by the prior judge--in particular, the order declaring KPOD's principal to be a vexatious litigant. Appellate Court: No Review of Disqualification Orders Consistent with CCP 170.3, governing recusals and disqualification proceedings, the PBA court concluded it could not review the disqualification orders. Section 170.3(d) provides that "determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days." CCP 170.3(d). Case law interpreting this language confirms its plain meaning: The exclusive means for review of a judicial disqualification order is by writ.

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See, e.g., Curle v Superior Court (2001) 24 C4th 1057, 103 CR2d 751 ("the exclusive means for review of a disqualification order is by a petition for writ of mandate"); People v Williams (1997) 16 C4th 635, 652, 66 CR2d 573 (same); People v Hull (1991) 1 C4th 266, 275, 2 CR2d 526 (writ review requirement applies both to challenges for cause under CCP 170.1 and peremptory challenges under CCP 170.6). Restricting appellate oversight of judicial disqualification orders to writ review makes good sense for at least two reasons. First, this limitation prevents the waste of resources that would occur if a proceeding were tried on the merits only to be voided by an appellate ruling that the judge should have been disqualified. Second, allowing review of a disqualification order after a final judgment would provide the party seeking disqualification the proverbial "second bite at the apple"--i.e., if the party lost on the merits, that loss could be attacked collaterally by appealing a disqualification ruling. Gai v City of Selma (1998) 68 CA4th 213, 230, 79 CR2d 910 (outlining "twofold" purpose of limiting appellate review to writ petition). Trial Court Can't Revisit Vexatious Litigant Order Without New Facts, Circumstances, or Law The statutes governing declarations of vexatiousness contain no provision for reversing such determinations. CCP 391-391.7. This troubled the PBA court, which noted that, as a matter of "fundamental fairness," this brand of vexatiousness must be "erasable" under "appropriate circumstances." 112 CA4th at 976. Likening a declaration of vexatiousness to an injunction, the court reasoned that such declarations could be reversed to serve the "ends of justice" or on a showing of a "material change in the facts." 112 CA4th at 976; see CCP 533 (governing modification or dissolution of an injunction). This still left open the questions of whether a successor trial judge could reverse a prior judge's order, and if so, under what standard of review. The statutory scheme governing judicial recusal and disqualification provides that a judge replacing a disqualified judge "shall not" set aside the prior judge's rulings without "good cause." CCP 170.3(b)(4). Without citing this statute, the PBA court effectively applied it by reasoning that such a reversal would "at least" require a change in facts or circumstances. 112 CA4th at 976. From there, the court concluded that the successor judge abused his discretion in reversing his predecessor because KPOD's principal failed to provide any new facts showing that the order declaring him a vexatious litigant was incorrect.

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The Lessons of PBA Two important lessons emerge from PBA. First, when it comes to judicial disqualification orders, appellate review requires a timely writ petition. The controlling statute and case law make clear that such orders will not be reviewable by appeal. Second, after recusal, it is possible for a litigant to have a successor judge reexamine the orders of his or her predecessor. However, to change a prior order, a party must make a strong showing of "good cause" by establishing that the original order was legally incorrect in the first instance or that there are new material facts or circumstances warranting a different result. This "good cause" standard is analogous to the "newly discovered facts or law" threshold for granting motions for reconsideration. The PBA court, for example, emphasized that there was no procedural method for dissolving the vexatious litigant order entered by the original judge, other than a timely motion for reconsideration. The court specifically referred to the standard set out in CCP 1008, i.e., that reconsideration is granted only "upon a change of facts, circumstances or law." In PBA, the successor judge abused his discretion by vacating the original vexatious litigant finding because the litigant had "completely failed" to establish that the determination was either incorrect in the first place, "or no longer required in light of new facts." Thus, there was "no material change" justifying reversal of the previous prefiling order. The Continued Vitality of Urias in Light of PBA and Armstrong It may be possible to harmonize the holdings in PBA and Armstrong, which take a restrictive view of revisiting an existing order, with Urias' holding that such orders are voidable if the issue is properly raised. One important distinction among these cases is that, in PBA, the judge who entered the vexatious litigant order, although the target of several disqualification attempts, recused himself, and in Armstrong the judge who entered the record-sealing order retired. In contrast, in Urias, the judge whose summary judgment ruling was challenged had been disqualified. Once the Urias court determined that the statement of disqualification was legally sufficient, it concluded that "[b]ecause the summary judgment was entered by a disqualified judge, the judgment was voidable upon plaintiff's objection." Urias v Harris Farms, Inc. (1991) 234 CA3d 415, 426, 285 CR 659. Thus, when a prior order has been rendered by a judge who has not been disqualified, the courts likely will require a strong showing of good cause--i.e., something akin to a CCP 1008 showing--for a successor judge to change it. See McPherson v City of Manhattan Beach (2000) 78 CA4th 1252, 93 CR2d 725 (reconsideration requires new or different circumstances, facts, or law that could not originally be presented); Hollister v Benzl (1999) 71 CA4th 582, 83 CR2d 903 (newly produced documents justified reconsideration). But when the prior judge has been disqualified, courts may apply a more relaxed standard, linked to the reasons for the disqualification, in considering whether a prior order should be altered or overruled.

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This material is reproduced from California Civil Litigation Reporter (v. 26:2(April 2004) copyright 2004 by the Regent's of the University of California. Reproduced with permission of Continuing Education of the Bar California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit the website, www.CEB.com)

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