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Appellate Justice Laurence Kay has been asked to disqualify himself from participating in two cases, and possibly more, by Marin County lawyers who claim he has been hostile toward their firm in hearings, rulings and general communications. The Corte Madera-based Law Offices of Mattaniah Eytan filed a disqualification motion with San Francisco’s First District Court of Appeal late Friday. Among other things, the firm claims Kay, who’s been on the appellate bench only 15 months, “ignored the controlling law” and distorted the facts unfavorably toward the firm and its clients in three prior appellate cases. The firm’s lawyers also contend that a representative of Kay’s Division Four told them that the justice “was regularly ‘irritated’” by the documents they file. “The thrust of this request,” Eytan associate Eric Schenk wrote, “is that the frequency with which Justice Kay has egregiously deviated from the factual record and controlling law in several opinions raise such doubts about his impartiality toward the Eytan office, and, consequently, its clients that compliance with the controlling canon of judicial ethics requires that he recuse himself.” Kay, 66, who served on the San Francisco Superior Court for 19 years, could not be reached for comment. In a telephone interview, Schenk would not say why he thought Kay might have a bias against his five-lawyer civil practice firm. But he said he and his fellow lawyers thought long and hard before deciding to challenge him. “We do a lot of appellate work, and being here in the Bay Area, the vast majority of our stuff winds up in the First District, and for some reason we’ve been drawing the Fourth Division quite frequently,” he said. “It’s very difficult to represent clients in good faith if you have a sense that” a justice might have a grudge against the firm. In one case involving a debtor in default, the firm’s motion alleged, Justice Kay ignored controlling law “on numerous critical points” and then distorted the record by saying the firm’s client didn’t dispute a crucial fact. “In short,” the firm said, “Judge Kay found it necessary to pervert the crucial undisputed facts in order to reach a conclusion affirming the judgments.” In another case, the firm insisted, Kay ignored “repeated statements” — during the oral argument and on rehearing — that counsel was not challenging the superior court’s jurisdiction. The opinion after rehearing “reasserted the false allegation (invented by Justice Kay) that appellants had argued that the superior court had no jurisdiction to hear appellants’ motion and, on the basis of that false allegation, Justice Kay repeated his contention that the appellants were ‘trifling with the courts.’” Attempts to force the recusal of appellate justices are rare, and Schenk said his firm’s research uncovered only a couple of precedents. A vexatious litigant filed one recusal request, while the other was against now-deceased Justice Marcus Kaufman in 1982. In Kaufman v. Court of Appeal, 31 Cal.3d 933, Kaufman’s fellow justices disqualified him, Schenk said, only to be overturned by the California Supreme Court, which said a challenged justice is the only one who can disqualify himself. If Kay refuses to remove himself from the Eytan firm’s pending cases, Schenk said, “There is no right of review.” But if the firm’s lawyers believe Kay continues to treat them unfairly, they could point that out in an attempt to get the rulings reversed on appeal. In its court papers, the firm states that justices are just as subject to “failings and foibles” as the next person. “Nonetheless,” it argues, “there is some ‘tipping point’ where a judge’s treatment of certain individuals evinces a pattern that goes beyond the limits of human ‘foibles’ that the law should tolerate, and suggests unacceptable bias.”

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