Gohari v. Mcdonald's Corp.

2022 IL App (1st) 201086

220 N.E.3d 355

468 Ill.Dec. 47

Farah GOHARI, as the Named Class Representative Plaintiff and on Behalf of All Others Similarly Situated, Plaintiff-Appellant,

v.MCDONALD'S CORPORATION; Lott #1, Inc., McDonald's Franchise at O'Hare Airport, Terminal 1, Concourse C; and Lott #1, Inc., McDonald's Franchise at O'Hare Airport, Terminal 1, Concourse B, Defendants-Appellees.

No. 1-20-1086

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed February 22, 2022

Clinton A. Krislov and Kenneth Goldstein, of Krislov & Associates, Ltd., of Chicago, for appellant.

David J. Doyle and Matthew H. Bunn, of Freeborn & Peters LLP, of Chicago, for appellee McDonald's Corporation.

Jessica K. Burtnett and Brittany N. Bermudez, of Traub Lieberman Straus & Shrewsberry, LLP, of Chicago, for appellee Lott #1, Inc.

OPINION

JUSTICE WALKER delivered the judgment of the court, with opinion.

¶ 1 Farah Gohari sued McDonald's Corporation (McDonald's) for fraud. At the start of a hearing on a discovery motion, Gohari moved for substitution of judge as of right. The trial court denied the motion and later entered summary judgment in favor of McDonald's. Gohari argues on appeal that we must vacate all orders entered after the erroneous denial of her motion for substitution of judge. McDonald's argues that the motion came too late because the judge had already ruled on substantial issues and had started a hearing before Gohari moved for substitution of judge.

¶ 2 As we interpret section 2-1001 of the Code of Civil Procedure ( 735 ILCS 5/2-1001 (West 2018) ), which governs motions for substitution of judge, we hold that rulings concerning the order in which the court will consider motions and rulings regarding the form of documents filed with the court do not constitute rulings on substantial issues for purposes of section 2-1001. We further hold that a hearing on a discovery motion does not defeat the right to substitution of judge under section 2-1001. We find that the trial court's erroneous denial of the motion for substitution of judge requires us to vacate all orders entered after the erroneous ruling, and we remand for further proceedings on the complaint.

¶ 3 I. BACKGROUND

¶ 4 In 2016, Gohari sued McDonald's and others, claiming that McDonald's outlets at O'Hare Airport posted signs showing prices far less than the prices McDonald's charged for the items. In the complaint, Gohari alleged common law fraud in count I and a violation of the Consumer Fraud and Deceptive Business Practices Act ( 815 ILCS 505/1 et seq. (West 2018)) in count II. McDonald's moved to dismiss the complaint. Judge Kathleen Pantle dismissed the common law fraud count with prejudice but found the consumer fraud count viable. She denied a motion to add appealability language to the order for dismissal of count I. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).

¶ 5 Judge Pantle retired in July 2018. The circuit court assigned the case to Judge Anna Loftus. Judge Loftus presided at a brief settlement conference in March 2019, where she entered no rulings.

¶ 6 McDonald's filed a motion for summary judgment. Gohari filed a response claiming she needed depositions from several employees of McDonald's to respond to the motion for summary judgment. See Ill. S. Ct. R. 191 (eff. Jan. 4, 2013). Before the scheduled hearing on the discovery motion, Gohari's counsel sent several case citations to the court in letters addressed to the court.

¶ 7 Prior to the hearing on July 19, 2019, Judge Loftus told Gohari's counsel she would ignore the citations and arguments included in the letters sent to the court but invited counsel to make the arguments and citations properly in briefs filed with the court. Gohari's counsel asked the court for leave to file an amended complaint. Judge Loftus ruled that she would hear argument on the discovery motion before hearing argument on the motion for leave to amend the complaint.

¶ 8 The following exchange preceded discussion of the motion for leave to take depositions:

"MR. KRISLOV [GOHARI'S COUNSEL]: Your Honor, since you have not ruled substantively on anything in this case, we would ask for a change for our one-time—

THE COURT: Well, the question is whether the hearing has begun, and I addressed—I discussed the motion itself, and I have started the hearing, and I think you'd have [to] address that factor.

You can get it as a right, as long as no hearing has begun, so the question is whether the hearing has begun.

MR. KRISLOV: Well, you have begun the hearing on a non-substantive matter. It's a procedural issue.

THE COURT: Well, I think it's a substantive matter, whether I should allow you to take four depositions before responding to a motion for summary judgment.

***

THE COURT: So, are we still moving forward with the motion to substitute?

MR. KRISLOV: Yes, we would still want to move forward with the motion to substitute.

***

THE COURT: I'm concluding on the record today that I've already begun the hearing. I've already addressed certain arguments counsel has raised, upon which it appears that prompted the request for substitution, which is along the lines of testing the waters.

So, for the purposes—in response to your motion to substitute, I'm going deny that motion.

And just for the record, it was a motion as of right."

¶ 9 In October 2020, Judge Loftus entered an order granting summary judgment in favor of McDonald's and the other defendants, finally disposing of the case. Gohari appealed. Before this court addressed the appeal, our supreme court decided Palos Community Hospital v. Humana Insurance Co. , 2021 IL 126008, 451 Ill.Dec. 220, 183 N.E.3d 677. The court rejected "test[ing] the waters" as grounds for denying a motion for substitution of judge as of right. Palos Community Hospital , 2021 IL 126008, ¶ 30, 451 Ill.Dec. 220, 183 N.E.3d 677. Gohari filed a motion contending that, in light of Palos Community Hospital , this court must reverse the denial of her motion for substitution of judge and vacate all orders entered after she made the motion on July 19, 2019. McDonald's contends that even under Palos Community Hospital , Gohari made the motion for substitution of judge too late. We took Gohari's motion for reversal in light of Palos Community Hospital with the case.

¶ 10 II. ANALYSIS

¶ 11 Gohari argues on appeal that the trial court should have granted her motion for substitution of judge and should have denied McDonald's motions for summary judgment. We review de novo the denial of a motion for substitution of judge as of right. Illinois Licensed Beverage Ass'n, Inc. v. Advanta Leasing Services , 333 Ill. App. 3d 927, 932, 267 Ill.Dec. 118, 776 N.E.2d 255 (2002).

¶ 12 Section 2-1001(a)(2)(ii) of the Code of Civil Procedure provides that the trial court must grant a party's motion for substitution of judge if the party presents the motion "before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case." 735 ILCS 5/2-1001(a)(2)(ii) (West 2018). McDonald's argues that Gohari filed her motion too late because Judge Loftus had already ruled on substantial issues and because Judge Loftus had already started a hearing.

¶ 13 Judge Loftus interpreted section 2-1001 in accord with First District precedent. In Cincinnati Insurance Co. v. Chapman , 2012 IL App (1st) 111792, ¶ 23, 363 Ill.Dec. 401, 975 N.E.2d 203, for example, the court emphasized the prevention of judge shopping through use of the "test the waters" doctrine. Only one of Illinois's five appellate districts—the Fourth District—rejected the "test the waters" doctrine prior to Palos Community Hospital . The Fourth District's reasoning in Schnepf v. Schnepf , 2013 IL App (4th) 121142, 375 Ill.Dec. 75, 996 N.E.2d 1131, provides guidance for interpretation of section 2-1001.

"The [test the waters] doctrine not only does nothing to advance the functioning of section 2-1001(a)(2), but it also affirmatively frustrates its purpose. By inviting the trial judge to make the potentially nuanced, subjective determination of whether he has tipped his hand at some point during the proceedings, the doctrine undermines the movant's right to have the fate of his case placed in the hands of a different judge. ***

Justice McDade articulated an additional, more fundamental flaw in the ‘test the waters’ doctrine, as follows:

‘It appears that an acknowledgment that one has "tipped his hand" is tantamount to a concession that he has prejudged the case and is, therefore, biased. It seems to me that such a finding ought to mandate a recusal rather than militating against it. As it now stands, if the judge has not formed an opinion and given the parties some inkling of what that opinion is, then a party is able to take a recusal as a matter of right; if, on the other hand, the judge has formed an opinion before the evidence has been presented and has tipped his hand to that effect, he must remain as the judge in the case. *** [T]his result makes no sense to me ***.’ (Emphases in original.) [ In re Estate of Gay , 353 Ill. App. 3d 341, 345-46, 288 Ill.Dec. 925, 818 N.E.2d 860 (2004) (McDade, J., specially concurring).]

***

*** [S]ection 2-1001(a)(2) of the Code is to be liberally construed, and if the motion ‘is timely, in proper form, and in compliance with the statute, the right to a change of venue in both civil and criminal cases is absolute.’ [ Rosewood Corp. v. Transamerica Insurance Co. , 57 Ill. 2d 247, 250, 311 N.E.2d 673 (1974).] *** Freedom from judicial prejudice was the only stated purpose of the statute, and it was not inconsistent with a liberal construction to limit the statute to that purpose. Now, however, prejudice is irrelevant to section 2-1001(a)(2), and parties are no longer limited to that single basis for seeking a substitution of judge. Under a liberal construction of the current statute, parties are free to move for a substitution of judge as of right for whatever reason they wish, provided their purpose is not to delay

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