Opinion
B195223
4-15-2008
In re Marriage of KENNETH and KAREN ZISKIN. KENNETH ZISKIN, Respondent, v. KAREN LANGSAM, Appellant.
Law Offices of Kevin S. McEwan and Kevin S. McEwan for Appellant. Kenneth A. Ziskin, in pro. per., for Respondent.
NOT TO BE PUBLISHED
Kenneth Ziskin filed a petition for dissolution of his marriage to Karen Ziskin on July 15, 2002. A judgment of dissolution as to status only was entered on September 10, 2002. Following a vigorously contested trial over property rights and spousal support, the trial court entered an 18-page judgment, supplemented by two additional pages. Karen appeals from the judgment.
We use the first names of the parties throughout this opinion to avoid confusion and not out of disrespect.
Karens appeal raises issues regarding the trial courts decision to set a fixed amount of time for trial. Karen argues the time limit was arbitrary, and because her trial time was exhausted before she was able to testify on her own behalf, there was a resulting denial of due process. Karen further contends the court could not exclude her testimony under Evidence Code section 352 on the ground that her testimony would have consumed an undue amount of time. We hold the trial court did not abuse its discretion in setting a time limit for trial, the trial court did not exclude Karens testimony under Evidence Code section 352, and Karens brief fails to establish prejudice that would warrant reversal of the judgment under Article VI, section 13, of the California Constitution.
The Trial Court Sets Time Limits on Trial
Trial commenced on April 21, 2005. The next day, the trial court stated there was a chambers conference held at the conclusion of the previous days proceedings at trial. After consulting with the attorneys, the court determined that it would fix a reasonable time limit for the length of trial. The court allotted 12 additional trial hours for Kenneth and 15 hours for Karen, because Kenneth had used more time up to that point. The court indicated either side could request more time if it were reasonable, but if multiple witnesses covered the same areas more time would not be granted. The court stated it had read the trial briefs, which were as detailed as it had seen and narrowly tailored the issues.
Counsel for Karen told the trial court he thought his case would take 27 hours, but he would try to cut it down. The court warned counsel in advance of the time schedule, "out of courtesy because I like both of you so much, I dont want to make it personal." The court explained that time would be charged against the party calling a witness for direct examination and any redirect; time would be charged to the party conducting cross-examination.
As trial progressed, the court repeatedly urged both counsel not to be repetitive. By May 19, 2005, trial was in its 12th day. The court advised counsel for Karen that he had already exceeded his allotted time for trial. Counsel for Karen was requesting an additional three hours. The court advised Karens counsel he was "getting into the minutia" and it was "not helping this court." The court granted an additional two hours for trial. The court urged counsel to "look at the big picture, figure out what the issues are and hit them."
The trial court observed that counsels estimate for Karens testimony had been 30 minutes, but it had now tripled. The court observed that the case had "to conclude at some point" and that it had "been excessively lenient with time."
Trial was held the next day, May 20, 2005, and then again on June 20, 2005. Despite the admonitions from the trial court, counsel for Karen continued to use excessive time on cross-examination of witnesses. After having consumed all of the additional time given by the court, counsel for Karen said he still had at least an additional 30 minutes of cross-examination of Kenneth and one hour for Karens testimony. The court noted that counsel had cross-examined Kenneth for close to six hours on an original three-hour estimate.
Ultimately, the trial court scheduled additional trial proceedings to June 29, 2005. On that date, "each side will have 90 additional minutes to do whatever they wish with it in total." The court later increased the additional time to 100 minutes per side.
On June 29, 2005, counsel for Karen began the day by telling the court he would finish with cross-examination of Kenneth and then call Karen, making every effort "to get the entire thing finished within the hundred minutes." After examination of Kenneth for 44 pages of reporters transcript, the court advised counsel for Karen that he only had 30 minutes remaining, including completing his cross-examination and calling Karen to testify. Despite the admonition, counsel conducted another 19 pages of examination of Kenneth, completely consuming his allotted period of time. Having used the original time allotted, plus the additional time afforded, the trial court ruled that Karens case was over. As a result, Karen did not testify at trial.
When Karens counsel complained, the trial court said it could not have been clearer and that there was no other way to control the proceedings other than to set time limits and to allow counsel to run his case the way counsel saw fit. Counsel had been warned all morning but had used all of his allotted time, although Kenneth had time remaining.
Counsel for Karen then made an offer of proof as to Karens testimony. The offer of proof indicated Karen would testify regarding the following subjects: money she transferred to Kenneth prior to and during marriage, including her life savings in April 1993; her two children and her expectation of support for them by Kenneth; Kenneths statement that she would have an interest in Kenneths law practice; the nature of Kenneths law practice and changes in its focus; Kenneths work on a theory that would greatly diminish the tax liability of the Mark Hughes estate and a potential success fee of either two or five percent of the tax savings; the signing and termination of certain leases; and the marital relationship ended in December rather than September 2001.
Kenneth then presented additional testimony on his own behalf, consuming 36 pages of reporters transcript on direct examination. The trial court allowed counsel for Karen to conduct additional cross examination for an additional six pages of reporters transcript.
DISCUSSION
Karen argues the trial court acted arbitrarily in fixing a limitation on the length of trial. She contends this arbitrary limit resulted in a denial of due process, as the time allotted to her was exhausted before she testified. She also contends the trial court abused its discretion by excluding her testimony under Evidence Code section 352 on the ground that it would consume an undue amount of time.
Setting a Limit on the Length of Trial
The trial courts "retain great power to prevent civil trials from taking more time than necessary" in order to avoid "wasting public resources on the back end (too much time) rather than the front (via a mistrial)." (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 683 (Blumenthal).) Our review of the record in this appeal leads to the conclusion that the trial court acted well within the bounds of reason in fixing the duration of trial.
The trial court conferred first with counsel in chambers before determining the length of trial. The court established the time limit near the commencement of trial, so that both sides had ample notice of what was expected. The court made clear it would grant additional time for good cause and, in fact, twice allowed Karen a substantial increase in time as trial progressed. The courts exceptional patience is well documented throughout the trial record.
We have independently reviewed the record even though, as set forth below, we have no duty to do so.
Karens reliance on Blumenthal is misplaced. In Blumenthal, the trial court did not give advance notice of a limitation on the length of trial, and it declared a mistrial when trial exceeded what the trial court deemed appropriate. (Blumenthal, supra, 137 Cal.App.4th at p. 684.) By contrast, the trial court here did not declare a mistrial, clearly established guidelines for the length of trial early in the proceedings, demonstrated flexibility in extending additional time, and did not deem Karens case concluded until after repeated warnings that no additional time would be awarded.
Despite the best efforts of the trial court, its warnings ultimately went unheeded by Karens counsel, who either did not take the warnings seriously or simply decided to forge ahead even if it meant Karen would not testify. In either event, Karen has not established any basis for a determination of judicial error at trial.
Evidence Code Section 352Karen argues the trial court abused its discretion by excluding her testimony pursuant to Evidence Code section 352 on the ground "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time . . . ." There is no merit to this argument, as our review of the record reveals that the trial court made no ruling under Evidence Code section 352, nor did it ever rule that Karens testimony was inadmissible.
Both sides were given a reasonable time period in which to complete trial. That time was substantially extended by the court. Counsel for Karen persisted in using her time on matters other than calling Karen as a witness. The trial court properly determined that counsel effectively made the decision to rest without Karens testimony. There is no basis, on this record, to attribute the absence of testimony by Karen to a ruling by the trial court under Evidence Code section 352.
The Requirement of a Miscarriage of Justice
Kenneth argues, in part, that Karens brief fails to establish a miscarriage of justice warranting reversal of the judgment under article VI, section 13 of the California Constitution and Evidence Code section 354. As explained below, we agree that Karen has made no showing of prejudice in her brief and the judgment therefore must be affirmed.
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) A miscarriage of justice results under California law "only when the court, `after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1480, fn. 4.)
"The trial courts error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a `miscarriage of justice—that is, that a different result would have been probable if the error had not occurred. ([Evid. Code,] § 354 [`[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice]; Code Civ. Proc., § 475 [`[n]o judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also by reason that such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed]; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; see City of Oakland v. Public Employees Retirement System (2002) 95 Cal.App.4th 29, 51-52, [prejudice will not be presumed; burden rests with party claiming error to demonstrate not only error, but also a resulting miscarriage of justice].)" (Zhou v. Unisource Worldwide, Inc., supra, 157 Cal.App.4th at p. 1480, fn. omitted; see also Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 276; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1289; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 ["we cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice"]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice"].)
"`The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. [Citation.] It is the appellant who bears the burden of overcoming that presumption. [Citation.]" (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 836.) It is not the job of an appellate court to act as counsel for appellant by furnishing a legal argument as to how the trial courts ruling was prejudicial. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Nor do we have the obligation to independently review the record on its own to determine if an error was prejudicial. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 871; City of Watsonville v. Corrigan (2007) 149 Cal.App.4th 1542, 1545, fn. 1; American Internat. Specialty Lines Ins. Co. v. Continental Casualty Ins. Co. (2006) 142 Cal.App.4th 1342, 1367, fn. 5; Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271.) Instead, the reviewing court "`is entitled to the assistance of counsel." (Haley v. Casa Del Rey Homeowners Assn., supra, 153 Cal.App.4th at p. 871.)
Karens opening brief provides no basis for reversal of the judgment. The brief advises this court that judgment was entered following a trial "assigning marital rights to the parties." This judgment "made a final determination as to the trail fees, the corporation, furniture and furnishings, jewelry and personal effects, vehicle, tax strategies, and the Vantage residence." The opening brief does not set forth in any manner how these issues were resolved at trial, or whether they were resolved in Kenneths or Karens favor. There is no explanation of how Karen is aggrieved by judgment—in other words, the brief does not mention what Karen sought that was not awarded to her.
There are no facts set forth in the opening brief. Our review of the record demonstrates that 20 witnesses testified at trial. In addition, there were over 100 exhibits received into evidence at trial. Despite the length of the trial record, which is comprised of 22 volumes of clerks transcript and 15 volumes of reporters transcript, Karens opening brief is totally bereft of any reference to testimony presented and evidence received.
Karens opening brief is limited to a discussion of time constraints set by the trial court for trial and the assertion that the trial court prematurely halted the presentation of evidence before Karen testified. The brief argues counsel for Karen made an offer of proof indicating Karen would testify to "the nature of [Kenneths] practice and contributions made regarding his corporation, and tax strategies." No explanation is provided as to how the content of that proposed testimony or how it relates to any issue resolved against Karen at trial.
Karens opening brief contains no discussion of prejudice under article VI, section 13 of the California Constitution. Furthermore, no argument is made that the exclusion of her testimony resulted in a miscarriage of justice under Evidence Code section 354.
Kenneths responding brief asserted that there were the three major issues at trial—trail fees, a success fee for a tax plan he devised for the estate of Mark Hughes, and whether there was a community property interest in two limited partnerships and a trust. According to Kenneth, Karen prevailed on two of the three issues.
No reply brief was filed by Karen in an attempt to counter Kenneths argument that she prevailed on two of the three major issues at trial, and that prejudice has not been established in order to overcome the presumption that the judgment is correct. Under these circumstances, we are compelled to affirm the judgment.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Kenneth Ziskin.
We concur:
TURNER, P. J.
ARMSTRONG, J.