Opinion
G054738
08-08-2018
R.B., Plaintiff and Appellant, v. JODIE P., Defendant and Respondent.
Corey Evan Parker for Plaintiff and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00798769) OPINION Appeal from an order of the Superior Court of Orange County, Timothy J. Stafford, Judge. Affirmed. Corey Evan Parker for Plaintiff and Appellant. No appearance by Respondent.
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R.B. (Mother) filed a civil harassment restraining order against her child's paternal grandmother, Jodie P. (Jodie). The court refused to issue a permanent restraining order. In this appeal, Mother asserts the court failed to properly exercise its discretion and was biased against her, violating her due process rights. We conclude these contentions lack merit, and we affirm the court's order.
FACTS
In addition to this civil harassment case, there has been an ongoing family law child custody dispute regarding Mother's son D.B. On our own motion, we took judicial notice of the documents filed in the family law case (Orange County Superior Court case No. 14P000601).
Mother began dating D.B.'s father (Father) in 2011, and the couple moved in with Mother's parents (Maternal Grandmother and Maternal Grandfather) due to a conflict with Father's parents (Jodie and Tom). D.B. was born in 2013.
Mother and Father ended their relationship in 2014. Father moved out of the maternal grandparents' home and resumed living with his parents. Soon thereafter, Mother and Father stipulated (and the court ordered), Mother would have sole legal and physical custody of D.B. Father initially had monitored visitation with D.B. on Tuesdays and Thursdays between 4:30 p.m. and 7:30 p.m., and Saturdays from 10 a.m. to 4 p.m.
After the couple separated, the two families experienced a highly contentious and acrimonious relationship, centered on the care and custody of D.B. For the past several years, D.B.'s parents and grandparents have frequently made appearances in civil and family law courts, seeking restraining orders and custody modifications. Complicating matters is Mother's and Father's reliance on their respective families for support and a place to live. Father has a brain tumor, autism, and attention deficit disorder. Mother has a learning disability and processing delay. She is unemployed and receives disability payments.
The court proceedings relevant to this case are as follows: In May 2014, Mother, Jodie, and Tom entered into a stipulation, agreeing to have no contact with each other and the paternal grandparents agreed to have no contact with D.B. (hereafter 2014 Stipulation). The stipulation stated the following: "Both parties agree to have no contact with each other either physically or electronically. Parties named in the petitioner's application are included. Both parties agree not to use third parties to contact each other. Both parties agree if incidental contact happens they will walk away [without] comment or gesture. Both parties agree not to enter the property or home of each other [without] permission."
In November 2014, Mother requested a restraining order because Jodi was violating the 2014 Stipulation. The court denied her request.
In April 2015, Jodie filed a notice of hearing to modify the 2014 Stipulation, requesting D.B. be removed from the "stay away" order to permit contact between D.B. and his grandparents. Jodie wanted a relationship with her grandson. In May 2015, the court denied the request.
On July 16, 2015, Mother filed a petition for a permanent civil harassment restraining order to protect herself and her child (D.B.) from Jodie. Mother submitted her declaration to support the petition, based primarily on the allegation Jodie violated the 2014 Stipulation by having contact with D.B.
In her declaration, Mother gave a detailed account of four incidents (occurring in May and June 2015) in which she personally saw Jodie and Tom violate the 2014 Stipulation. We need not recount the details of each allegation, but suffice it to say that on film Mother caught Jodie and Tom in the same location as D.B. on some of the days he was enjoying visits with Father. On one occasion, Mother contacted the police, and the officer explained that because there was not a restraining order he could only document the violation. Mother submitted a copy of the report to the court. On a different day, Father told Mother that Jodie and Tom were going to see D.B. and there was nothing she could do to stop him. Maternal Grandmother heard this conversation and witnessed these events.
At the end of her declaration, Mother stated she was on permanent disability and did not have the money to pay her attorney fees. She already paid $3,500 in connection with the restraining order and she anticipated she would owe an additional $1,500. The court set an order to show cause (OSC) for August 7, 2015. In the interim, the court issued a temporary restraining order, which included a 100-yard stay away order as to Jodie.
On the date of the hearing, Mother sought to continue the hearing because there was a family law hearing scheduled for the following week. The court reissued the temporary restraining order and rescheduled the hearing for August 21, 2015.
Our record contains a minute order of the August hearing. The court heard Mother and Jodie testify. Jodie moved to dismiss the petition, arguing the issue would be resolved by the family law court. Mother asked the court to grant a permanent restraining order. The court reissued the temporary restraining order and continued the matter to October 9, 2015. The court also ordered that the 2014 Stipulation would remain in full force and effect.
The court (Judge Timothy J. Stafford) held the hearing in October 2015 despite the absence of Mother's counsel, Bethanie L. Fanti. Mother explained her attorney was running late, but the court proceeded to hear the matter. Jodie's counsel, Michael Brennan, explained the family law trial judge (Judge Salvador Sarmiento) recently acknowledged he did not have authority to decide Mother's civil harassment petition because it involved a non-party. Brennan asked Judge Stafford to declare the 2014 Stipulation void because Mother "ha[d] mental issues and [was] on disability." When Mother interrupted to say, "I do not have mental issues," the court retorted, "Don't talk until I tell you to."
Brennan advised Judge Stafford that Jodie and Tom filed documents requesting restraining orders against Mother on the grounds she "stalks them" wearing a blond wig. Brennan stated Mother falsely believed Jodie wanted to kidnap D.B. Judge Stafford expressed sympathy towards Jodie and Tom and their desire to see their grandchild. He stated, "I'm a family man myself." Judge Stafford stated there was not much he could do because they signed the 2014 Stipulation.
Judge Stafford next told Mother it was her turn to speak. Mother stated she had proof Jodie and Tom violated the 2014 Stipulation. In addition to her parents' testimony, Fanti possessed videos documenting unauthorized contact with D.B.
Judge Stafford asked Jodie if she violated the 2014 Stipulation, and she replied the allegations were untrue. When Mother attempted to argue the point, the court stated, "I said not to talk unless I ask you to talk, all right?"
Judge Stafford next permitted Jodie to describe how Mother was stalking her by hiding in the car and chasing her with a video camera. Jodie stated Mother would wear a wig and follow her everywhere she went when it was Father's visitation days.
Judge Stafford asked Brennan about the status of the family law proceedings. Brennan stated the next hearing was November 19 and he opined Mother's remedy for any violation of the stipulation was to file a "contempt of court action." The court asked Jodie a second time if she violated the 2014 Stipulation. Jodie again denied any wrongdoing and repeated her stalking allegations against Mother. Tom stated it appeared Mother was under the impression Father brought D.B. to their house on his visitation days, but in reality Father took the child to a paternal uncle's house for visits.
When Judge Stafford stated it might dismiss the temporary restraining order, Mother pleaded with the court to keep the order because it protected D.B. from abuse. Judge Stafford asked Mother to explain how Jodie and Tom were "a danger" to D.B., and she replied, "[b]ecause they're willing to break the law in order to . . . ." The trial judge interrupted and asked how D.B. was being harmed. Mother replied, "Well, my son, when he comes back, he's very upset. Just yesterday he came . . ." Before she could finish her sentence, Judge Stafford again interrupted and stated he recalled her prior testimony about visitation with Father. He commented, "You said that he came back from [visits with Father and] [¶] . . . [¶] [h]e's agitated, not himself, so forth, and I asked you how old was your child and you said two years old, and my immediate thought is . . . that sounds like . . . 'terrible twos,' . . . . [Does y]our son have any marks or bruises?"
Mother stated D.B. returned from visits with little bruises on his legs. Additionally, she was alarmed by the number of times he had returned from visits "starving." Mother did not know why he was not eating when he was with Father. Mother again brought up the topic of Jodie violating the 2014 Stipulation. Judge Stafford stated, "[W]ell, I don't find that to be true." When Mother reminded the trial judge she had proof of the violations, Judge Stafford did not respond and instead asked Brennan what he wanted the court to do. He then granted Brennan's request to dismiss the petition and void the prior stipulation. Judge Stafford stated, "and then you'll be back in family law where you belong."
Judge Stafford ordered Brennan to prepare the order, and Brennan offered to include language "in the interest of justice" ordering Jodie and Tom to stay away from D.B. until after the November family law court hearing. Judge Stafford agreed with counsel that would be a good idea and he asked Brennan to report back about the results of the family law court hearing.
Before the family law hearing took place, Mother filed a motion for reconsideration, supported by Fanti's declaration and a stipulation signed by Judge John Laurence Flynn III from department L68 of the Lamoreaux Justice Center (LAMJC). Fanti explained why she was absent from the hearing and that the court should have been aware of her absence.
In her declaration, Fanti reminded Judge Stafford that she called his courtroom (department C66 in the Central Justice Center (CJC)) the day before the scheduled hearing on the civil harassment petition. Fanti spoke to department C66's bailiff because the court clerk, Debbie Lamm, was absent. Fanti explained she had to appear on a matter in the LAMJC first thing in the morning and she would come to C66 as soon as she could. In an abundance of caution, Fanti called department C66 the next morning and spoke with Lamm on the telephone and repeated the information she told the bailiff. Lamm indicated there was only one other matter on calendar and she should come to CJC as soon as she was finished at the LAMJC.
Fanti appeared in department L68, and despite her request for priority, Judge Flynn ordered that she remain in the courtroom. Judge Flynn assured her that he would call department C66 and let them know what was happening. Because Judge Flynn did not permit the use of electronic devices in his courtroom, Fanti did not immediately receive Mother's text messages stating Judge Stafford had started the hearing and Mother was attempting to represent herself. When she saw the messages, Fanti immediately called department C66 and the clerk confirmed the hearing had started. Judge Flynn had never contacted Judge Stafford. Fanti asked "Maya" in department L68 to call department C66 and explain what had happened. Maya called the courtroom and she was informed it was too late.
When Fanti arrived at the CJC, the matter had concluded. She declared Judge Stafford heard the matter even though Mother's counsel was ordered to remain in a different courtroom and she possessed all the evidence and documentation needed for the case. Fanti reminded Judge Stafford that he had "been advised in the past" about Mother's learning/speech impairments that made it difficult for her to process information and answer questions quickly. Fanti returned to department L68 and Judge Flynn agreed to sign a stipulation confirming Fanti's account of what transpired. The trial judge's stipulation was attached to the motion for reconsideration as exhibit A.
In the motion for reconsideration, Fanti requested the court hold an evidentiary hearing to allow her to present the evidence Mother was not able to present at the prior hearing. After considering the parties' arguments, the court granted the motion for reconsideration and scheduled an evidentiary hearing for March 18, 2016.
On that date, Judge Stafford did not hold a hearing. Instead, the trial judge told the parties that after spending several hours reviewing the case file he was going to make a ruling to hopefully "get us to a situation where the word 'family' might show up." He ordered Mother, Father, and both sets of grandparents to complete 10 reunification therapy sessions with Dr. Carolyn Cater Nishimoto. Judge Stafford stated the therapist would prepare a written report and submit it to the court 10 days before the next scheduled hearing on July 13, 2016.
Judge Stafford determined each party would "pay their equitable amount towards the [10] therapy sessions." He also reinstated the 2014 Stipulation.
Tom asked Judge Stafford to reconsider his ruling because the 2014 Stipulation rendered Father homeless during his visitation time. Tom explained that because Father resided with Jodie and Tom, he could never bring D.B. to the house. Fanti responded, "[A]s I stated in chambers, my client is concerned because of the alleged kidnapping attempts that they did." The trial judge determined the 2014 Stipulation would remain in effect.
At the July 13 hearing, Judge Stafford stated he was going to continue the matter until January 2017. He explained that during those six months, Jodie and Tom were ordered to stay away from D.B. and he was recommending the parties participate in the Evidence Code section 730 child custody evaluation that was going to be ordered by the family court. Judge Stafford stated he would give a copy of the ruling to Judge Sarmiento in the family law court.
On July 20, 2016, Judge Sarmiento ordered the custody evaluation. We took judicial notice of the report (filed November 1, 2016). The investigator reviewed the parties' allegations of child abuse, substance abuse, domestic violence, and parental incapacity. The investigator observed D.B. interact positively with both parents and his maternal grandparents.
Relevant to this appeal, the custody report included a summary of Nishimoto's report regarding her 12 counseling sessions with the family. She reported Father had difficulty communicating and used exaggeration and fabrication to solicit sympathy from others. The therapist observed Mother also had difficulty communicating and staying on track with the conversation. Nishimoto noted Mother and Father had "intellectual challenges and both rely on their parent's assistance to meet their daily needs." She concluded, "There is a history of distrust, suspicion and animosity between the families which is affecting the minor and causing problematic communication dynamics."
Although the actual report was not included in our record, we include a brief summary of the therapist's findings not for the truth of those statements but to better understand and provide some context to Judge Stafford's and Mother's counsel's statements regarding the report.
Nishimoto stated Jodie struggled with assuming "responsibility for her past unbecoming actions." Maternal Grandmother was defensive and unwilling to admit she may have contributed to any animosity between the families. Maternal Grandfather was described as being concerned and devoted. Nishimoto was unable to substantiate the allegations regarding violations of the 2014 Stipulation. She concluded the families lacked the ability to move forward for the best interests of D.B.
Nishimoto opined Mother and Maternal Grandmother believed Father and his parents were emotionally abusive and capable of harming D.B. She concluded, "This mindset maintains a toxic environment for the child." She indicated Jodie and Tom reacted "with a total loss of decorum" when they were confronted with a lack of control over the situation. Nishimoto noted these actions created far-reaching legal consequences for them and Jodie required "ongoing, consistent, professional mental health counseling to learn appropriate coping skills."
Nishimoto made several comments about Father. She stated Father, due to psychological and intellectual limitations, had exaggerated the amount of trauma experienced in his childhood to elicit sympathy and acceptance from Mother's family. She stated Father's accusations of physical and psychological abuse during childhood could not be substantiated, but his comments served to fuel Mother's family's negative perception of him and his parents. Nishimoto questioned if Father's brain tumor may have affected his emotional and intellectual abilities. The therapist concluded Father had "fallen short of making good decisions during his custodial time and placed [D.B.] at risk." Nishimoto recommended Father have a "seasoned, third-party adult" accompany him during visits to "offer parenting mentorship." In addition, she recommend Father continue seeking treatment from a neurologist.
Judge Stafford held the hearing on January 25, 2017, and asked if the parties could reach any settlement agreement. Mother, who was being represented by new counsel, Brain S. Yin, indicated the parties still disagreed about whether Jodie should have contact with D.B. Yin argued there should be an evidentiary hearing on the petition.
Judge Stafford began the hearing by reading facts from a report, like those contained in the therapist's report, describing Mother's disability, lack of education, unemployment status, and her reliance on disability payments. The court stated Mother resided with her parents and her boyfriend and did counsel think this was "a little overwhelming for her?" Yin stated there was no reason to believe Mother was deficient as a parent. She had sole physical custody of D.B. for the child's entire life. He reminded the trial judge that the focus of the hearing was not on Mother, who was the petitioner, but rather on Jodie and Tom's misconduct. When Judge Stafford asked counsel what he wanted, Yen requested he grant the civil harassment order.
Brennan stated the family law court ordered a child custody investigation report and would make a ruling in March 2017. He opined that because Father lived with his parents, Judge Stafford should not forbid contact between D.B. and Father's parents. Brennan noted Mother's multiple attempts to get a restraining orders against Father in family law court had failed.
The court replied, "I'm not going to give one in this case, I'm just not going to do it. What I've read, and I spent a lot of time, and I have five of my own and a lot of grandchildren, and seeing how parents and grandparents are supposed to react and treat their children and their grandchildren, I don't see it here at all. And I'm particularly focusing on the petitioner in this case. So the petition is denied."
Yin renewed his request for an evidentiary hearing on the petition. He stated, "For the record, I don't believe a full proper hearing has ever been done." The court asked, "On what?" Yin explained there was never a hearing held on the petition with the benefit of counsel and Mother's evidence. The court asked how long the hearing would take and what witnesses would be called. Brennan objected, stating the family law judge would be reviewing the custody evaluation report soon. In addition, Brennan asserted that if Jodie wanted to kidnap the child she would have done so sometime within the past year. Yin stated the issue was not what could have happened but whether there was evidence to support the allegations raised in the petition. Judge Stafford agreed to hold an evidentiary hearing.
Yin called Mother to the stand to testify. She discussed her current "torturous" relationship with Jodie and Tom. She described a violent incident that took place in 2012 when Jodie hit her. She also saw Jodie hit Maternal Grandmother. She read a text message Father sent to Jodie that stated the following: "'Mom, you're crazy, and my son is not safe around you, and you tried to run me over twice and kill me in one night. You need mental help. I love [Mother] and my son, and nobody can take that away from me like you tried to when you mentioned incest [was] the reason why [Mother] is pregnant and what you said was messed up, and that's why you need mental help.'" Mother described the near-death experience referred to in Father's text message. She explained that in December 2012 Jodi attempted to harm Father by running him over with a car.
Mother read an e-mail Jodie sent in 2013. "'He is my baby. My baby [D.B.] is my baby. Love you, son. Mom and Dad. Now I'm going to show that bitch whose baby it is. My son, he belongs to me, not [Mother]. Love you very much, son. Mom and Dad.'"
Finally, Mother described an incident she believed was an attempted kidnapping. In April 2014, Father arrived for a visit with D.B. and insisted the child come outside with him. Mother objected and required that he visit with D.B. inside the house. She saw Father's car outside as well as Tom's car with an infant car seat. Jodie texted Father the following message: "'Have her bring the baby outside to you.'" Mother stated Father later admitted the planned kidnapping that day failed because he thought there were too many people in her house.
Mother indicated that in July 2014, after the parties signed the 2014 Stipulation, she went to the park to monitor Father's visit with D.B. She stated things got "bad" and her mother called the police. Mother stated Jodie and Tom came to the park, violating the stipulation.
Mother showed Judge Stafford a photograph taken in March 2015. It depicted Jodie holding a camera in her hand near Father and D.B., who were sitting in a car. Yin played a video taken in June 2015, which showed Jodie and Tom being dropped off at their house by Father, who had D.B. in the car. Mother testified about the video and what she personally witnessed. Mother testified the conflict with Jodie and Tom had made her feel stressed and unable to sleep because she was worried about her son. She stated, "I know he comes back and he tells me things. And then I'm even more worried when he goes with his dad. And he doesn't even want to go with his dad. He fights me." Mother stated she suffered through her pregnancy and for the past three years due to Jodie. She felt Jodie was harming D.B. because her son reported Jodie hit him. Mother saw a bruise and wanted it all to stop. D.B. told Mother he saw Jodie and Tom during visits with Father. On cross-examination, Mother denied wearing wigs or disguising herself to stalk Jodie and Tom.
Yin stated he wanted to call two additional witnesses. Brennan moved to dismiss the petition on the grounds Mother failed to offer credible evidence there was an act of domestic violence. Yin responded Mother was not seeking a domestic violence restraining order, and a civil harassment restraining order required only an act of violence. He argued there was evidence of violence and an attempted kidnapping. He argued Jodie's violations of the 2014 Stipulation "further buttress the reasons behind [Mother's] thought that she can't trust [Jodie and Tom] to not have untoward actions towards [D.B.] or herself."
The court stated it was concerned with "the overall picture." It referred to the therapist's report about how Mother and Father's relationship evolved. The court questioned Mother about where her current boyfriend lived and asked why Jodie should not be allowed to see her grandson. Mother stated the report was incorrect and she did not currently live with her boyfriend. She expressed fear about having Jodie visit D.B. She stated D.B. was agitated after visits with Father and he was hitting other children at school. Mother believed D.B.'s misconduct was caused by witnessing what happened when Jodie got angry.
The court stated it would deny Brennan's motion to dismiss. He referred to information in the report regarding Jodie's and Tom's past aggressive behavior and poor coping skills.
Counsel called Mother's boyfriend, Nicolai Marvin to testify. Marvin met Mother in 2015 and knew she had filed a restraining order. Marvin claimed he lived with his parents, not with Mother. He was present when D.B. indicated Jodie injured him. He heard D.B. say Jodie caused the painful bruise on his arm. At the time, Marvin did not notice the bruise on D.B.'s forehead.
Yin stated he had no further witnesses. Brennan renewed his motion to dismiss. After a short recess, Judge Stafford denied the petition for a civil harassment restraining order. He made a lengthy statement about the case on the record. He reasoned, "I spent a lot of time on this file. I've gone through it. I find no evidence of abuse. I find no evidence of harassment. I hear allegations. I hear people on both sides, instead of caring for a young child, bickering about who said what and when they said it." The trial judge said he found some inconsistencies in Mother's testimony.
Judge Stafford noted it was initially going to continue the matter until after the family court made its custody ruling, however, it changed its mind. "In going through my rules and regulations, I don't think I can prevent the grandparents from seeing their grandchild. But I want to make it very, very clear, if either party comes back in here and does not fulfill their obligations as I'm dictating—I talked to you about violating the court order and sanctions." The trial judge added it did not find Marvin's testimony to be credible.
Yin asked the court to reconsider the evidence regarding violent acts against Mother that were also mentioned in the therapist's report. With respect to the trial court's mandate that its orders must be followed, Yin noted Jodie clearly violated the court order mandating she stay away from D.B. The court replied violation of the 2014 Stipulation was unproven "in the eyes of the court."
DISCUSSION
I. Abuse of Discretion
Mother asserts the trial judge abused his discretion because his ruling was based on an erroneous legal assumption. She focuses on Judge Stafford's statement he looked at "rules and regulations" before concluding, "I don't think I can prevent the grandparents from seeing their grandchild." Mother argues she is unaware of any "rules or regulations" concerning a grandparent's legal entitlement to have access to grandchildren. She concludes the trial judge relied on an apparent misunderstanding of the law. Mother interprets Judge Stafford's comment as providing all the proof needed to show he erroneously believed he had "no discretion to grant the restraining order." Mother discusses legal authority holding that when a trial court erroneously assumes it has no discretion to make a decision the denial of the restraining order must be reversed. (Citing Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90-92.) We conclude she misconstrues the record. A. General Legal Principles
Code of Civil Procedure section 527.6 was enacted "'to protect the individual's right to pursue safety, happiness and privacy as guaranteed by the California Constitution.' [Citations.]" (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) "It does so by providing expedited injunctive relief to victims of harassment. [Citation.]" (Ibid.)
All further statutory references are the Code of Civil Procedure, unless otherwise indicated.
Not all uncivil behavior creates legal justification for an injunction. Section 527.6, subdivision (a), states, in pertinent part, the following: "A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section."
Harassment is defined as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." (§ 527.6, subd. (b).)
"Unlawful violence" means any assault, battery or stalking (§ 527.6, subd. (b)(7); Pen. Code, § 646.9). "Credible threat of violence" is defined as "a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose." (§ 527.6, subd. (b)(2).) "'Course of conduct' is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or e[-]mail." (§ 527.6, subd. (b)(1).)
Consistent with principles governing injunctions generally, an injunction under section 527.6 "is authorized only when it appears that wrongful acts are likely to recur. [Citation.]" (Russell v. Douvan (2003) 112 Cal.App.4th 399, 402.) Accordingly, a single act of violence or harassment, standing alone, generally does not require the issuance of an injunction, it "may support a conclusion that future harm is highly probable." (Id. at p. 404.)
The grant or denial of a civil harassment petition brought pursuant to section 527.6 involves no balancing. "At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment." (§ 527.6, subd. (i).) Thus, the sole issue is whether there is clear and convincing evidence that harassment has occurred. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 664.)
"We review the trial court's decision to grant the restraining order for substantial evidence. [Citation.] 'The appropriate test on appeal is whether the findings (express and implied) that support the trial court's entry of the restraining order are justified by substantial evidence in the record. [Citation.] But whether the facts, when construed most favorably in [the petitioner's] favor, are legally sufficient to constitute civil harassment under section 527.6, and whether the restraining order passes constitutional muster, are questions of law subject to de novo review.' [Citation.]" (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [where there is substantial evidence to support trial court's decision we must affirm despite contrary evidence].) B. Analysis
Mother's abuse of discretion argument is not premised on the assertion there is insufficient evidence to support Judge Stafford's ruling. Rather, Mother focuses on a single statement to support her contention Judge Stafford mistakenly believed he must follow a legal rule favoring the maintenance of familial ties. The record does not support this conclusion. When Judge Stafford's comment is read in the context of his other statements, it is clear he understood his duty was to examine the evidence presented by Mother to determine if there was clear and convincing evidence of the necessary factors defined in section 527.6 (course of conduct, unlawful violence, credible threat of violence, and harassment).
After Mother presented her evidence at the hearing, Judge Stafford made a lengthy announcement on the record. His oration spans two pages of the reporter's transcript. Judge Stafford began by stating he had looked through his notes of the case. He told the parties, "I am bound by the rules of clear and convincing evidence, proof. And certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means a party must persuade the court that it is highly probably that the fact is true." (Italics added.) This statement is a correct interpretation of the court's duty under section 527.6.
Before announcing a ruling, Judge Stafford repeated he had spent a long time reviewing the evidence presented. He made the following legal conclusions, mentioning many of the factors required for a civil harassment order defined in section 527.6: "I find no evidence of abuse. I find no evidence of harassment. I hear allegations. I hear people on both sides. Instead of caring for a young child, bickering about who said what and when they said it." Judge Stafford also spent some time discussing Mother's evidence. He concluded there were inconsistencies in Mother's assertions and he determined there were credibility issues with Marvin's testimony.
Judge Stafford then made the statement, which forms the basis of Mother's argument on appeal. Judge Stafford again mentioned being constrained by "rules and regulations" and concluded, "I don't think I can prevent the grandparents from seeing their grandchild." The court then stated it was going to deny the request for a restraining order. He advised the parties to use their energy to love and care for D.B. because "both parties are dealing with difficult-to-deal-with parents . . . ."
We conclude that when read in context, the referred to "rules and regulations" describe the same legal authority Judge Stafford mentioned in the beginning of his lengthy ruling. Section 527.6 contains several "rules" applicable in this case. Subdivision (i) mandates a trial judge "shall receive any testimony that is relevant" and he may "make an independent inquiry" but must "find[] by clear and convincing evidence that unlawful harassment exists" before issuing an order prohibiting the harassment. Judge Stafford understood he was bound by the rules of clear and convincing evidence and this rule placed a heavy evidentiary burden on the petitioner (Mother).
We found nothing in Judge Stafford's pronouncement suggesting he considered any legal rules or mandates other than those outlined in section 527.6. If he believed there was a bright-line legal rule that required the preservation of familial ties, there would have been no need to evaluate and weigh Mother's evidence of abuse and harassment. Judge Stafford's statement he could not grant the order and "prevent the grandparents from seeing their grandchild" was simply an informal, conversational way of ruling there was insufficient evidence to support the injunction.
After reviewing the entirety of Judge Stafford's lengthy ruling, we can reasonably infer he properly understood the requirements set forth in section 527.6, and the rule requiring clear and convincing evidence. "The statute does not require the court to make specific findings" but rather, the denial "of the injunction itself necessarily implies that the trial court found that [respondents did not] knowingly and willfully engage[] in a course of conduct that seriously alarmed, annoyed or harassed [the petitioner], and that [the petitioner did not] actually suffer substantial emotional distress." (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1112.)
II. Court Bias
Mother maintains the trial judge's conduct in this case "evidences actual bias against [her] . . . demonstrated by the court depriv[ing] [her] of due process as the court was far from [a] neutral arbitrator in the adjudication of her petition." Mother focuses on the following conduct: (1) the court made a ruling against her before the final evidentiary hearing; (2) the court ruled against Mother "without affording her the opportunity to present evidence"; (3) the court "explicitly expressed empathy" for Jodie and Tom, "as a fellow grandparent"; (4) the court required counsel to make essentially a showing of good cause before it would grant the evidentiary hearing; (5) the court's overall treatment of Mother demonstrated a "pervasive gender stereotype" that Mothers who make child abuse allegations are hysterical or vindictive; (6) the court focused on Mother's mental state and perceived deficiencies which were issues irrelevant to deciding the petition; (7) the court equated Mother's learning disability with mental illness; (8) the court's questions to Mother strongly implied it believed her fears of abuse were irrational; and (9) the court's gender bias was also evidenced by its mistreatment of her at the first hearing when her counsel was absent. To summarize, Mother maintains Judge Stafford displayed gender bias against her, as well as grandparent status favoritism towards Jodie, resulting in a denial of due process.
"The operation of the due process clause in the realm of judicial impartiality . . . is primarily to protect the individual's right to a fair trial." (People v. Freeman (2010) 47 Cal.4th 993, 1000 (Freeman).) "The role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the challenging party] a fair, as opposed to a perfect, trial. [Citation.]' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 347.) The United State Supreme Court has "made it abundantly clear that the due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found. [Citation.] Less extreme cases—including those that involve the mere appearance, but not the probability, of bias—should be resolved under more expansive disqualification statutes and codes of judicial conduct. [Citation.]" (Freeman, supra, 47 Cal.4th at p. 1005.)
"At the threshold, we conclude [Mother's] failure to object on [the ground of judicial bias] forfeited the claim for appeal. As a general rule, a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review. [Citations.] Although [Mother] argues [s]he may be excused from this general rule because an objection would have been futile, the circumstances in no way suggest an objection and request to have the jury admonished would have found an unsympathetic jurist." (People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) To the contrary, the record reflects Judge Stafford remedied other mistakes that were brought to his attention. For example, he granted Mother's motion for reconsideration after being alerted to the reasons for Mother's counsel's absence. And, at the final hearing, Judge Stafford attempted to rule on the matter without an evidentiary hearing, but after counsel pointed out this omission, Judge Stafford corrected the error and permitted Mother's counsel to call as many witnesses as he wished. Here, an objection raising judicial bias would have alerted the trial court to Mother's concerns and given the court an opportunity to respond. (People v. Houston (2012) 54 Cal.4th 1186, 1220.) This is not a case where the trial court was overly hostile or made extensive, numerous disparaging remarks such that an objection would have been pointless. (Ibid.; People v. Williams (2017) 7 Cal.App.5th 644, 693.) Our Supreme Court has repeatedly affirmed that a failure to raise the issue of judicial bias during the trial proceedings results in the forfeiture of such a claim on appeal. (See People v. Farley (2009) 46 Cal.4th 1053, 1110; People v. Samuels (2005) 36 Cal.4th 96, 114; People v. Seaton (2001) 26 Cal.4th 598, 698.) Mother forfeited her judicial bias claims by failing to raise them at the hearing.
Mother cites Catchpole v. Brannon (1995) 36 Cal.App.4th 237 (Catchpole), for the principle that certain claims of judicial gender bias cannot be forfeited because the issue involves one of public interest and due administration of justice. Catchpole involved a judge whose gender bias against the plaintiff in a sexual harassment case was exposed by the totality of the judge's blatant, pervasive, and extreme gender biased comments made throughout an eight-day trial. (Id. at p. 249.) The court reasoned there was no forfeiture because any lawyer would be unwilling to confront a judge with an accusation of gender bias. (Id. at p. 244.) We conclude Catchpole's rationale is inapposite here. The substance and high degree of blatant gender bias in that case bears no resemblance to the allegations of bias against Judge Stafford here. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 583 [example of gender bias case distinguishing Catchpole].) In any event, we have reviewed the record and even if the gender bias claim was not forfeited we conclude there was no substance to the accusation.
Disapproved on other grounds in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4 [disagreed with Catchpole's holding mere "appearance of bias" is sufficient to justify reversal of decision on due process grounds].). --------
The gravamen of Mother's complaint on appeal is that Judge Stafford held a pervasive gender stereotype. Specifically, Judge Stafford had a bias against the credibility of women making child abuse allegations, "'characteriz[ing] them as hysterical or vindictive, even when evidence corroborates the claim.' [Citation.]" Mother maintains this bias manifested in Judge Stafford's overall demeanor and a handful of questions he posed about Mother's mental competence and ability to be a good parent. Mother complains Judge Stafford referred to her learning disability several times when the issue was irrelevant to her petition. The contention lacks merit for several reasons.
First, we note a trial judge is permitted to make statements that are simply opinions based on an assessment of the evidence. (Nevarez v. Tonna (2014) 227 Cal. App.4th 774, 786 [mere expressions of opinion, based on actual observation of evidence in courtroom, do not demonstrate judicial bias].) Judge Stafford's statements regarding Mother's mental abilities candidly repeated information gathered from the therapist's report and Mother's counsel's representations to the court. For example, Fanti declared, in support of a motion for reconsideration, that Judge Stafford "ha[d] been advised in the past" about Mother's learning impairments that made it difficult for her to process information. The therapist reported both parents had intellectual challenges, and Mother had difficulty communicating and staying on track. There was no dispute Mother received state disability income and she relied on her parents for support and a place to live. In light of this evidence, it cannot be said the court's statement originated from a negative gender stereotype rather than from the facts presented.
Second, we recognize that generally a petitioner's learning disabilities would not be relevant to a civil harassment petition. However, it cannot be overlooked that the parties in this case were embroiled in a protracted child custody dispute having overlapping issues raised in the petition before Judge Stafford. The family law judge and Judge Stafford discussed the case and notified each other of developments. Both judges understood Father's ability to have prolonged physical custody of his son would be impacted by an injunction forbidding his parents from having contact with their grandchild. Judge Sarmiento delayed ruling on child custody until after the civil harassment proceedings concluded. That Judge Stafford questioned Mother's parenting skills in this case was nothing more than commentary related to the tangential custody dispute and based on the evidence contained in reports. When viewed in context, the commentary does not indicate the trial judge secretly harbored an implicit bias against women seeking child custody.
Mother argues gender bias was also demonstrated when Judge Stafford questioned her about why she believed D.B. was being abused by Jodie and Tom. She asserts Judge Stafford's questioning was hostile and strongly implied her fears were irrational. Mother maintains Judge Stafford attempted to "influence or intimidate" her by asking if she had ever taken D.B. to the emergency room for his injuries. She complains it was inappropriate for Judge Stafford to question Mother's testimony D.B.'s aggression was due to witnessing Jodie's temper/anger as opposed to Mother's anger. Mother concludes this was a "thinly veiled accusation[]" she was mentally ill or a bad mother.
Mother's perception Judge Stafford believed her fears were irrational all related to his cross-examination questioning not any other commentary or opinions expressed when ruling on the petition. This is a distinction that makes a difference. Mother fails to appreciate that in this case it was appropriate for the trial judge to partake in vigorous cross-examination. Section 527.6, subdivision (i), mandates a trial judge "shall receive any testimony that is relevant" and he may "make an independent inquiry." (Italics added.) A judge may elicit evidence unfavorable to a party so long as the judge's questions are designed to fairly and impartially establish the truth. (People v. Rigney (1961) 55 Cal.2d 236, 243-244.) Moreover, it cannot be overlooked that this was an evidentiary hearing, not a jury trial, where a trial judge must take "[e]xtreme care" questioning witnesses "so as not to shift the balance of the case either for or against a party, merely because of the manner in which the court participates in the presentation of evidence." (People v. Handcock (1983) 145 Cal.App.3d Supp. 25, 30.) Because there was no jury present, Judge Stafford had more freedom in his cross-examination tactics.
We acknowledge the record shows Judge Stafford intensely sought to uncover the basis for Mother's accusation Jodie was physically abusive. We conclude this thorny line of questioning was reasonable given the therapist's report Father manipulated Mother by fabricating stories of abuse by his parents that could not be substantiated. Moreover, there was evidence Mother was being negatively influenced by Maternal Grandmother's opinion Jodie was capable of abusing Father and D.B. Mother's testimony of abuse related to bruises she found on the toddler after visits with Father, not necessarily due to contact with Jodie. Judge Stafford had a duty to determine if there was a credible threat of violence/harassment as defined by section 527.6 before ordering an injunction. When the trial court sits as a trier of fact, he was called upon to determine if a witness is to be believed or not—that is the nature of factfinding. (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.) Contrary to Mother's assertion, the cross-examination in this case was not persuasive evidence of improper intimidation or false gender biased accusations.
Mother's final example of gender bias focuses on Judge Stafford's conduct and comments during the October 9, 2015, hearing, conducted without Mother's counsel. Mother argues gender bias was shown by Judge Stafford's decision to void the 2014 Stipulation, because he lacked legal authority to make that ruling. She asserts, without citing any supporting legal authority, the trial judge could not void the stipulation because the parties agreed to it in a different case. She concludes, "In light of the comments and tenor of the court, the only explanation [for the ruling] is bias against [Mother]."
We agree Judge Stafford's action, comments, and tenor during the hearing suggested impatience and frustration with the difficult circumstances of the case involving two families essentially at war. Although these traits are regrettable in a judge, they do not necessarily originate from gender bias (or any other kind of bias). Judge Stafford made several comments indicating he believed the entire matter should be decided in a family law court, not through civil restraining orders. In every hearing, he expressed a strong belief that family disputes (especially ones involving such hostility between the parties) should be resolved and addressed elsewhere. In summary, the record reflects Judge Stafford's intent was to quickly dispose of the matter so that D.B.'s future could be properly dealt with in a different courtroom. Judges are not infallible and sometimes make incorrect legal decisions for no reason other than being mistaken about the law. "'[A] trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review. [Citations.]'" (People v. Pearson (2013) 56 Cal.4th 393, 447.)
We understand why Mother may have perceived Judge Stafford's actions and expressions of irritation during the hearing as personal attacks. Mother, finding herself unexpectedly in the position of a self-represented litigant, was facing an emotionally charged and highly contested proceeding, and she did not possess any of the evidence she needed. She was understandably upset. However, a trial court has the discretion to limit the introduction of evidence and argument, because the court ultimately has a duty to control the proceedings. (People v. Snow (2003) 30 Cal.4th 43, 78.) Hearings with self-represented litigants sometimes require more control and judicial oversight due to the litigants' lack of familiarity with court rules and procedures. "'[O]ur role . . . is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.' [Citation.]" (Ibid.) And while some of Judge Stafford's conduct and comments may not have met the gold standard, it cannot be said Mother was prejudiced. The court later granted her motion for reconsideration and she was given a second opportunity for a hearing with the benefit of her evidence and the assistance of counsel.
In conclusion, while the record contains insufficient facts to support a claim of judicial gender bias, we caution the trial judge to be more thoughtful in the future with his comments about his personal life. Judge Stafford's commentary about being "a family man" and a devoted grandparent, and his subjective opinion about how families "should behave" were irrelevant and distracting digressions from the task at hand. Such statements do not inspire public trust and confidence in our courts.
DISPOSITION
The order is affirmed. Because respondent did not make an appearance on appeal, she will not recover any costs.
O'LEARY, P. J. WE CONCUR: MOORE, J. FYBEL, J.