Opinion
H044352
11-15-2018
MILAE WEISER, Plaintiff and Respondent, v. GABRIEL CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. PA015721)
Appellant Gabriel Clark challenges the trial court's child custody order and its imposition of sanctions under Family Code section 271. He contends that reversal is required because the trial court (1) was biased against him and deprived him of due process and a fair hearing, (2) denied him the right to present evidence, (3) denied his request for a continuance, (4) abused its discretion in adopting its custody order, (5) improperly relied on the input of two of Clark's daughters, and (6) improperly required Clark to pay attorney's fees to respondent Milae Weiser's attorney under Family Code section 271.
"Courts must earn the public trust" by "employ[ing] fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life . . . ." (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368.) We conclude that the trial court's orders must be reversed because the trial judge's bias and prejudgment deprived Clark of a fair hearing before an impartial adjudicator. Consequently, we reverse and remand for a new hearing.
I. Background
Weiser and Clark are the parents of three minor daughters and two adult daughters. In August 2015, Weiser filed a parentage petition and sought child custody and visitation orders as to the minor daughters, M., Y., and E. She asked the court to award her sole legal and physical custody and to grant Clark visitation every weekend from Friday afternoon to Sunday evening.
Clark responded in April 2016 and sought joint legal and physical custody. He proposed a parenting schedule under which the three girls would spend alternate weeks with each parent. Clark also asked the court to order a "Right of First Refusal" because Weiser was entrusting the care of their girls to their two adult daughters and Weiser's sister at times when Clark was available to care for the girls.
At an April 2016 hearing, the trial court issued a paternity judgment and ordered that Clark be permitted to take the children to school each day. The parties were referred to Family Court Services Mediation for a child custody report, and an appointment was scheduled for June 9, with the report due June 23. The next hearing was scheduled for July 11.
The same trial judge heard all of the trial court proceedings.
On May 3, 2016, Weiser filed a request for the girls to be interviewed by Family Court Services (FCS). Weiser asserted that Clark had been "verbally abusive" toward his eldest daughter and would become "very angry" if she "touches him or his food" when "she is on her menstrual period." Weiser claimed that M. and Y. did not want to go to Clark's home. The court granted her request that the girls be interviewed by FCS at the previously scheduled June 9 appointment.
Weiser also declared that Clark lacked a driver's license and owed her $66,202 in child support.
Weiser, Clark, M., and Y. were interviewed by FCS on June 9, 2016. The subsequent FCS report recounted Weiser's assertions that the girls did not want to visit Clark, that he did not "properly" supervise them at his home, and that he placed them in a "parental role" and required them to "take care of the animals" at his home. Weiser also claimed that Clark was "putting his religious practices on the children such as the girls having to wash and massage people's feet, and the girls not being allowed to touch, nor prepare food for [Clark] when they have their menstrual cycle because he fears getting sick." Clark denied these allegations. The girls told FCS that they felt pressure from Clark to "be productive" when they were at his home, and that they believed that he did not think men and women were equals. They corroborated Weiser's allegations, and M. complained about her "underwear being counted and checked" when she was at Clark's home. However, the girls told FCS that they "do want to spend time with" Clark, but they do not want "to increase the time, nor do they want the week on/week off schedule." M. suggested that every other week they spend from Friday through Wednesday morning with Clark. The FCS report mentioned a "letter" from adult daughter K. in which K. alleged "emotional and physical abuse" by Clark. K. claimed that "she and her older sister was [sic] subjected to name calling, working long hours, separate eating spaces, and being locked in their rooms, as well as being made to feel disgusting for having a period."
FCS recommended joint legal and physical custody with Clark having visitation with the children alternate weeks from Friday after school to Wednesday morning, as M. had suggested. "The alternate long weekend plan will allow Father to spend time with the children during the weekdays and be a part of their daily routine, while allowing Mother to have the children some weekends. This will allow both parents to spend time with the children each week. The parents are encouraged to be flexible based on the ages and the desires of the children." FCS also recommended: "a. Father shall not impose his religious beliefs and practices on the children without their permission i.e., feet washing, massaging, etc. [¶] b. The children shall have the option whether or not to visit Father during their monthly cycle. [¶] c. Father and his partner shall not check, nor count the children's underwear when visiting."
On July 11, 2016, the court amended and adopted FCS's recommendations as temporary custody orders. The sole amendment was to item "b." of FCS's recommendations. The amended version read: "b. The children shall have the option whether or not to visit Father at all times." The court scheduled an evidentiary hearing for the afternoon of August 22 with a "discovery cut off" of August 8 and witness lists to be exchanged by August 15. The court also ordered that the children be interviewed by the court on the morning of August 22.
Clark's trial counsel sent form and special interrogatories, most of which concerned issues other than child custody, to Weiser on July 15, 2016 and scheduled depositions of Weiser and K. The interrogatories that did concern child custody issues sought information about who cared for the children when Weiser was at work, the alleged "abuse" of their daughters by Clark, and the foot washing and menstruation-related issues addressed in the FCS report. On August 12, Clark's trial counsel made an ex parte request for a continuance. He asked the court to continue the evidentiary hearing to any time after November 15 and schedule it for a full day, rather than a half-day to give him time for discovery. Clark's trial counsel noted that he had not been able to obtain the "letter" referenced in the FCS report. He also asserted that Weiser had allowed Clark no visits with the girls since the July 11 order. Clark's declaration, accompanying the request, stated that Weiser consistently told him that the girls did not want to see him. He asked the court to allow him time to produce evidence and witnesses to prove the untruth of the allegations that had been considered by FCS.
Weiser opposed Clark's continuance request. She asked the court to impose $5,000 in sanctions under Family Code section 271 on Clark for his excessive discovery requests. The court denied Clark's request and refused to set his continuance request for a hearing. Weiser did not respond to any of Clark's discovery requests.
On August 18, 2016, Clark's trial counsel filed a trial brief. He asserted that Clark would put on witnesses to prove that he did not have any religious beliefs or cultural practices such as those described in the allegations to FCS and no "feet washing" had ever occurred, though the girls had voluntarily massaged the arthritic feet of an elderly woman who was visiting them in 2013. The "counting underwear" claim would be shown to be a misleading allegation apparently based on an incident in May 2016 when M. was found with "inappropriate lacy thong underwear" and Clark's girlfriend pointed out that M. had numerous pairs of appropriate underwear. Clark's trial brief identified more than a dozen witnesses whom he intended to call at the evidentiary hearing. Clark submitted a declaration expressing concern about the court interviewing the girls after they had spent the last six weeks continuously in Weiser's care. He believed that Weiser was coaching and unduly influencing the girls against him.
At the beginning of the August 22, 2016 evidentiary hearing, the trial court said it would allow "everyone an opportunity to be heard about the need for a continuance." Clark's trial counsel told the court that he "needed to have interrogatories" and needed the "documents that the mediator used." The court responded: "I think there's a letter and I haven't seen it either. Ms. Williams [(the FCS mediator)] saw it because somebody brought it to the mediation." The court noted that it had interviewed Y. and M. "this morning" and that "information from the older sisters who are 21 now is interesting perhaps as corroboration of the perception that the young girls have, but my decision wouldn't be based on that, so I don't know why you need to do additional discovery that you haven't been able to do yet. [¶] You could have subpoenaed the 21-year-olds and had their depositions taken because they're not parties to this case. You could have subpoenaed Ms. Weiser to have her deposition taken." Clark's trial counsel responded: "We did that." The trial court replied: "Where do depositions factor into a decision really as to whether or not the 11-year-old and the 13-year-old should be permitted to decide when they want to visit their dad if they have strong feelings about dad, which in fact they do?"
The parties were plainly not present during that "interview," and no record was made of the statements by the girls. "No testimony of a child may be received without such testimony being heard on the record or in the presence of the parties. This requirement may not be waived by stipulation." (Cal. Rules of Court, rule 5.250(d)(6).) The trial court's failure to comply with this rule meant that Clark was placed in the untenable position of trying to rebut statements by the girls to the trial court of which he had no knowledge.
Clark's trial counsel said he had "strong reason to believe that the kids have been coached." The court replied: "I interviewed them for 45 minutes this morning and I have no reason to believe they've been coached. They may have heard things about dad that is parallel to what they themselves believe, but based on their description of their experience at dad's, they just don't want to go there that often and I'm not likely to make them." Clark's trial counsel explained "that's one reason we do need to do more discovery," and he said he had "two expert witnesses that we wanted to work with with the kids to get to the bottom of this." When he explained that he would need more time to present "a small handful of people" as witnesses, the court stated: "Actually, this is not a political process either. We call these people the posse when they show up like this and they don't have any bearing on the decision either." Clark's trial counsel insisted that his witnesses "intimately know the daughters," but the court cut him off and said: "If you plan to have them all testify, I'll just continue this to January or February sometime. You'll have plenty of time to do discovery and we'll leave the current orders in effect." The court then asked Weiser's trial counsel for her "position on a continuance," and she "strongly oppose[d] a continuance."
The court interjected: "Isn't there a huge child support arrearage here? Like a hundred thousand dollars?" "Well, I'm wondering how he can afford to spend all this money and wants to spend all this money on this proceeding and can't pay child support." Clark's trial counsel tried to explain what he viewed as the important issues, but the court said: "Do you think you're helping things here really, actually?" Clark's trial counsel responded: "Every one of these allegations has been exaggerated to the point where any reasonable judge would have changed the order, but they're not true." The court replied: "This reasonable judge interviewed these two girls . . . for 45 minutes to an hour this morning with Ms. Williams [the FCS mediator] . . . . [¶] I wouldn't change anything in the order right now based on that interview. The girls were crying and they were crying about their father and the way he treats them and the way he treats women in general and the way he makes them feel, and his pouting and his unanticipateable [sic] rages at small slights that they make at his house, and weird behavior by him and his girlfriend. [¶] Anyway, it goes on and on. And you're not going to call them as witnesses, I don't think, in this case. I would find it atrocious if you did." "He pouts and he gets into two-hour rants where he lectures them for two hours and doesn't tell them why he's mad at them until the very end. I heard about that. Heard about a lot of stuff, and it was very disturbing."
The court subsequently acknowledged that it had no documentation of any child support order. "THE COURT: Is there an outstanding order for child support? [¶] THE WITNESS [Clark]: There is an outstanding order. [¶] THE COURT: In what county? Because it doesn't show up in the Odyssey system."
Clark's trial counsel tried to argue that the girls had been influenced by Weiser because "they've been with mom" since the last hearing. The court cut him off. "I'm tired of me telling you that I don't believe any of their testimony or discussion with me this morning was coached by mom. I don't think it was. Ms. Williams didn't think it was either." Weiser's trial counsel reiterated that she opposed a continuance, and she complained about Weiser incurring attorney's fees and Clark not paying child support. Clark's trial counsel asked the court to avoid the "whole separate issue" of child support, and the court said "Let's start the hearing right now. Your burden. Call a witness."
Clark's trial counsel called Clark and Weiser's adult daughter N. to testify as his first witness. She testified that Clark had never been abusive to her, asked her to wash anyone's feet, or treated women "any harsher than men." She explained that Clark's "form of discipline" was "[l]ecturing." On cross, N. recalled that she might have been told to or asked to massage someone's feet. She also recalled that during her menstrual cycle "[w]e just couldn't make food for him . . . or really like touch him." The court asked N.: "When you were 12 and 13, did those attitudes make you feel uncomfortable at all?" She replied: "Yeah, but I wasn't really focused on that when I was 12 or 13."
The next witness was Clark. He testified that he had never asked anyone to wash anyone's feet. Once, in January 2013, the girls massaged the feet of an elderly woman who was a longtime family friend. Clark denied that he had any problems with women when they were on their periods. A decade ago he had a practice of doing the cooking when his wife was on her period. He no longer subscribed to the belief underlying that practice. He had no problem with touching his daughters if they were on their period or with food prepared by women who were on their periods.
Clark testified that he had had no visitation with the girls since July 11, 2016. He had spoken with the girls by telephone in August, and they told him that they wanted to spend time with him. Shortly after that conversation, Weiser texted him that the girls did not want to see him. Clark also testified that Weiser refused to permit the girls to communicate with him using their own phones and would allow them to communicate with him using only her phone. She also would not allow him to talk to them regularly. He testified that Weiser had repeatedly tried to "obstruct" the girls' desire to visit him. A binder containing photographs of Clark and the girls looking happy together and friendly written communications between them was admitted into evidence at the hearing.
In the midst of Clark's testimony, the court asked him if it was "true" that "you count the girls' underwear." Clark replied: "That's absurd." He explained that this allegation apparently arose from an incident where M. had a pair of inappropriate "thong panties" and it was pointed out to her that she had plenty of appropriate underwear. Weiser's attorney asked Clark a series of questions about whether the girls had been "directed to massage a man's feet," and he denied that that had ever occurred. She also asked him how much he had paid his trial counsel in attorney's fees and how much he owed him. When Clark testified that he had paid his trial counsel $2,000 and that they had "not discussed" further payment, the court interjected and demanded that Clark "answer" the question of "[h]ow much do you owe him?" Clark repeated that they "haven't discussed any further remuneration," and his trial counsel told the court that he was "working pro bono." The court then asked Clark whether there was "a written fee agreement," and, when Clark testified that "I don't have a written fee agreement," the court said to Clark's trial counsel: "Want me to report you to the State Bar for not having a written fee agreement?" Clark's trial counsel told the court that "we do have one."
Under cross-examination, Clark testified that he wanted to depose Weiser and K. "and several other witnesses." She asked him: "Why don't you pay child support?" This led to a colloquy with the court about the status of the child support, and Clark testified that "$8,000 is owed to the County of Santa Cruz." Weiser's trial counsel insisted that he owed "closer to about $80,000," which he denied. Clark did admit that a $60,000 lien had been placed on his residence, and his driver's license had been suspended for nonpayment of child support. He explained that the license suspension was not impediment to his visitation with the girls because he had "drivers, including my mother" and his girlfriend who were willing to transport the girls as needed.
When Clark's trial counsel was trying to ask Clark questions on redirect, the court said: "I thought you had a bunch of witnesses you want to call this afternoon. We only have 45 minutes left." Clark's trial counsel immediately terminated redirect. Weiser's trial counsel then objected to "these numerous witnesses" and said that she wanted to have Weiser and K. testify. The court said: "Let's hear from them first before we hear from a bunch of strangers." Clark's trial counsel objected "to the witnesses being called a bunch of strangers, because these are family members." The court replied: "You're right. That wasn't a fair comment. They're not as intimately involved in these issues as are Ms. Weiser and their daughter K[.] We've already heard from the other older daughter and I'm much more interested in hearing what the family members have to say than people who I'm not sure what their connection is with the family members other than Mr. Clark brought them all to court today."
Weiser's trial counsel called Weiser to testify. She asked her whether Clark "was abusive in any way to you or the children," and Weiser said "Yes." Weiser testified that Clark was "very controlling" and prone to "[l]ong, drawn out lectures" to both her and the girls. She described Clark's "issue with this menstrual cycle business" as "a religious thing with Hinduism." "[I]f a woman's on a period, it was going to make him sick if we touched groceries, if we touched food." He also would not want to have physical contact with the her or the girls if "they were having their period." Weiser testified that this was something Clark "was still practicing" "a couple of years ago." She also testified that M. had told her that Clark had taken her somewhere where she "had to touch this man's feet." "I know that she was probably not touched inappropriately or anything like that. But she could not say no to something like that. And . . . I really want them to be able to say, 'I don't want to do this'. . . ."
Weiser's understanding was that the girls had difficulty telling Clark how they felt. "He gets very emotional. His feelings get hurt. Then he won't talk to them. He does the silent treatment thing." Weiser testified that she was "surprise[d]" to learn that "the girls were so unhappy" and did not want to visit Clark. She said that the last time the girls had visited Clark "they came back crying." Since the July 2016 temporary custody order, M. and Y. "don't want to go at all" to visit Clark. Weiser testified that she had tried to persuade them to visit Clark, but they refused. She explained that Clark was "very good with little kids," and E. wanted to visit him. However, M. and Y. did not want to visit, and E. wanted to be with her sisters. Weiser conceded on cross that she was aware of only two foot massaging incidents. One involved K. and N. "when they were young," and the other involved M. and Y.
Weiser's trial counsel next called K. to testify. K. testified that, when she was growing up, "[t]here were several occasions where he wouldn't hug me if I was on my period, wouldn't let me touch food that he would eat or he would get really sick. [¶] I wasn't allowed to drink from a certain cup because he told me that I would be alone and a frigid bitch for the rest of my life if I did." K. described an incident where she had made a pie, Clark had eaten some before learning that she was on her period when she made it, and he "threw himself down the stairs at our house because he was so sick from it." During K.'s childhood, Clark would "lecture" her for "ridiculous stuff" and "yell at me about my life decisions for hours." She was afraid to "say no to him, because if we did, we would hurt his feelings and he'd be pouty, silent treatment, wouldn't talk to you, wouldn't acknowledge you. And it was just easier just to say what he wanted to hear rather than argue or fight with him."
On cross, K. testified that Weiser paid her $60 a day to take care of her sisters.
K. testified that she had heard her little sisters telling Clark things on the phone and then getting off the phone and saying that they did not want to do what they had said but did not "know how to tell him no." K. had also heard Weiser trying to persuade the girls to visit Clark, but "they don't want to do it." K. testified that Clark had once taken her to the home of a man who was "like his Indian dad," and she "had to massage his feet and kiss them out of respect." She also testified that Clark's home was not safe because "there is a bunch of random people there all the time living or camping or just being on the property." K. explained that her relationship with Clark became unhealthy once she "started making my own decisions and being an independent person" at the age of 11 or 12.
After K.'s testimony, this colloquy occurred: "MR. LODGE [Clark's trial counsel]: Shall I call my next witness? [¶] THE COURT: Sure. [¶] MS. KEMP [Weiser's trial counsel]: Your Honor, with respect to the list of -- [¶] THE COURT: Actually, let's go through and make an offer of proof as to what witnesses are going to tell us." Clark's trial counsel identified his first witness as Linda Kaplan and said she would testify that she, her husband, and their son "spend many weekends with the kids on the property." He told the court: "These are responsible adults in our community. These aren't a hired posse. These are real people."
This colloquy followed: "THE COURT: I didn't suggest that they were hired. I suggested that they were brought down here for political reasons to sway the court by community support, which is totally irrelevant. [¶] MR. LODGE: No, Your Honor. These are people -- [¶] THE COURT: What's Ms. Kaplan going to tell us that's relevant to the decision of this case and the custodial agreement we're talking about? [¶] MR. LODGE: Well, we're going to ask and find out, but -- [¶] THE COURT: If you don't know, then who's your next witness? [¶] MR. LODGE: I know that she will tell you this, Your Honor. This is what I've asked so far. [¶] She will tell you that she has seen Gabriel interact with his daughters many, many times. I believe I asked how many, and she said hundreds. And she's going to tell you she has never seen or heard of feet washing or massaging -- [¶] THE COURT: We've already established that. Actually, he admitted it. [¶] [MR. LODGE]: Issues around periods, that his daughters rush to hug him and seem to love him and are smiling and happy all the time and that . . . Gabriel's a role model father."
Clark's trial counsel went on to describe the next witness, who would testify that he had "very frequently" "worked with the girls" and was "impressed with the relationship that he's seen between the girls and the father, Gabriel Clark." As he began to describe another witness, Clark's trial counsel asked: "Am I being held to this exact order?" The court responded: "You're going to be held to about two witnesses. We're going to finish at 4:30 and that's the end of this hearing. It's not going to be continued." Clark's trial counsel told the court that he needed to call Clark's aunt, who "has been involved in Gabriel's and the children's lives their whole life."
This colloquy followed: "THE COURT: Okay. Pick your two witnesses. Let's go with Ms. Reynolds [Clark's aunt] first if she's the one you want to call. [¶] MR. LODGE: Your Honor, forgive me. For the record I have to say I feel that it would be an injustice to not be able to call more witnesses; maybe not all, but -- [¶] THE COURT: I think under 352 I'm going to deny that privilege because it's cumulative and they're all going to say that Mr. Clark is a wonderful person. But I have no reason to believe that of any of the issues we've talked about today they would have any personal knowledge because they're not the kind of things people talk about. And I believe from my discussion with the girls that has been pointed out through several witnesses, that the girls will act in the way that they think their father wants them to act when they're at father's house to avoid any kind of problems with father because they've a lifetime of being lectured and pouted to and getting the silent treatment."
"MR. LODGE: The same thing is true at mother's house. [¶] THE COURT: You didn't ask mother any questions or call any witness who can testify about that or have such witnesses on your list, I don't believe. [¶] MR. LODGE: That's because we're on a time constraint and I need to get my witnesses -- one other witness you haven't asked about it Hardip Kalsi [Clark's girlfriend] and I know -- [¶] THE COURT: I would think you'd want to call her first and that's going to run us out of time, but call somebody. [¶] MR. LODGE: I can keep it brief. I can ask her if she has periods and -- [¶] THE COURT: Fine. Let's ask her. Don't tell me about it. [¶] MR. LODGE: Should I call Hardip Kalsi first? [¶] THE COURT: I'm not telling you who to call. I'm telling you you have 12, 11 minutes left now. [¶] MR. LODGE: Your Honor, we're not going to be able to go until 5:00 today? [¶] THE COURT: No. I never go 'til 5:00. I go 'til 4:30 because of collective bargaining rules and because I have a calendar to prepare for tomorrow and I have a meeting at 4:30 with my colleagues on an unrelated issue.
"MR. LODGE: I need to have this continued. It could be tomorrow. It could be -- these are witnesses that are important in this case and I think the court will be influenced. [¶] THE COURT: The issue here -- the court will not be influenced, frankly. I'm telling you that to save you time and money. [¶] I interviewed the girls this morning. There's nothing that I've learned today that is any different than what I learned from the 11-year-old and the 13-year-old. They don't want to see their dad right now. [¶] Mom says that in a text message. 'Why don't you just let it go for a while?' But no, you want to make a big legal thing out of this and call 30 witnesses, try to convince me that dad's a good guy. I think dad is a good guy. He's got some different beliefs about how you raise children. [¶] And right now he's got a severe problem because two of his girls don't want to see him at all, and they're influencing the third girl. I don't believe the mother had anything to do with this. [¶] The testimony here from the witness you called, N[.], and K[.], and mom and these two girls are all fairly similar, not in a way that indicates that there's a parental alienation and planned testimony going on here, but they all have the same kind of reaction to dad. [¶] And K[.] got over it when she was 12 years old. And N[.] testified that when she was 12 or 13 dad did the same strange stuff, but it wasn't a big deal to her. It is a big deal to the 11-year-old and the 13-year-old, and you're basically not going to get any traction here. [¶] I'm going to adopt the order that we've talked about, which is these two girls that we're talking about, M[.] and Y[.], are not going to have to see their dad for the time being unless they want to because it's not in their best interests to force them to see their dad." "So go ahead. Call a witness. Now you have nine minutes."
Clark's trial counsel called Kalsi, who testified that she had been in a relationship with Clark for three years and had acted as a caretaker for the girls when they were at Clark's house. She had seen Clark "discipline" the girls. He would "not really yell." "He'll usually just pull them aside, talk to them and try to tell them how it is that their decisions are impacting each other, and try to do a better job. And it's usually very calm and quiet and almost interesting . . . . There's no yelling, screaming, shouting, none of that." Kalsi had also seen the girls "run up to him and give him a hug . . . ." She testified that Clark never treated Kalsi differently when she was on her period, which she "would never tolerate . . . ." She had also never seen Clark ask any of the girls to massage or wash anyone's feet.
Clark's next witness was Robin Jacobi, who had known Clark since 1990. Jacobi's three children had "[m]any, many times" spent time with Clark's girls at Clark's home. Based on his observations, Jacobi believed that Clark was "a wonderful father" who was "really kind and loving with his kids." He testified that the girls appeared to love Clark and to be happy when they were visiting Clark's home. He had never known Clark to ask any of his girls to wash or massage anyone's feet.
As soon as Jacobi was done testifying, the court said: "That's it. We're done. 4:35. Thank you. You're excused." "[W]e're done. [¶] You folks need to go to counseling and work -- you need to go to counseling and work on a therapeutic program with your daughters so that you're able to hear with the help of another person their world view. And, you know, you're basically living the past over again. [¶] You had the problem with the two older daughters. The same thing is happening now. There's nothing -- the actual order here was proposed by [M.], which is alternate Fridays to Wednesdays, and then we had the hearing and I think I added in the girls don't have to see you if they don't want to. That's the current problem and that's what I'm not going to change right now. It's not forever. Right now there's a problem. They don't want to see you . . . . [¶] . . . You need to get into some kind of joint therapeutic counseling. You need to involve mom, Ms. Weiser. [¶] You need to find a therapist, and as a family basically you need to sit down -- maybe with Hardip, maybe not, because this is -- she's kind of a mom but she's not the mom. But that's for you all to work out with the help of a therapist. [¶] You need to work through these issues in a counseling context, not in a litigation context. You can call another 30 witnesses who say Mr. Clark's a great guy, and I think in most respects he is, but he's got a problem with his daughters right now, the adolescent daughters, and they're testifying consistently basically with both the 21 year olds. [¶] And it's a problem that arises at this age, as it was put, when they start to act independently. You have trouble with that apparently. I don't know. But whatever it is, it's manifested itself in a way now that the girls right now don't want to be with you."
"And because the 11-year-old and the 13-year-old don't want to be, the 6-year-old doesn't want to be. I don't think she has any independent views. The 11-year-old and the 13-year-old, according to what we talked about today didn't feel that way when they were 6, but now that they're 11, 12, 13, they're adolescents. They're going through life changes. They're going through intellectual changes. They're going through emotional changes. And your approach to it isn't one that works very well for girls that age. You need to fix it and you need to do it with counseling, not with lawyers and evidentiary hearings. [¶] So I'm just going to leave the current order in place, which is that you can have Fridays to Wednesdays on alternate weekends. We can change that later, but you need to get through the problem right now that the 11-year-old and the 13-year-old don't want to talk to you or have anything to do with you for a variety of reasons. [¶] And we covered all those reasons this morning for like 45 minutes with Ms. Williams. And they confirmed that everything that was in Ms. Williams' report was what they said accurately. And they've got issues and you've got to deal with those issues. And it's not going to be fixed here. It's going to be fixed somewhere in a counselor's office. [¶] So that's the order for today. Thank you. I don't have any more time."
"I'm not going to change anything. If the girls don't want to see you, they don't see you. That means that you have to find a new way of approaching them without using legal rules and regulations. [¶] You need to, with the help of [Weiser], you need to figure out how to fix your relationship with your two middle daughters. And I'm not going to order them to do anything they don't want to do, and they don't want to see you right now. [¶] And it's not because of anything mom made them do. It's not anything K[.] made them do. It's a combination of these things we've talked about this afternoon which I believe actually do happen. I do believe you lecture them at length about silly things to the rest of the world, but they're important to you, apparently. [¶] I do believe you pout and give them the silent treatment. I do believe that you have strange issues about menstrual cycles because I don't know that anybody else in the room could've rattled off the way that eight or ten religions or ethnic groups feel about it, or Leviticus 15, which goes on at length about it [as Clark had in his testimony at the hearing]. So obviously you've studied it, and it's an issue. You need to work on that." "[T]he girls confirm that mom pushes and pushes and pushes them to go see you, and they don't want to. It's not her fault. You've got to get past that. It's not her fault. It's things that you do that bother your daughters and you need to fix it yourself with them in counseling."
Following the court's ruling, this colloquy occurred: "MS. KEMP: What is the court's order with respect to our request for fees for today? [¶] THE COURT: I don't know that we did one. [¶] MR. LODGE: That's not on there. [¶] MS. KEMP: I had requested it in the objection to the ex parte request, for sanctions. [¶] MR. LODGE: I don't remember seeing that. [¶] THE COURT: What are your fees? [¶] MS. KEMP: I charge $325 an hour. [¶] THE COURT: What have you charged from the time of learning about the ex parte until now?"
Clark's trial counsel interjected: "Your Honor, my request was a reasonable request, to continue the case. We submitted discovery requests --" The court responded: "There's nothing I'm going to learn from you calling a string of witnesses or you doing discovery about K[.] or you doing discovery about N[.] or taking mom's deposition that's going to make this any better. The more depositions, the more legal stuff you do, the worse it's going to get. Can't you see that?" Clark's trial counsel said: "I see it now."
Weiser's trial counsel told the court that she had spent six hours for a total of $1,950 in fees. The court then ruled: "So there will be an order for $1,950 in fees" payable to Weiser's trial counsel directly. The court's written December 2016 order provided that the current order would remain in effect and that the girls "do not have to visit with Father if they do not want to." Clark timely filed a notice of appeal from the court's orders.
II. Analysis
Clark claims that "the [trial] court's conduct demonstrates that the trial court was biased against him and had prejudged the case." He points to the court (1) discounting the need for discovery, (2) referring to Clark's proposed witnesses as a "posse" and suggesting that Clark's witnesses were being presented for "political" reasons, (3) referencing child support arrearages, (4) repeatedly suggesting that the court's interview with the girls had been decisive regardless of any other evidence, (5) discounting assertions that the girls had been coached before Clark could present evidence, (6) questioning Clark about his fee agreement with his attorney and threatening to report Clark's trial counsel to the State Bar, and (7) limiting Clark's evidentiary presentation and stating that additional witnesses would not make a difference. Clark contends that, as a result of this conduct, the proceedings were "so tainted by judicial bias or unfairness" that he could not receive a fair hearing. He argues that "the record demonstrates that at least part of the court's antipathy to [Clark]'s case arose from its attitudes that a political agenda or the need to demonstrate community support are important motivations for witnesses."
Clark relies on Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994 (Haluck) and Pratt v. Pratt (1903) 141 Cal. 247 (Pratt).
In Haluck, the Court of Appeal concluded that the trial court's "egregious" misconduct at a jury trial prevented plaintiffs from obtaining a fair trial. (Haluck, supra, 151 Cal.App.4th at p. 1002.) " 'Where, as here, the appearance of judicial bias and unfairness colors the entire record, we depart from the general rule requiring plaintiff to make an affirmative showing of prejudice. The test is not whether plaintiff has proved harm, but whether the court's comments would cause a reasonable person to doubt the impartiality of the judge or would cause us to lack confidence in the fairness of the proceedings such as would necessitate reversal. The record here inspires no confidence in either case.' [Citation.] [¶] 'We scrupulously guard against bias and prejudice, actual or reasonably perceived, not only to prevent improper factors from influencing the fact finder's deliberations, but to vindicate the reputation of the court itself. . . . "We must also keep in mind . . . that the source of judicial authority lies ultimately in the faith of the people that a fair hearing may be had." ' [Citations.]" (Haluck, at p. 1008.) " 'Where the average person could well entertain doubt whether the trial judge was impartial, appellate courts are not required to speculate whether the bias was actual or merely apparent, or whether the result would have been the same if the evidence had been impartially considered and the matter dispassionately decided [citation], but should reverse the judgment and remand the matter to a different judge for a new trial on all issues.' " (Haluck, at p. 1009.)
Pratt was a property dispute between a wife and her husband. The husband called their 17-year-old daughter to testify at the trial so that she could contradict the wife's testimony. After the daughter took the stand and began to testify, the trial judge expressed extreme displeasure over the husband calling the daughter to testify. " 'I don't know anything more revolting than to have a child put on the witness-stand to dispute a parent, father or mother. . . . You can use your own choice. I just simply say to you that there is no depth of infamy to which people can sink more than to put their children on the stand to testify against father or mother. I don't know anything that would condemn your client in my eyes so completely as to put that girl on the stand to testify against the mother. You would have to bolster everything he (defendant) said to make me believe anything after he did that. I have very pronounced views on it. It is shocking when a child is offered on the witness-stand to testify to anything that a mother has said as true or untrue.' " (Pratt, supra, 141 Cal. at p. 250.) " 'You have the liberty to put this girl on and have her testimony. Ask her this question if you care to. I simply want you to understand that it opens the door to prejudice, which every court must have that has a family.' " (Id. at p. 251.) The husband responded by withdrawing the daughter as a witness.
On appeal, the husband asserted that he was entitled to a new trial due to the trial judge's conduct, and the California Supreme Court agreed. "The trial judge virtually threatened to prejudge the testimony of the defendant as a witness, and intimated that unless the daughter was withdrawn as a witness he would regard the fact of her having contradicted the mother in the father's interest as a matter seriously discrediting the latter's testimony. The judge certainly had no right thus in advance of hearing the testimony of the father to make up his mind as to the effect that previous testimony ought to have on the weight of his testimony. . . . The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand." (Pratt, supra, 141 Cal. at pp. 251-252.)
Like the trial judges in Haluck and Pratt, the trial judge's comments in this case created the appearance that he was predisposed against Clark and unwilling to impartially consider any evidence presented by Clark. At the beginning of the hearing, before Clark had presented any evidence, the trial judge told the parties that he had already decided, based on his interview of M. and Y., that the girls "have strong feelings about dad" and "should be permitted to decide when they want to visit their dad . . . ." He said "my decision wouldn't be based on" testimony by the adult daughters. The trial judge told Clark's trial counsel that he saw no need for discovery and suggested that Clark could have deposed Weiser and the adult daughters. When Clark's trial counsel noted that he had tried to do so, the trial judge said that depositions would have been pointless. "Where do depositions factor into [my] decision . . . ?"
Clark's trial counsel tried to explain his position that "the kids have been coached," but the trial judge told him that that he had already decided based on his interview that there was "no reason to believe they've been coached." He also told Clark's trial counsel that the girls "just don't want to go there that often and I'm not likely to make them." (Italics added.) Clark's trial counsel explained that he wanted to present "a small handful of people" as witnesses. At this point, the trial judge expressed his antipathy toward Clark's witnesses: "Actually, this is not a political process either. We call these people the posse when they show up like this and they don't have any bearing on the decision either." When Clark's trial counsel told the trial judge that these witnesses "intimately know the daughters," the trial judge threatened to "continue this to January or February sometime . . . and we'll leave the current orders in effect." The trial judge then began talking about child support arrearages, even though there was no issue before him regarding child support. "I'm wondering how he can afford to spend all this money and wants to spend all this money on this proceeding and can't pay child support." He lambasted Clark's trial counsel: "Do you think you're helping things here really, actually?" And he said "I wouldn't change anything in the order right now based on that interview." "And you're not going to call them as witnesses, I don't think, in this case. I would find it atrocious if you did." When Clark's trial counsel suggested that the girls had been influenced by Weiser because "they've been with mom" since the last hearing, the trial judge expressed both impatience and prejudgment. "I'm tired of me telling you that I don't believe any of their testimony or discussion with me this morning was coached by mom. I don't think it was." All of these statements by the trial judge occurred before Clark had been permitted to present any evidence.
The aura of prejudgment and bias did not abate as the hearing progressed. During Clark's testimony, the trial judge demanded that Clark disclose how much he owed his trial counsel. And even after Clark's trial counsel said that he was "working pro bono," the trial judge continued to pursue the matter and threatened to "report [Clark's trial counsel] to the State Bar for not having a written fee agreement." He followed this up by interrogating Clark about irrelevant child support arrearages. When Clark's trial counsel tried to ask some questions of Clark on redirect, the trial judge said he had only "45 minutes left" to present all of his witnesses. Clark's trial counsel immediately terminated redirect, but the trial judge then permitted Weiser to call her witnesses before Clark could present any additional witnesses. The trial judge explained that he wanted to "hear from them first before we hear from a bunch of strangers." After Clark's trial counsel objected to that comment, the trial judge clarified that he was "much more interested in hearing what the family members have to say than people who I'm not sure what their connection is with the family members other than Mr. Clark brought them all to court today." Thus, he continued to discount Clark's witnesses before they could even be called to testify.
Weiser was permitted to call her witnesses without interruption, but when Clark's trial counsel tried to call witnesses after Weiser's witnesses, the trial judge required him to make an offer of proof as to each witness. The trial judge reiterated that he thought "that [Clark's witnesses] were brought down here for political reasons to sway the court by community support, which is totally irrelevant." Clark's trial counsel began describing the witnesses he planned to present, and the trial judge abruptly told him: "You're going to be held to about two witnesses. We're going to finish at 4:30 and that's the end of this hearing. It's not going to be continued." "Okay. Pick your two witnesses." When Clark's trial counsel objected that "it would be an injustice to not be able to call more witnesses," the trial judge ruled "under 352" that "it's cumulative" because "I have no reason to believe that of any of the issues we've talked about today they would have any personal knowledge because they're not the kind of things people talk about." A contentious interchange with Clark's trial counsel ended with the trial judge telling him that he had "12, 11 minutes left now" and that they could not extend the hearing to 5:00 p.m. because "I never go 'til 5:00" due to "collective bargaining rules and because I have a calendar to prepare for tomorrow and I have a meeting at 4:30 with my colleagues on an unrelated issue." Clark's trial counsel's plea for a continuance was met with the trial judge's categorical statement that "the court will not be influenced" by Clark's witnesses. He castigated Clark for "want[ing] to make a big legal thing out of this and call 30 witnesses" and stated, "I'm going to adopt the order that we've talked about . . . ." "So go ahead. Call a witness. Now you have nine minutes."
This was not a fair hearing before an impartial adjudicator. The California Code of Judicial Ethics mandates that "[a] judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." (Cal. Code Jud. Ethics, canon 2(A).) Here, the trial judge did not act in such a manner. Instead, he placed onerous restrictions on Clark's evidentiary presentation, made statements discounting in advance any evidence that Clark might present, diverted the proceedings into irrelevant inquiries regarding child support and Clark's fee agreement with his trial counsel, threatened to report Clark's trial counsel to the State Bar, and then imposed attorney's fees against Clark apparently as punishment for requesting an evidentiary hearing. The trial judge's hostility toward Clark permeated the entire proceeding. Under these very unusual circumstances, we find that the trial judge's conduct created an atmosphere of unfairness that prevented Clark from obtaining a fair hearing on child custody. Consequently, we reverse the trial judge's orders and remand this matter for a new hearing.
We need not remand this matter to a different trial judge as the trial judge in this case is now deceased. --------
III. Disposition
The court's child custody and sanctions orders are reversed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Greenwood, P. J. /s/_________
Elia, J.