Opinion
C053483
6-24-2008
COUNTY OF SACRAMENTO, Plaintiff and Respondent, v. JEROME H. SPRAGUE, Defendant and Appellant.
Not to be Published
Jerome H. Sprague appeals from an order enjoining him from engaging in various zoning and building code violations. He contends that he is entitled to a new trial due to procedural irregularities, including denial of his motions for a continuance, his right to a jury trial, his right to cross-examine witnesses against him, and his right to make an opening statement and closing argument. In Spragues view, the alleged irregularities reflect "structural errors" at trial that are reversible per se and demonstrate that the trial judge was biased against him. Because the claims lack merit, we shall affirm the judgment.
FACTS
On December 15, 2003, the County of Sacramento filed a complaint seeking an injunction against Sprague based on his violation of county building and zoning codes, including that he illegally remodeled and constructed changes to his property without the requisite building permits, maintained illegal utility connections, and parked limousines on a portion of his property that was zoned for residential use.
Sprague filed a cross-complaint for inverse condemnation, nuisance, and "Deprivation of Rights Under Color of State Law." The County prevailed on the cross-complaint when the trial court entered summary judgment thereon in the Countys favor. Prior to the ruling on the summary judgment motion, Spragues counsel withdrew from the case.
On January 10, 2006, the date scheduled for trial, the trial court granted Spragues motion to continue the trial date until April 24, 2006. The record does not expressly disclose the grounds for the motion, but it appears that Sprague hoped to obtain another attorney.
Sprague then wrote a letter advising the court that he had an appointment with an attorney regarding representation in this case. He also complained that the summary judgment hearing had been held on December 16, 2005, despite the fact he submitted a "notice of unavailability" on December 8, 2005, in which he asked that no proceedings be held because he would be on vacation. Apparently Sprague, who claimed he was "gang-banged by the judge on the summary judgment," had expected the trial court and opposing counsel to take action on his notice of unavailability and accommodate him by delaying the summary judgment hearing without the need for Sprague to file motion for a continuance. He asked the court to "redact the County order until retained counsel has reviewed it." Spragues efforts to obtain counsel were not successful.
On April 24, 2006, the first day of trial, Sprague advised the court that he could not find an attorney. According to Sprague, "I have tried every which way. Ive got a legal plan, they didnt furnish an attorney. Ive got a legal secretary full-time in San Diego. I havent contacted an attorney. I cant — in fact, the Bar Association here wont make any referrals if they are against a government agency. [¶] I finally talked to somebody Friday if I can get it continued until after July that she can — shell have time on her calendar."
Earlier, Sprague had orally requested a continuance based on medical grounds before Judge Candee, who denied the request and assigned the matter to Judge Shepard for trial that day as scheduled. Sprague renewed his motion before Judge Shepard, seeking a delay of 90 days because of "stressed vocal cords that is precipitated from all this Rambo stuff that [the County] pulled on this property." In addition, his medication was giving him "jitters" and he could not focus. When the court learned that Sprague had moved for a continuance earlier that day before Judge Candee, it declined to reopen the matter. The court observed that witnesses had been subpoenaed and were present. Indeed, Sprague had served numerous people with notices to appear and refused to withdraw the notices when requested to do so by the County.
Sprague asserted he was entitled to a jury trial, which the County disputed. According to the County, the summary judgment resolved all the claims in Spragues cross-complaint. Because the remaining issues arose from the Countys complaint for injunctive relief, which was an equitable action, Sprague was not entitled to a jury trial. The court agreed.
Sprague complained that he did not think he could "get a fair trial in this courthouse." He did not expect to be going to trial, and thought he would be permitted to get his voice back and his health back. He claimed he was not prepared to go to trial and requested a continuance to obtain an attorney "to explain this stuff to me, unless [the court] want[ed] to explain it all to me." However, Sprague had shown the court a letter from his former counsel, who withdrew from the case in November 2005, in which counsel advised Sprague of the timeframe to prepare for trial. The court stated, "Nobody sprung this date on you," observing Sprague had months to prepare for trial or to obtain an attorney. It was "untimely" to request a continuance on this basis.
Thereafter, the County presented its witnesses and evidence concerning Spragues building and zoning code violations. Sprague continued to complain about his vocal cords. It is unnecessary to detail the evidence submitted because all of Spragues appellate contentions concern alleged procedural violations at the trial. He does not challenge the sufficiency of the evidence to support the judgment granting the Countys request for an injunction, or contest the legal basis for the injunction. In fact, Spragues appellate briefs do not include a statement of the substantive facts underlying the Countys action against him.
On the third day of the trial, May 2, 2006, Sprague filed a written motion for a continuance, declaring his vocal cords had been injured, which caused him chronic pain and hoarseness. He submitted a document of medical impairment from Kaiser Permanente, dated April 19, 2006, which indicated he had chronic voice loss and should rest his voice for four weeks. According to Sprague, the doctors told him to "shut up." In addition, he submitted articles concerning voice problems recommending resting ones voice when it is overtaxed. And he proffered a DVD of his injured vocal cords.
Sprague also filed a motion to continue the trial due to lack of legal representation. He declared that he had been unable to secure counsel, noting that a few days earlier he contacted an attorney who would not be available to assist him until August. He submitted a declaration from Rebecca Bowers, who had been doing typing and transcription work for Sprague. Bowers declared that due to Spragues stressed vocal cords, he had asked her to assist him in obtaining counsel by speaking with prospective attorneys. Sprague placed an advertisement in a Sacramento newspaper but received few responses. Those who responded were not interested "[a]fter further explanation" of the case. Bowers contacted the Sacramento County Bar Association Legal Referral, searched LawyerLocator.com, and emailed several firms inquiring about representation; but the only lawyer who responded had scheduling conflicts.
The court denied both of Spragues motions to continue the trial. The court stated Sprague had been able to represent himself adequately and cross-examine witnesses thoroughly, and the court had been able to understand him. The court ruled Spragues claim that his voice was "leaving [him] now" was a "delaying tactic."
Sprague also filed a motion for new trial based on the denial of his right to a jury trial. The court explained the new trial motion was premature because the court had not yet issued its ruling. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 459-460 [motion for new trial is premature and void if filed before the court has signed and filed its findings].)
Thereafter, Sprague testified in his own defense. He did not present any other witnesses because he had failed to secure their attendance by serving them with subpoenas.
Following Spragues testimony, the court granted the Countys request for an injunction and ordered Sprague to remove illegally parked limousines from his residential property; remove illegal remodeling additions; demolish a breezeway and trash enclosure; remove illegal utility connections; and cease using buildings until certificates of occupancy were obtained from the building department.
On May 15, 2006, Sprague moved for a mistrial or new trial based on the courts denial of his request for a continuance for medical reasons. He submitted a copy of a declaration from an attorney, John Cassinat, who was representing Sprague in another action and had filed the declaration requesting a continuance until September in the other action. Cassinat stated Sprague suffered from chronic vocal cord issues and had been unable to prepare for trial with Cassinat while Sprague was representing himself in the action for injunction, and Sprague was seen by a doctor on May 5, 2006, who advised him to rest his voice for 60 to 90 days. Sprague submitted a letter from the doctor named in Cassinats declaration. In the letter, which is dated May 5, 2006, Dr. John Ostrich diagnosed Sprague with acute and frequent laryngitis, prescribed that he refrain from "excessive speaking" for 60 to 90 days, and asked for a postponement of Spragues court dates.
A hearing on Spragues motion for new trial was set for May 26, 2006. Sprague failed to appear due to a doctors appointment in San Diego, and the court continued the matter until June 23, 2006.
On June 23, 2006, Sprague, who was still in San Diego, sent a fax stating that he was taking care of his throat and other business and felt he could get better medical care surrounded by loved ones in San Diego, and that he was surprised the matter was being heard as scheduled because he thought it was being continued until September. The court noted that Sprague had received notice of the hearing and had time to hire an attorney. The court denied the motion for new trial, noting Sprague competently represented himself at trial and was able to talk despite his vocal cord problems. In the courts view, Sprague had been using his vocal cords as an excuse to obtain continuances and was manipulating the court.
The court signed the written order granting the injunction, which was filed on June 23, 2006.
On July 17, 2006, Sprague, who was now represented by counsel, moved for reconsideration of the courts order denying the motion for a new trial based on "numerous irregularities at the trial." According to Sprague, notice of the order denying the motion had been sent to the wrong address and he had not received it until July 5, 2006, which rendered his motion for reconsideration timely even though it was filed beyond the statutory time limits of Code of Civil Procedure section 1008.
The County opposed the motion, observing that Sprague had not alleged any new or different facts, circumstances, or law which Sprague could not, with reasonable diligence, have discovered and produced at the time of his prior motion; he simply rehashed his prior arguments regarding procedural irregularities. The only "new" fact was the allegation that Sprague discovered after trial that Judge Shepard was on the Law Library Board of Trustees with head counsel for the County of Sacramento, Robert Ryan, Jr. Sprague made an unsupported claim that this demonstrated bias, but did not develop the argument further.
The court denied the motion for reconsideration on August 15, 2006, and Sprague filed his notice of appeal on August 21, 2006.
DISCUSSION
I
Sprague asserts he is "requesting a Motion for a New Trial for the Permanent Injunction which was issued on May 2, 2006." He presents a scattered attack on the trial proceedings in general, with a cursory "Statement of Facts" that is devoid of appropriate citations to the record. Spragues arguments are structured in a way that it appears he is attempting to move for a new trial on appeal, rather than simply seeking review of the trial courts denial of his motion for new trial. If so, the effort is unavailing as a motion for new trial must be filed in the trial court. (Code Civ. Proc., §§ 656, 659, 661.)
If Sprague is challenging the trial courts denial of his motion for new trial, the ruling may be reviewed on appeal from the judgment. (Morton v. Loveman (1968) 267 Cal.App.2d 712, 719.) But his arguments are not limited to discussing the only ground raised in his motion for new trial, i.e., the alleged erroneous denial of a continuance for medical reasons. The remaining irregularities that he discusses on appeal were not raised in his new trial motion, although some were raised in his motion for reconsideration. In any event, because Spragues claims of error all concern proceedings at trial and he filed a timely notice of appeal from the judgment, we shall review his claims that were preserved in the trial court by some appropriate method. (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422 [points not urged in the trial court will not be considered for the first time on appeal]; accord, Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 371, fn. 8.)
Because Spragues appellate brief and his conduct at trial display a lack of familiarity with applicable procedural rules, it is helpful to set forth some of the rules prior to addressing his contentions on appeal.
A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) It is appellants burden to affirmatively demonstrate reversible error. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; In re Marriage of Gray, supra, 103 Cal.App.4th at pp. 977-978.)
Appellants burden includes: (1) presenting each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; (2) providing an adequate record that affirmatively demonstrates error; (3) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record; and (4) showing exactly how the error caused a miscarriage of justice. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) If appellant fails to comply with these rules, the contentions are forfeited. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295; City of Lincoln v. Barringer, supra, 102 Cal.App.4th at pp. 1239-1240; In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337; Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th at p. 502; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785; Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.) In addition, points raised or developed for the first time in a reply brief will ordinarily not be considered, because it would deprive the respondent of an opportunity to counter the argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; see also Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)
Lack of legal counsel does not entitle a litigant to special treatment (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290); the pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
With these rules in mind, we turn to Spragues appellate contentions.
II
Sprague contends the trial court erred in denying his motions for a continuance based on his medical condition and on his desire to obtain legal representation.
In civil cases, continuances are disfavored, the assigned trial dates are firm, and parties and their counsel must regard the trial date as certain. (Cal. Rules of Court, rule 3.1332(a) & (c); further rule references are to the California Rules of Court.) A party seeking a continuance must make the request by a noticed motion or an ex parte application, with supporting declarations, as soon as reasonably practical once the need for the continuance is discovered. (Rule 3.1332(b).) The trial court "may grant a continuance only on an affirmative showing of good cause requiring the continuance." (Rule 3.1332(c).) The unavailability of a party or of trial counsel because of death, illness, or other excusable circumstances, may indicate good cause for a continuance. (Rule 3.1332(c)(2) & (3).)
In ruling on a motion for continuance, the trial court must consider all relevant facts and circumstances, including whether previous continuances were granted; the availability of alternative means to address the problem that gave rise to the motion for a continuance; prejudice that parties or witnesses will suffer as a result of a continuance; and whether the interests of justice are best served by a continuance. (Rule 3.1332(d).)
The decision whether to grant a continuance is within the trial courts sound discretion and will not be disturbed on appeal unless the decision is arbitrary, capricious, or patently absurd and results in a miscarriage of justice. (Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 271; In re Karla C. (2003) 113 Cal.App.4th 166, 180.) In evaluating the propriety of the trial courts ruling, we consider the information the parties provided to the court prior to the ruling (Hansen v. Owens-Corning Fiberglass Corp. (1996) 51 Cal.App.4th 753, 761), not following the ruling.
A
According to Sprague, the trial court erred in denying his repeated motions for a continuance based upon his documented medical condition. We disagree.
Sprague sought to continue the trial on the day that it was scheduled to begin, and there is no evidence in the record that he filed the requisite motion supported by a declaration documenting his health problems. (Rule 3.1332(b).) Judge Candee denied the request for a continuance and sent the matter to trial before Judge Shepard. Based on the lack of information in the record concerning the showing made before Judge Candee, we cannot say the court abused its discretion in denying Spragues belated request for a continuance. An appellant must affirmatively show error by an adequate record; in the absence of such a record, we will not disturb the trial courts implied finding that Sprague failed to show good cause for the continuance on the morning of trial. (In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 406.)
Even assuming that Sprague presented his notice of medical impairment to Judge Candee, the notice, which was dated five days before trial, merely suggested that Sprague rest his voice for four weeks. It did not indicate that Spragues health required a continuance or he would be unable to attend trial. The court did not abuse its discretion in denying Spragues initial request for a continuance, given that (1) Sprague had already been given a continuance of four months; (2) he did not immediately move to continue the trial when he obtained the medical notice thereby inconveniencing opposing counsel who prepared for trial and witnesses who appeared to testify on the day of trial; (3) the court had the opportunity to hear Sprague speak and could ascertain the degree that his condition would impair his ability to proceed with trial; and (4) Sprague, who alleged his condition was chronic, had several months to obtain an attorney to represent him and could have rested his stressed vocal cords by doing so.
Sprague sought to renew his motion for a continuance before Judge Shepard, who declined to reopen the matter that had just been decided by Judge Candee because it was "like judge shopping." Sprague renewed the motion again on the third day of trial, but by then the court had ample opportunity to observe Spragues condition. The degree that his condition impaired his ability to represent himself was a question of fact for the court. (People v. Mazoros (1977) 76 Cal.App.3d 32, 41.) It found that Sprague had been able to represent himself adequately and had cross-examined witnesses thoroughly, and that the court had been able to understand him. The court found Spragues claim that his voice was "leaving [him] now" was a "delaying tactic." On this record, the court did not abuse its discretion in denying the continuance. (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17 [continuances should not be used as a dilatory tactic].)
Sprague disagrees, relying on Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 (hereafter Oliveros) and Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 (hereafter Hernandez), which are distinguishable. In both of those cases, the parties had attorneys of record who indisputably were unable to appear at trial and sought a continuance as soon as practicable. (Oliveros, supra, 120 Cal.App.4th at pp. 1392-1393 [scheduling conflict of counsel of which he could not have known earlier than the week before trial]; Hernandez, supra, 115 Cal.App.4th at p. 1245 [attorney became terminally ill and died shortly before trial and plaintiff required spinal surgery during time set for trial].) In addition, in Hernandez, the trial was scheduled for a date on which neither the new attorney nor the plaintiff would be able to attend, such that the plaintiff would not be able to present his case unless the trial was continued. (Hernandez, supra, 115 Cal.App.4th at p. 1245.) In Oliveros, the unrepresented defendants did not present any evidence at all, which resulted in a directed verdict against them in excess of $12 million. (Oliveros, supra, 120 Cal.App.4th at p. 1394.) Lastly, in both cases the trial courts completely failed to balance the competing interests of judicial efficiency and of deciding cases on their merits. (Oliveros, supra, 120 Cal.App.4th at p. 1395; Hernandez, supra, 115 Cal.App.4th at p. 1248.)
In contrast, while Sprague would have preferred to delay the trial, he was able to appear, as is evidenced by the fact that he actually appeared on the day scheduled for trial and litigated the matter. "The denial of a motion for continuance for absence of a party may constitute an abuse of discretion by the trial court sufficient to justify reversal only where there is an affirmative showing of `good cause, such as serious illness or unforeseen circumstances which prevented a party from appearing at trial." (Young v. Redman (1976) 55 Cal.App.3d 827, 831, italics added.) Sprague did not have such an illness, and the record supports the courts determination that he represented himself adequately.
The court considered that witnesses were present, the case had previously been continued for the purpose of allowing Sprague to seek representation, and he had been in propria persona for almost five months, which gave him plenty of time to obtain counsel prior to trial. Accordingly, "[t]he record discloses a situation where the granting or denial of appellants various requests for continuance were within the discretion of the court and no abuse of that discretion appears in the record. [Citations.]" (People v. Leeper (1953) 117 Cal.App.2d 462, 466.)
Moreover, Sprague has not made the requisite showing of prejudice from the courts ruling. He has not shown that being required to continue to litigate the dispute with the County while suffering from stressed vocal cords prevented him from presenting specific evidence, cross-examining the Countys witnesses, or arguing his case in a manner that would have altered the outcome. Indeed, he does not address the substantive nature of the Countys case against him at all or attempt to demonstrate that this was a close case and there was a reasonable possibility that his medical impairment affected the outcome. He merely asserts his stressed vocal cords and the medication he was taking made it difficult for him to talk and to focus. However, the trial court observed Sprague and implicitly found otherwise. No abuse of discretion is demonstrated.
Nor did the court abuse its discretion in denying Spragues motion for new trial. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452 [whether to deny a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion].) Spragues motion was based on essentially the same ground as his motion for a continuance, except he submitted a doctors letter, dated a few days after the completion of trial, in which the doctor provided a specific diagnosis, prescribed that Sprague refrain from "excessive speaking" for 60 to 90 days, and expressly asked for a postponement of Spragues court dates.
The court postponed the hearing on Spragues motion for new trial until June 23, 2006, at which time Sprague did not appear and had not obtained counsel to represent him. The court denied the motion, finding Sprague had competently represented himself at trial and had been able to speak despite his health problems. The judge expressed the view that Sprague was manipulating the court and had been using his vocal cords as an excuse to obtain continuances. Sprague fails to demonstrate the judges assessment is infirm.
On appeal, Sprague contends he is entitled to a new trial based on accident or surprise. To demonstrate the accident or surprise warranting a new trial, a party must show a "`condition or situation in which a party to a cause is unexpectedly placed, to his injury, without any default or negligence of his own . . ., which ordinary prudence could not have guarded against. [Citation.]" (Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432.) Sprague does not make the requisite showing. He simply claims he was surprised by the courts failure to grant a continuance and, as a result, he did not prepare a trial brief or bring ten boxes of documents on the first day set for trial. Given that Sprague did not move for a continuance prior to the scheduled trial date, and that a continuance is not a matter of right, his "surprise" at being required to be prepared on the scheduled trial date was not justified and does not entitle him to a new trial.
Sprague fails to demonstrate that the trial court abused its discretion in denying his motions for a continuance and for a new trial on the ground he suffered from stressed vocal cords.
B
Sprague also contends the court abused its discretion in denying his motion for a continuance to obtain new counsel. Again, we disagree.
Spragues counsel withdrew from the case in November 2005, and trial was scheduled for January 10, 2006. On the scheduled trial date, Sprague, who was representing himself, requested and was granted a continuance. The record does not disclose the reason for the continuance, but the parties suggest that Sprague wished to obtain counsel. The new trial date was set for April 24, 2006.
Although Sprague must have known well before the scheduled trial date that he had not been able to find new counsel, he did not mention his inability to do so until the first day of trial, at which time he orally requested a continuance because he had not found an attorney despite having "tried every which way." He did not file a motion to continue in accordance with applicable court rules, with a supporting declaration demonstrating that he diligently sought to obtain counsel. (Rule 3.1332(b).) The court observed that Sprague had months to obtain an attorney and was well aware of the need to be prepared by the scheduled trial date. It did not grant a continuance.
The court did not abuse its discretion. Civil litigants have the right to appear by counsel retained at their own expense (Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027), but this does not excuse a litigant, who has substituted into the case in propria persona, from following appropriate rules and procedures in seeking a continuance to obtain counsel. (Nelson v. Gaunt, supra, 125 Cal.App.3d at pp. 638-639; Agnew v. Parks (1963) 219 Cal.App.2d 696, 701-702.) If the litigant is not diligent in making sure that counsel is available for trial, it is not an abuse of discretion to deny a continuance even where it results in the deprivation of legal representation. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 13, p. 39.)
It was not until the third day of trial that Sprague submitted a written motion for a continuance with a declaration from his clerical assistant, Rebecca Bowers, concerning their unsuccessful efforts to retain counsel. According to Bowers, Sprague had placed an advertisement in a newspaper and Bowers had searched for lawyers on the Internet and emailed several firms. Very few responses were received and, of those who responded, most had no interest in the case once they learned the details.
Spragues written motion was not made as soon as reasonably practical, and it does not demonstrate diligent efforts to retain counsel. Placing an advertisement with the expectation that attorneys respond places the onus on the potential lawyers, rather than on Sprague where it belonged. Although his assistant contacted some attorneys, their responses showed that Sprague was unlikely to obtain legal counsel due to the nature of his case. In the interest of fairness and judicial efficiency, neither the court nor the County was required to wait further while Sprague sought counsel to represent him at trial. (See Maynard v. Bullis (1950) 99 Cal.App.2d 805, 807 [plaintiff was not entitled to continuance for new attorney to prepare for trial, where he had two months to retain new counsel, and despite the fact that eight other attorneys had refused to represent him].)
Accordingly, the court did not abuse its discretion in denying Spragues request for a further continuance to retain counsel.
III
Sprague contends that there were numerous other procedural irregularities that entitle him to a new trial. As we will explain, his contentions are not persuasive because he fails to establish either error or prejudice.
Relying on In re Enrique G. (2006) 140 Cal.App.4th 676, Sprague believes that he need not establish prejudice because the alleged irregularities establish "structural error." He is wrong.
Structural errors affect "the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Arizona v. Fulminante (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 331].) Such errors are not subject to the conventional harmless-error analysis because they affect the entire conduct of the trial from beginning to end. (Id. at pp. 309-310 [113 L.Ed.2d at pp. 330-332]; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 577.) Examples of structural errors in the criminal context include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendants race from a grand jury, denial of the right to self-representation at trial, denial of the right to a public trial, and an erroneous reasonable doubt instruction to the jury. (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310 ; accord, In re Enrique G., supra, 140 Cal.App.4th at p. 685.)
Contrary to Spragues assertion, erroneous evidentiary and procedural rulings are not "structural defects" reversible per se. (See Arizona v. Fulminante, supra, 499 U.S. at pp. 307-309 [113 L.Ed.2d at pp. 329-331] [differentiating between structural and trial errors and holding harmless error rule applied to admission of involuntary confessions]; Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 572, 576-579 [acknowledging the difference between trial and structural errors in civil cases; holding instructional error subject to prejudicial error rule].)
Indeed, the California Constitution states: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. 6, § 13, italics added.)
"[O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) "Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there." (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77; accord, In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337.) As will be shown, Sprague simply "points" and "rests," which is not sufficient.
A
Sprague argues the trial court erred in denying his demand for a jury trial without first giving him the opportunity to respond to the Countys argument that he was not entitled to a jury trial in an equitable action.
Sprague had ample opportunity to respond to the Countys assertion that he was not entitled to a jury trial; he simply did not do so because of his lack of legal knowledge. That is no excuse because a pro se litigant is not accorded special treatment. (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 795; Nelson v. Gaunt, supra, 125 Cal.App.3d at pp. 638-639.)
Furthermore, because the essence of an action to abate a public nuisance and for injunctive relief is equitable, there is no right to a jury trial. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1245; Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353.) Sprague does not cite to any contrary authority in his opening brief. Thus, he has not shown that the courts alleged failure to afford him an opportunity to respond to the Countys legal argument deprived him of a fair trial in that he could have produced authority supporting his claim of entitlement to a jury trial.
In his reply brief, Sprague asserts he may not have been entitled to a jury trial, but the court had discretion to permit a jury trial. (Citing Bettencourt v. Bank of Italy etc. Assn. (1932) 216 Cal. 174, 179 ["in an equitable proceeding a jury trial is not a matter of right, but the court may in its discretion, if so advised, call a jury to assist in the trial of the matter"].) Aside from the fact this argument is raised for the first time in Spragues reply brief, he fails to provide any cogent analysis demonstrating that the court abused its discretion in determining that the assistance of a jury was not necessary. Consequently, his contention is forfeited. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785; Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 764-765.)
B
Sprague argues the court denied him the right to present an opening statement or to hear the Countys theory of the case against him via its opening statement.
The record discloses that the Countys attorney offered to make an opening statement if the court wished, but the court stated it did not need to hear one because the County had set everything forth in its trial brief. Sprague, who had not filed a trial brief, stated: "I would like an opening statement." The court asked if he would like to do so then or before he called witnesses. Sprague asked for an explanation, and the court replied that an opening statement explained the partys theory and could be made after the Countys opening statement or could be reserved until Sprague presented his witnesses. Sprague asked for a continuance to "get an attorney to explain this stuff to me, unless you want to explain it all to me." The court replied, "I just did. Thats all the opening statement is."
Thereafter, when the court asked if the parties were ready to go forward, Sprague stated: "I make an opening to start out with. [¶] The objection is they had no right to be on the property. They made zero that gave them complete notice that they had no right to be on my property unless they had a court order. [¶] They forced themselves in with the tenants by getting 15 people in there and say we are going to arrest you if you dont. And that was improper."
The record plainly shows the court never "denied" Sprague the opportunity to make an opening statement. Indeed, he had a second opportunity to outline his defense when he testified at trial.
As for Spragues desire to hear the Countys theory against him in an opening statement, he does not cite any authority establishing a right to require the opposing party to make an opening statement. Sprague should have learned the Countys theory during discovery and by reading its trial brief.
C
Sprague complains that the court limited his presentation of his case by continually interrupting him and preventing him from introducing evidence, all of which precluded Sprague "from presenting a coherent theory to the court." He contends the court interfered with his cross-examination rights and points to various examples of such conduct. He asserts the court (1) sustained an objection when no objection was made by opposing counsel; (2) made its own objection to one of Spragues questions; (3) did not permit Sprague to fully cross-examine the Countys witnesses; and (4) did not allow him to ask leading questions during cross-examination. He also contends the court erred in allowing the Countys attorney to "testify" during Spragues testimony in his own defense.
Sprague quotes portions of the record wherein these alleged irregularities occurred, but provides absolutely no legal authority in support of his claims that the courts actions and rulings were erroneous. And he does not demonstrate that the courts actions prevented him from introducing material evidence and that this prejudiced the outcome of the case in that it is reasonably probable a different result would have occurred absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801 [standard of prejudicial error set forth in People v. Watson (1956) 46 Cal.2d 818 applies in civil as well as criminal trials].) A showing of prejudice would require a discussion of the evidence supporting the Countys case against him and supporting Spragues defense. His briefs provide no illumination on this matter.
As discussed in part I, ante, it is Spragues burden to show error by providing adequate legal analysis and authority, and to demonstrate prejudice. Having failed to attempt to do so, his contentions are forfeited. (City of Lincoln v. Barringer, supra, 102 Cal.App.4th at pp. 1239-1240; In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
In any event, our review discloses that his contentions lack merit, as the following few examples demonstrate.
Spragues claim that the opposing counsel testified during Spragues testimony is an overstatement. In one instance, counsel simply responded to a question that Sprague asked of her during his testimony. In another instance, she clarified that the issue was not whether Sprague needed a permit to build a fence in a certain area; it was that he had built the fence on an easement belonging to the Department of Transportation. Sprague fails to explain why these brief interjections were impermissible.
Sprague also asserts the court sustained an objection when opposing counsel did not make one. But he reads the record too narrowly. Sprague was asking an office assistant with the building department questions involving the building code. The County implicitly objected by interjecting, "Are you an expert [o]n the building code?" The witness replied, "No, Im not." Thereafter, Sprague continued to ask questions beyond the witnesss area of expertise, and the court stated: "Im going to sustain the objection to that." This was not inappropriate given the Countys stated concern that the witness was not an expert in the matter being discussed. Moreover, it is entirely possible that counsel was in the midst of motioning her intention to renew her objection when the court acted as it did.
As for Spragues complaints that the court limited his right to cross-examination, improperly excluded evidence, and generally interfered with his ability to present his case, Sprague overlooks that a party cannot complain of the erroneous exclusion of evidence unless the party made known to the trial court the substance, purpose, and relevance of the evidence by the questions asked or an offer of proof. (Evid. Code, § 354.) He does not show that this occurred.
Moreover, a trial court has the inherent discretion and duty to control proceedings and to exclude cumulative evidence or evidence it deems to be unduly time consuming in relation to its probative value. (Evid. Code, § 352; cf. Pen. Code, § 1044.) Here, the court required Sprague to stay on track and stick to introducing evidence relevant to the present matter, rather than dredging up extraneous issues such as past enforcement problems with the County. The court chastised Sprague for being unprepared, stating: "This is unduly time consuming to the Court. We dont prepare our cases when we come into court. You have to ask [the witness] some more pertinent questions."
Sprague fails to establish that the court prevented him "from presenting a coherent theory to the court." Rather, the lack of coherence appears to be due to Spragues failure to prepare his case, his lack of legal experience, and the absence of a viable defense to the Countys action.
For the reasons stated above, we reject Spragues argument that the judgment must be reversed due to "procedural irregularities."
IV
Lastly, Sprague contends the trial court was biased against him.
The contention is forfeited because it is raised under argument headings unrelated to judicial bias. (Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4; rule 8.204 (a)(1)(B).) The requirement of appropriate argument headings is not a mere technical requirement; it is "designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass." (Landa v. Steinberg (1932) 126 Cal.App. 324, 325; accord,Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.)
In any event, Sprague does not meet his burden of showing bias. His contention is supported by questionable analysis, such as the following: "Judicial bias occurs where the record shows that the judges views were tainted by judicial bias that one party does not receive a fair trial." In other words, judicial bias occurs where there is judicial bias. This is circular.
The only legal authority upon which Sprague relies is of no help to him because it concerns a trial judge whose comments and behavior displayed a clear gender bias, which demonstrated a "predetermined disposition" to rule against the wife in a marital dissolution proceeding. (In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1501.) Sprague does not point to any analogous conduct by the trial court in the present case. He simply contends the number of alleged adverse rulings discussed previously demonstrate the courts bias against him. Aside from the fact he failed to establish the existence of erroneous rulings, the rulings against him do not support a charge of bias and prejudice. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796; People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1231), and "[m]ere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias" either. (People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219-1220.)
In Spragues reply brief, he contends the trial judge was biased because he is on the Law Library Board of Trustees with head counsel for the County. The argument is forfeited because it was not raised in his opening brief. (Garcia v. McCutchen, supra, 16 Cal.4th at p. 482, fn. 10; Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 764-765.) In any event, it is not persuasive.
A judges impartiality is evaluated by an objective standard; the question is whether a reasonable person would entertain doubts concerning the judges impartiality. (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another point in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349.) As the appellant, Sprague has the burden of establishing facts supporting the claim of bias. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.) He has not done so. The fact that Judge Shepard and head County Counsel are both on a law library board, without more, would not lead a reasonable person to entertain doubts about the judges impartiality.
DISPOSITION
The judgment is affirmed. Sprague shall reimburse the County of Sacramento for its costs on appeal. (Rule 8.278(a)(1).)
We concur:
SIMS, J.
HULL, J. --------------- Notes: Sprague proceeded in propria persona at trial, but he is represented by counsel on appeal.