Opinion
B306561
11-13-2023
JADA MARIE DANIEL, Petitioner and Respondent, v. ALTON JASON MURPHY, Respondent and Appellant.
Winston Kevin McKesson, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Oder Filed Date: 12/07/23
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19CHRO01373, Alison Mackenzie, Judge. Affirmed.
Winston Kevin McKesson, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ORDER MODIFYING OPINION NO CHANGE IN JUDGMENT
THE COURT*:
The opinion filed November 13, 2023, in the above-entitled matter is ordered MODIFIED as follows:
1. On page 1, in the caption, delete the word "Petitioner" and replace with the word "Plaintiff".
2. On page 1, in the caption, delete the word "Respondent" and replace with the word "Defendant".
3. On page 3, in the third full paragraph, delete "(See Schatz, Queasy as ABC (Appellate Bias Committee), Daily Journal (Oct. 31, 2023)." Replace with "(See Shatz, Queasy as ABC (Appellate Bias Committee), Daily Journal (Oct. 3, 2023).)"
4. On page 9, in the last line of the first full paragraph, delete "Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641." Replace with "(Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641.)"
5. On page 9, in the last sentence of the second paragraph, add a period to the end of the sentence before the closing quotation mark.
These modifications do not change the judgment.
CURREY, P. J.
INTRODUCTION
After a contested hearing at which the parties testified, called and cross-examined other witnesses, and had the opportunity to offer additional evidence, the trial court (Judge Alison Mackenzie) issued a five-year domestic violence restraining order (DVRO) using Judicial Counsel Form DV-130. By checking the appropriate boxes, the trial court restrained Alton Jason Murphy from harassing or contacting his former girlfriend, Jada Marie Daniel, and issued a stay-away order. The trial court also awarded sole possession of an English Bulldog named Huey to Daniel and ordered Murphy to stay away from the dog.
On appeal, Murphy contends the judgment must be reversed because the trial court (1) "committed [unspecified] judicial misconduct and violated Appellant's state and federal due process rights when he [sic] allowed his [sic] own personal bias to influence his [sic] duties as a judge" (original capitalization omitted) and (2) abused its discretion by allowing Daniel to retain possession of the dog. As discussed below, we conclude both arguments are wholly meritless. Accordingly, we affirm.
The quoted portion of Murphy's brief appears to have been cut and pasted from another brief because unquoted portions refer to a "Judge Shultz" who apparently, unlike Judge Mackenzie, is a male. Also, as noted above, the portion of Murphy's brief asserting Judge McKenzie engaged in judicial misconduct uses "he" and "his" to refer to her. Making unsubstantiated charges of judicial misconduct and bias by cribbing from another brief falls far below the high standard of practice we expect from attorneys practicing in this court. We could have issued an order to show cause why sanctions should not be issued for this misconduct, but did not. Let this be a warning, however, that we will not be so forgiving of future transgressions. We will issue an order to show cause for any similar misconduct in the future.
We limit our discussion of the background to the facts relevant to the issues presented on appeal.
Daniel filed a verified request for a DVRO on September 10, 2019. She sought protection from Murphy and asked for sole possession of the dog. In her request, Daniel explained the dog was her service animal. The trial court, Judge Michael R. Amerian, issued a temporary restraining order and set the matter for trial.
After many delays, trial commenced on January 13, 2020, before Judge Mackenzie. The trial was not held on consecutive days due to scheduling constraints. On the first day of trial, without objection, the trial court admitted Daniel's verified request for a DVRO as part of her direct testimony. The court also heard testimony from Daniel describing her relationship with Murphy and several occasions when he physically abused and injured her. During a break in the trial, Murphy approached Daniel in the hallway. After the break, the trial court heard testimony regarding the incident. On the second day of trial, February 26, 2020, two witnesses testified on Murphy's behalf. The same day, the trial court heard testimony from a third-party witness who saw an interaction between one of Murphy's witnesses and Daniel's mother in the courthouse hallway. After hearing from the third party, the trial court heard testimony from Murphy. The next trial date was originally scheduled for June 3, 2020, but the hearing was continued to June 26, 2020 because of the COVID-19 pandemic.
During the final day of trial, on June 26, 2020, Murphy testified that he purchased the dog for himself, paid for its medical bills, and paid for the certification for the dog to be a service animal. Additionally, Murphy testified the dog was his service animal. At the end of the trial, the court concluded Murphy's testimony was not credible, granted Daniel a five-year DVRO against Murphy, and did not disturb Daniel's possession of the dog.
DISCUSSION
Murphy's argument on appeal is the judgment must be reversed because the trial court: (1) was biased against him; and (2) abused its discretion by awarding custody of the dog to Daniel. We address each contention in turn.
I. Judicial Bias
Like other California appellate courts, we are committed to a judicial system that resolves disputes fairly and without favor or bias. Our canons of ethics require unbiased decisionmaking, and in recent years the elimination of bias has been a focus of the state judiciary. (See Schatz, Queasy as ABC (Appellate Bias Committee), Daily Journal (Oct. 31, 2023). In this case, however, we see no evidence of bias.
Murphy contends the trial court's statements when granting the restraining order demonstrate it was biased against him. Moreover, Murphy contends the trial court "did not act impartially" and engaged in (unspecified) judicial misconduct. These arguments are specious.
As an initial matter, we note Murphy forfeited his judicial bias claim because he did not file a motion for disqualification in the trial court. (See Code Civ. Proc., § 170.3, subd. (c)(1) [a party who believes a judge is required to disqualify himself or herself must file a disqualification motion in the trial court "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification"]; see also People v. Farley (2009) 46 Cal.4th 1053, 1110 [defendant forfeited judicial bias claim by failing to assert it below]; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218 [appellants "did not preserve their claim of judicial bias for review because they did not object to the alleged improprieties and never asked the judge to correct remarks made or recuse [her]self"].)
In any event, even if we consider Murphy's contention, it fails on the merits. As discussed below, the record does not reflect the trial court was biased, partial to Daniel, or that it otherwise engaged in any misconduct.
Arguments for reversal based on judicial bias generally are grounded in the due process clause, "which sets an exceptionally stringent standard." (Schmidt. v Superior Court (2020) 44 Cal.App.5th 570, 589.) "It is 'extraordinary' for an appellate court to find judicial bias amounting to a due process violation. [Citation.] The appellate court's role is not to examine whether the trial judge's behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge's behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial. [Citation.] Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. [Citation.] Numerous and continuous rulings against a party are not grounds for a finding of bias. [Citation.]" (Ibid.) Where there are multiple errors that are individually harmless, reversal is required where "'the cumulative effect of the errors was unquestionably to make it "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error[s]."'" (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539.)
Judges are required to perform the duties of their office impartially, competently, and diligently. (Nuno v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 810.) "Impartiality means the absence of bias or prejudice in favor of, or against, particular parties or classes of parties and the maintenance of an open mind in considering the issues presented." (Ibid.)
Murphy asserts several remarks by the trial court on the final day of trial demonstrate it was biased against him and partial to Daniel. Basically, Murphy incorrectly conflates the court's articulation of the reasons it ruled against him, and other innocuous comments by the court, with evidence the court was biased against him. If this were enough, every disappointed litigant would have a bias claim.
The first challenged comment, "We've come to the end finally." was made after the trial court heard three full days of testimony. As noted above, the trial on this DVRO application took over three months to complete. It was delayed because the COVID-19 pandemic required the court to continue one of the trial dates. It also was delayed when the trial court heard testimony from Daniel about Murphy approaching her in the court hallway. Another delay occurred when the trial court heard testimony from a third party who witnessed an incident in the courtroom hallway between Murphy and Daniel's mother. In other words, the trial of this case stretched out over a lengthy period. We see no evidence of bias in the trial judge's innocuous and factually correct comment that the case was finally ending.
The second comment, "[Murphy's] talk back to both myself and to my court reporter all of a piece of [sic] someone who does not understand what he has done, is not going to take any responsibility, has no insight into the way his behavior has damaged somebody profoundly," was made as the court rendered its ruling. When the trial court made this comment, it was discussing why it did not find Murphy's testimony credible and in that context was describing Murphy's demeanor and behavior during his testimony. Thus, the comment was entirely appropriate.
The third challenged comment, also made while the court rendered its decision, was: "Your dog. There's been more testimony about how upset you are about your dog, than about the fact that your former girlfriend suffered significant injuries which I find profoundly disturbing." The trial court was entitled to note that Murphy indicated more concern about the dog than the physical abuse and resulting injuries he had visited upon his former girlfriend. This was a permissible comment on the evidence. As noted above, Murphy's failure to acknowledge or show remorse for the painful physical abuse he inflicted on Daniel further demonstrated the need for a restraining order.
The fourth challenged comment took place during an exchange with Murphy's counsel after the trial court had rendered its decision. In our view it shows the trial judge, if anything, was very lenient with Murphy's counsel, by allowing him to carry on in this fashion:
[Murphy's attorney]: "So, your honor, the court is not ordering her to return the dog?
"The Court: "No.
[Murphy's attorney]: "So the court is sanctioning a theft?"
The Court: "Well, you call it a theft." [Murphy's attorney]: "That's what it is, your honor."
The Court: "All right. Well, that's something you can pursue in some other type of action, but here there was testimony that she wanted the dog. It's her dog. I'm keeping the dog with her."
[Murphy's attorney]: "The testimony was she wanted the dog. So she gets to steal the dog, your honor?"
The Court: "I mean this is just further -- the fact that the only thing your client cares about is an English bulldog."
[Murphy's attorney]: "I resent that. I resent the way you've approached this case from day one."
The Court: "Okay. Well."
We are surprised Murphy's counsel would cite this exchange as evidence the trial court was biased against his client. It is not. Here, Murphy's counsel was uncivil to the trial judge. She would have been well within her authority to reprimand him for it. Her forbearance was "rewarded" with baseless charges in this court that she was biased and committed unspecified judicial misconduct. Members of the bar are required to treat the judiciary and their fellow lawyers with professional courtesy. Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641.
The fifth and final exchange raised by Murphy occurred early on the final day of trial. The exchange occurred after the court sustained Daniel's attorney's relevance objection to further questioning about the dog. At that point, the trial court had stated it had heard testimony from Murphy about the dog and asked Murphy's attorney to move on from the subject. Murphy's attorney said: "Well, your honor, the only reason I want to go back is I'm trying to get the court to order the return of the dog because the dog is sick." The Court asked: "The dog has been in Ms. Daniel's care since February?" Murphy's attorney responded: "Yes." The Court then said: "So I don't think Mr. Murphy has any up-to-date knowledge about the condition of [the dog]. [¶] . . . [¶] I just don't think this is relevant. You've established that he bought the dog, and he paid for the treatment for the dog. That's all. That's all. You can move along [¶] . . . [¶] [Murphy's attorney]: Respectfully, your honor, all I'm trying to do - [¶] "The Court: I made my ruling. please move on"
None of the court's comments demonstrate or even suggest the court harbored a personal bias against Murphy or partiality for Daniel. Instead, we conclude from our review of the entire record that the trial court's treatment of the parties was fair, balanced, and free from bias. The trial court treated both sides with respect and dignity. No error has been shown.
Similarly, the record does not, as Murphy contends, show the trial court's decision to grant Daniel's DVRO and award her continued possession of the dog was based on bias, prejudice, or partiality. As discussed above, at the close of trial, the trial court discussed why it did not find Murphy's testimony credible. It was entitled to disregard Murphy's testimony about ownership of the dog and credit Daniel's. Therefore, the record demonstrates that rather than being based on bias, prejudice, or partiality, the trial court's rulings were predicated on the court's reasoned assessment of witness testimony and the law.
In sum, for the reasons discussed above, we conclude Murphy has not shown the trial court exhibited bias or partiality. Moreover, Murphy has not established that any of the above-referenced 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.'" (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1008.) Consequently, Murphy has not come close to satisfying the "exceptionally stringent standard" governing reversal based on judicial bias. (Schmidt v. Superior Court, supra, 44 Cal.App.5th at p. 589; see also People v. Freeman (2010) 47 Cal.4th 993, 996 ["[O]nly the most 'extreme facts' . . . justify disqualification based on the due process clause"].)
II. Abuse of Discretion
On appeal, we review the denial or grant of a request for a DVRO under the abuse of discretion standard. (In re Marriage of Davila &Mejia (2018) 29 Cal.App.5th 220, 226.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) Therefore, we accept all evidence supporting the trial court's findings as true and resolve the conflict in favor of the judgment. (Curcio v. Pels (2020) 47 Cal.App.5th 1, 12.) If substantial evidence supports the trial court's judgment, "reversal is not warranted even if facts exist that would support a contrary finding." (Ibid.)
"Error on appeal must be affirmatively shown by the record, and '[w]e presume the trial court knew and properly applied the law absent evidence to the contrary.'" (J.H. v. G.H. (2021) 63 Cal.App.5th 633, 644.)
Murphy contends the trial court abused its discretion by allowing Daniel to retain possession of the dog and contends its decision was unsupported by evidence. As discussed below, we conclude his contentions are meritless.
In his brief, Murphy claims Daniel "gave no testimony to her claim on the dog, yet the court still granted her custody." That is untrue. Daniel stated the dog was her service animal in her declaration attached to her DVRO application. Apparently, on that basis, the temporary restraining order awarded custody of the dog to Daniel. As noted above, Daniel's declaration was adopted as part of her direct testimony at trial. Moreover, the trial court found Murphy was not a credible witness. Thus, the court was entitled to disregard all of Murphy's testimony.
Murphy lastly argues the trial court "acted like it could make no decision relating to [Daniel allegedly] stealing the dog." This statement also misstates the record. The trial court rejected Murphy's claim and specifically ruled that the dog was to remain in Daniel's possession.
In sum, the record supports the trial court's determination that Daniel was to retain possession of the dog. We have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Marriage of Fregoso &Hernandez (2016) 5 Cal.App.5th 698, 702.) We find no abuse of discretion.
DISPOSITION
The domestic violence restraining order against Murphy is affirmed. Murphy is to bear his costs on appeal.
We concur: COLLINS, J., ZUKIN, J.