Opinion
B305480
07-27-2021
BERNADINE HARRIS, Plaintiff and Appellant, v. FABIAN PROANO, as Trustee, etc., et al., Defendants and Respondents.
Law Office of Jonathan D. Winters and Jonathan D. Winters for Plaintiff and Appellant. The Safarian Firm, Harry A. Safarian, Christina S. Karayan and Pierro H. Babaian for Defendants and Respondents Fabian Proano, as Trustee of the Proano Family Trust, Melissa Barlow, and EPLA Property Management, Inc. MacDonald & Cody, Richard S. Gower and Christian X. Przybylowski for Defendant and Respondent Deborah Wright.
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. BC700417, Malcolm H. Mackey, Judge.
Law Office of Jonathan D. Winters and Jonathan D. Winters for Plaintiff and Appellant.
The Safarian Firm, Harry A. Safarian, Christina S. Karayan and Pierro H. Babaian for Defendants and Respondents Fabian Proano, as Trustee of the Proano Family Trust, Melissa Barlow, and EPLA Property Management, Inc.
MacDonald & Cody, Richard S. Gower and Christian X. Przybylowski for Defendant and Respondent Deborah Wright.
LAVIN, J.
INTRODUCTION
Plaintiff Bernadine Harris (plaintiff) was injured when she fell in the garage of her rental home. She subsequently sued the owners and managers of the property, Fabian Proano, Trustee of the Proano Family Trust, EPLA Property Management, and Melissa Barlow, an employee of EPLA Property Management (the landlord defendants). Plaintiff also sued Deborah Wright, a fellow tenant with whom she shared the garage. The matter proceeded to trial and, after plaintiff rested, the court granted the landlord defendants' motion for nonsuit and/or directed verdict. A jury then found Wright was not liable on plaintiff's causes of action.
Proano was also named individually in the lawsuit but was later dismissed. He is not involved in this appeal in his individual capacity.
Plaintiff contends the court improperly directed a verdict in favor of the landlord defendants. We are unable to address this issue on the merits, however, because plaintiff failed to provide a complete transcript of the trial or an appropriate substitute. Plaintiff also argues the court erred in striking two verified requests to disqualify the trial judge under Code of Civil Procedure section 170.3. We have no jurisdiction to consider that argument because an order on a disqualification motion is not appealable. We also reject plaintiff's claim that the trial judge displayed judicial bias against her and deprived her of a fair trial. Accordingly, we affirm the judgments in favor of the landlord defendants and Wright.
All undesignated statutory references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL BACKGROUND
Given that we are unable to consider either of plaintiff's arguments on the merits, we provide only a brief summary of the facts and procedure.
In April 2018, plaintiff filed a complaint asserting numerous causes of action arising from an incident which occurred in the garage attached to her apartment. Plaintiff shared the garage with Wright, a neighboring tenant in the apartment building. Plaintiff generally alleged that she left her wheelchair in the garage while she left the premises and, when she returned, the wheelchair had been moved by Wright. Plaintiff fell in the garage while trying to access her wheelchair. She named as defendants Wright, the property owner (Proano, as Trustee of the Proano Family Trust), the property management company EPLA Property Management, and Melissa Barlow, an employee of EPLA Property Management. Plaintiff claimed, among other things, that the landlord defendants owed her a duty of care to maintain the property in a safe condition and failed to do so, resulting in her injury. She also alleged that Wright intentionally interfered with plaintiff's use and possession of the wheelchair, causing her injury.
The court set a mandatory settlement conference and final status conference for August 22, 2019. On August 19, 2019, plaintiff filed a verified statement requesting that the trial judge disqualify himself for cause, i.e., prejudicial bias, under section 170.3. On August 20, 2019, the court struck the statement of disqualification on the ground that it failed to set forth legal grounds for disqualification. Plaintiff filed a second verified statement requesting that the trial judge disqualify himself for cause on August 22, 2019. The court struck the second disqualification request on August 26, 2019, again finding that it failed to set forth legal grounds for disqualification.
The trial began on October 7, 2019. The following day, a jury was empaneled, counsel delivered opening statements, and plaintiff presented testimony by Wright, Proano, and a neighbor who witnessed the incident. Trial resumed on October 9, 2019. Plaintiff presented additional evidence, including testimony by defendant Barlow and by plaintiff. Plaintiff rested and some discussion occurred outside the presence of the jury regarding defense motions for nonsuit and/or directed verdict.
Plaintiff failed to include a transcript of the October 9, 2019 proceedings in the appellate record.
On October 10, 2019, proceedings resumed outside the presence of the jury. The landlord defendants moved for nonsuit and/or directed verdict and the court granted the motion, finding that “disregarding conflicting evidence and indulging every legitimate inference that may be drawn from the evidence in favor of the plaintiff … there's no sufficient evidence to substantially support a verdict … as to these defendants Barlow, Proano[ ] Family Trust, EPLA Management.” Wright brought a similar motion for nonsuit and/or directed verdict, which the court denied. All parties rested and counsel presented closing arguments.
On October 11, 2019, trial resumed and the court instructed the jury. After brief deliberations, the jury found against plaintiff and in favor of Wright on all causes of action.
Judgment in favor of the landlord defendants was filed on November 4, 2019. It appears from the appellate record that no notice of entry was served.
Judgment in favor of Wright was signed and filed on January 29, 2020. Notice of entry of that judgment was served on February 14, 2020.
Plaintiff timely appeals.
DISCUSSION
Although plaintiff's briefs purport to address numerous issues, we limit our discussion to those issues adequately presented on appeal. As to those issues, we are not persuaded by plaintiff's arguments and analysis. Accordingly, we will affirm the judgments in favor of the landlord defendants and Wright.
1.The Appellant's Burden on Appeal
The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and “it is the appellant's burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
In addition, parties must provide citations to the appellate record directing the court to the supporting evidence for each factual assertion contained in that party's briefs. When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779-801 [several contentions on appeal “forfeited” because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) Further, “an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)
Plaintiff's opening brief references several arguments that are neither developed nor properly presented in the legal argument section of the brief. For example, in the section devoted to the standard of review, plaintiff intimates that the court erred by granting a defense motion in limine to preclude testimony by her property management expert. But no argument on that point, supported by record citations and legal authority on the admissibility of expert testimony, appears later in the brief. We disregard this issue (and others which are similarly devoid of support and analysis) because we conclude plaintiff failed to carry her burden on appeal to establish error.
2. Plaintiff failed to provide a sufficient record to review the court's directed verdict in favor of the landlord defendants.
Plaintiff contends the court erred in granting the landlord defendants' motion for nonsuit and/or directed verdict. We are unable to address the merits of this argument, however, because plaintiff did not include all the trial testimony in the appellate record.
Initially, plaintiff insists that the court erred in directing a verdict in favor of the landlord defendants when, in actuality, those defendants brought a motion for nonsuit rather than for a directed verdict. For our purposes, however, the distinction is not material because the scope and standard of review are the same.
Plaintiff also suggests the court deprived her of due process by ordering a directed verdict rather than a nonsuit without notice to her. But plaintiff's written opposition to the motion for nonsuit addressed the legal standards for both types of motions. Plaintiff evidently had sufficient notice of the issue to present her arguments in her opposition.
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff['s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor.”' [Citation.] A mere ‘scintilla of evidence' does not create a conflict for the jury's resolution; ‘there must be substantial evidence to create the necessary conflict.' ” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).)
“We review the grant of nonsuit de novo. [Citation.] ‘In reviewing a grant of nonsuit, we are “guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.” [Citation.] We will not sustain the judgment “ ‘unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.' ”' (Nally, supra, 47 Cal.3d at p. 291.)” (Holistic Supplements, LLC v. Stark (2021) 61 Cal.App.5th 530, 540-541.)
In ruling upon a defense motion for a directed verdict, the trial court is guided by the same standard used in evaluating a motion for a nonsuit. (Estate of Fossa (1962) 210 Cal.App.2d 464, 466; Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 479-480.) A motion for directed verdict, like a motion for nonsuit, is essentially a demurrer to the evidence. (See Eucasia Schools Worldwide, Inc. v. DW August Co. (2013) 218 Cal.App.4th 176, 180.) “ ‘A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.]' ” (Id. at pp. 180-181.)
In order to evaluate plaintiff's claim of error, therefore, we must review all the evidence presented at trial to determine whether any substantial evidence could support a verdict in her favor. We cannot do so, however. As noted, trial proceedings began on October 7, 2019 with jury voir dire. The following day, with a jury empaneled, counsel presented opening statements and plaintiff presented three witnesses: Wright, Proano, and a percipient witness. On October 9, 2019, trial continued as plaintiff presented additional evidence including testimony by Barlow and plaintiff. At the end of the day, plaintiff rested. The following day, all defendants brought motions for nonsuit and/or directed verdict. Although the appellate record includes the transcribed proceedings from October 7, 2019, October 8, 2019, and October 10, 2019, it does not include the proceedings on October 9, 2019, the day on which the majority of the witness testimony was presented.
Generally, the failure to provide an adequate record requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; see Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) And “[i]n numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. (Maria P. v. Riles[, supra, ] 43 Cal.3d [at pp.] 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter's transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter's transcript [or] settled statement].)” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187.)
This is such a case. In the absence of a complete record of the trial proceedings, we are unable to undertake a meaningful analysis of the evidence presented at trial, as is required to evaluate plaintiff's assertion that the court granted the landlord defendants' motion for directed verdict in error.
3. Disqualification orders are not appealable. Plaintiff fails to demonstrate a due process violation.
Plaintiff insists that she was denied a fair trial because the judge presiding over the trial refused to disqualify himself under sections 170.1 and 170.3, despite two pre-trial requests from plaintiff that he do so. Plaintiff argues at length that the court displayed bias toward her, sanctioned plaintiff's counsel without cause, unreasonably required plaintiff to attend a settlement conference, purposefully set a trial date that was inconvenient to plaintiff's counsel, and prejudged her case.
Section 170.3, subdivision (d), bars plaintiff's statutory challenge to the court's disqualification orders, as it provides: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification. If the notice of entry is served by mail, that time shall be extended as provided in subdivision (a) of Section 1013.” (See also People v. Nieves (2021) 11 Cal.5th 404, 528, fn. 13 (Nieves) [noting the “statutory right to impartiality is raised through a motion to disqualify an assertedly biased judge (Code Civ. Proc., § 170.6), the resolution of which is reviewable only by writ of mandate (Code Civ. Proc., § 170.3, subd. (d))”].) We therefore disregard the bulk of legal authority cited by plaintiff, as those cases were decided in response to a petition for writ of mandate. (See, e.g., Pacific Etc. v. Superior Court (1978) 82 Cal.App.3d 72; United Farm Workers of Am. v. Superior Court (1985) 170 Cal.App.3d 97; Hollingsworth v. Superior Court (1987) 191 Cal.App.3d 22; Briggs v. Superior Court (2001) 87 Cal.App.4th 312; In re Wagner (2005) 127 Cal.App.4th 138.) Because plaintiff is not entitled to any relief on her statutory claim, we turn to her constitutional argument.
Plaintiff filed a petition for writ of mandate in this court which we summarily denied on August 29, 2019.
Plaintiff apparently contends that the court violated her right to due process under the Fourteenth Amendment to the United States Constitution. This issue may be raised on appeal notwithstanding section 170.3's statutory writ requirement. (See People v. Freeman (2010) 47 Cal.4th 993, 1000 (Freeman) [considering violation of due process rights stemming from judicial bias notwithstanding forfeiture of statutory claims].) The leading case is Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868 [129 S.Ct. 2252, 173 L.Ed.2d 1208] (Caperton), discussed by our high court in Freeman:
“According to the high court, the protection afforded a litigant under the due process clause in the realm of judicial disqualification extends beyond the narrow common law concern of a direct, personal, and substantial pecuniary interest in a case to ‘a more general concept of interests that tempt adjudicators to disregard neutrality.' (Caperton, supra, 556 U.S. at p. __ .) Where such interests are present, a showing of actual bias is not required. ‘The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.”' (Id. at p. __ .) Moreover, the court has said that ‘ “what degree or kind of interest is sufficient to disqualify a judge from sitting ‘cannot be defined with precision.' ”' (Id. at p. __ [129 S.Ct. at p. 2261.]) Nonetheless, the court has also made it abundantly clear that the due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found. (Id. at p. __ [129 S.Ct. at p. 2267.) Less extreme cases-including those that involve the mere appearance, but not the probability, of bias-should be resolved under more expansive disqualification statutes and codes of judicial conduct. (Ibid.)” (Freeman, supra, 47 Cal.4th at p. 1005.)
The extreme circumstances at issue in Caperton illustrate the heightened due process standard. There, the Supreme Court of Appeals of West Virginia reversed a trial court judgment entered following a jury verdict of $50 million. Five justices heard the case, and the vote to reverse was 3 to 2. One of the justices in the majority denied a recusal motion. The basis for the motion was that the justice had received campaign contributions in an extraordinary amount ($3 million) from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages. (Caperton, supra, 556 U.S. at p. __ [129 S.Ct. at pp. 2257-2259].)
The Court explained that the case before it was “ ‘exceptional' ” and concluded that “ ‘there is a serious risk of actual bias-based on objective and reasonable perceptions-when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.' (Caperton, supra, 556 U.S. at p. __ [129 S.Ct. at pp. 2263-2264].)” (Freeman, supra, 47 Cal.4th at p. 1004.) The Court focused on the relative size of the contribution-it was larger than the amount spent by all other contributors and 300 percent greater than that spent by the campaign committee-and the “ ‘temporal relationship between the campaign contributions, the justice's election, and the pendency of the case.... It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.' (Id. at p. __ [129 S.Ct. at pp. 2264-2265].)” (Ibid.)
Our Supreme Court has applied Caperton in a handful of cases, three of which offer helpful guidance in the present case. First, in Freeman, the defendant was tried before a judge who had previously disqualified himself based on an appearance of bias-his friendship with a judge whom the defendant was rumored to have been stalking-but who later was reassigned to the defendant's case after the stalking rumors proved unfounded. On appeal, the defendant argued that her trial before the previously disqualified judge violated her due process right to an impartial judge. The Supreme Court rejected the claim, explaining that section 170.1, subdivision (a)(6)(A)(iii) provides “an explicit ground for judicial disqualification” based on “a public perception of partiality, that is, the appearance of bias.” (Freeman, supra, 47 Cal.4th at p. 1001.) And, the Court noted, Caperton clarified that the due process clause operates more narrowly: “[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist ‘ “the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.”' (Caperton, supra, 556 U.S. at p. __ .)” (Id. at p. 996.)
Turning to the facts of the case, the court concluded in Freeman that the defendant's case did not implicate any of the concerns-such as “pecuniary interest, enmeshment in contempt proceedings, or the amount and timing of campaign contributions”-found in the U.S. Supreme Court's decisions holding that due process required judicial disqualification. (Freeman, supra, 47 Cal.4th at p. 1006.) Further, the circumstances were not so extreme as to warrant a finding of a probability of actual bias. “At most, [the judge's] decision to accept reassignment of defendant's case may have violated the judicial disqualification statutes that limit the actions that may be taken by a disqualified judge. [Citations.] But, without more, this does not constitute the kind of showing that would justify a finding that defendant's due process rights were violated.” (Ibid.)
Later that year, our high court decided People v. Cowan (2010) 50 Cal.4th 401 (Cowan), and elaborated on the showing required to establish judicial bias of constitutional dimension. “As the high court explained in Caperton, a constitutionally intolerable probability of actual bias exists only when the circumstances ‘ “would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.”' [Citation.] This inquiry is an objective one, based on whether ‘ “under a realistic appraisal of psychological tendencies and human weakness, ” the interest “poses such a risk of actual bias and prejudgment that the practice must be forbidden ….”' [Citation.]” (Id. at p. 457.)
Most recently, in Nieves, our high court considered whether multiple instances of judicial misconduct established judicial bias sufficient to violate the due process clause. There, the Court determined that the trial judge engaged in judicial misconduct by making “inappropriately disparaging and sarcastic remarks to defense counsel, impugning his performance, chastising him for improper behavior, and sanctioning and citing him for contempt in front of the jury. [¶] The trial judge also directed improper comments and questions to witnesses, openly doubting the credibility of one defense expert by asking argumentative and hostile questions and remarking on the possibility that another defense expert ‘just doesn't know what he's talking about.' When confronted with a juror who had been exposed to extrajudicial information that was likely to enhance the credibility of a prosecution expert, the trial court revealed the information to the entire jury. In the penalty phase, the trial judge needlessly reprimanded and belittled a lay witness who testified for the defense.” (Nieves, supra, 11 Cal.5th at p. 477.)
Notwithstanding the trial judge's misconduct, the court rejected the defendant's argument that the misconduct violated his due process rights. The court summarized its prior cases in this area, noting that the “ ‘controlling principle' of unconstitutional bias rests on a ‘general concept of interests' that may prevent adjudicators from remaining ‘ “disinterested in the conviction or acquittal of those accused.”' [Citations.] Though traditionally focused on pecuniary influences (Freeman, [supra, 47 Cal.4th] at pp. 1001-1002), the high court has explained that there may be a disqualifying interest in the outcome of criminal proceedings that ‘rests on the relationship between the judge and the defendant.' (Caperton, [supra, 556 U.S. at p. __] .) A judge would be unlikely to remain neutral, for example, when presiding over criminal contempt proceedings involving a defendant with whom the judge had a ‘ “running, bitter controversy.”' (Ibid.) Appellate opinions we cited in Freeman provide additional examples of bias that reflect a judge's relationship to the parties before it (Freeman, at p. 1006, fn. 4): in those cases, trial judges made inappropriate comments about women, in cases decided against women [citations], about lawyers, when the defendant was an attorney [citation], and about noncitizens, when one party was a foreign national [citation].” (Nieves, supra, 11 Cal.5th at p. 499.)
Applying the principles just summarized, we consider whether the trial judge's conduct in the present case reflects a constitutionally intolerable possibility that he harbored an interest in the outcome of defendant's trial. We conclude that it does not.
Although plaintiff's arguments are difficult to discern, she seems to argue that the trial judge exhibited bias against her in the following ways:
○ ruling on plaintiff's two disqualification requests rather than submitting them to another judge for decision (citing section 170.3, subdivision (c));
○ requiring plaintiff to attend a settlement conference;
○ sanctioning plaintiff's counsel $2,000 for discovery abuse;
○ granting defendants' motion to continue the trial and setting trial for a date that was inconvenient for plaintiff's counsel;
○ bifurcating the issues of liability and damages; and
○ attempting to coerce plaintiff's counsel into dismissing the landlord defendants by threatening to grant a nonsuit motion.
Plaintiff does not explain, however, what objective factors suggest that these decisions resulted from judicial bias. In other words, plaintiff has not identified any interest or other factor-a prejudice or a relationship with counsel, for example-that would, on an objective evaluation, suggest that the judge might have been incapable of remaining neutral. (See Caperton, supra, 556 U.S. at p. __ [explaining that due process analysis relates to “a more general concept of interests that tempt adjudicators to disregard neutrality”].)
Instead, it appears plaintiff hopes to infer that the trial judge was biased because the court ruled against her in a series of decisions. Our Supreme Court rejected a similar claim in Freeman, explaining that these sorts of assertions are addressed by section 170.1, subdivision (a)(6)(A)(iii), which provides “an explicit ground for judicial disqualification” based on “a public perception of partiality, that is, the appearance of bias.” (Freeman, supra, 47 Cal.4th at p. 1001.) The court emphasized that the due process clause operates more narrowly and, in order to fall within its scope, a party must show, based on an objective assessment of the circumstances in the particular case, that “ ‘ “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”' [Citation.]” (Id. at p. 996.) Plaintiff fails to cite any such circumstances in the present case.
In any event, the actions of the trial judge cited by plaintiff here pale in comparison to the numerous instances of judicial misconduct that occurred-and were insufficient to establish a due process violation-in Nieves. Accordingly, we reject plaintiff's due process claim.
DISPOSITION
The judgments are affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: EDMON, P.J., THOMAS, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.