Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. DN 140837, Earl H. Maas III, Judge.
HALLER, J.
This is the third appeal by 'Isileli Tupou Mana'ia Mataele (Mataele) arising from custody disputes with his former spouse, Ashley Brittain (Brittain). The court previously awarded Brittain permanent legal and physical custody of their young daughter, and we affirmed this judgment. (Mataele II.)
Our unpublished decisions in the first two appeals are: In re Marriage of Mataele and Brittain (May 8, 2009, D052842 (Mataele I)) and In re Marriage of Mataele and Brittain (Mar. 25, 2010, D054241 (Mataele II)). For ease of reference, we shall refer to these opinions by their shortened title without the appellate file number.
In this appeal, Mataele challenges two separate postjudgment family court orders. First, Mataele contends the court erred in denying his petition for coram nobis. We determine this contention is unsupported by the factual record and applicable legal principles. Second, Mataele challenges the court's order granting Brittain's request to relocate to Texas and establishing a new expanded visitation schedule. These challenges are moot because Brittain returned to the San Diego area within six months of the move-away order, and new orders are now in place. There is no merit to any of Mataele's additional arguments.
FACTUAL AND PROCEDURAL SUMMARY
In summarizing the relevant facts and procedure, we begin with a brief background of the parties' lengthy litigation history because this information is helpful to understanding the contentions asserted in this appeal.
Mataele and Brittain met while law students and married in April 2005. Ten months later, the couple separated. At the time, Brittain was pregnant with Charlotte, who was born in September 2006. During the next two years, the couple engaged in highly contentious and protracted disputes over custody, visitation, and other related issues. Brittain was temporarily awarded sole legal and physical custody of Charlotte, and Mataele was permitted supervised visitation.
From November 2007 through August 2008, the court held several hearings on the issue of permanent custody. While these hearings were occurring, Brittain filed a request for a protective order under the Domestic Violence Prevention Act (DVPA), alleging that Mataele presented a danger to herself and her daughter. (Fam. Code, § 6200 et seq.) The court granted the motion only with respect to Brittain, and issued a three-year DVPA order (January 2008 protective order), ordering Mataele to have no contact with Brittain for three years, except for approved communications relating to child custody issues. The trial court granted the protective order based on evidence of Mataele's continued unwanted communications with Brittain, and not based on any physical abuse findings or inappropriate conduct towards Charlotte. Because it has been three years since the protective order was issued, this order has now expired.
All further statutory references are to the Family Code.
There is no information in the record whether any new protective orders have been sought or imposed.
Mataele appealed from the January 2008 protective order, and this court affirmed the order. (Mataele I, supra.)The California Supreme Court denied Mataele's petition for review in the case.
On August 28, 2008, the superior court entered a final custody judgment, granting Brittain permanent sole legal and physical custody of Charlotte based on its finding that this custody arrangement was in " 'the best interests of the minor child.' " With respect to Mataele's visitation rights, the court ordered that Mataele be provided three visits per week for two hours each, and then ordered the visits to increase to four hours per visit the next month. The court also resolved numerous other disputes, including the selection of Charlotte's last name, and ordered Mataele to pay a portion of Brittain's attorney fees.
Mataele appealed, and this court affirmed the judgment in a 23-page opinion. (Mataele II, supra.) Applying the deferential abuse of discretion standard applicable to the selection of a permanent custody plan, we concluded the court's custody order was supported by the evidence. We stated that although generally "a child's best interests are served by joint custody to permit the child to have a full and involved relationship with both parents... [, ] the inability of the parents to engage in cooperative decisionmaking, and a finding that the parents' conflicted relationship would cause detriment to the child's well-being, are valid grounds for awarding sole custody to one parent. [Citations.] [¶] The evidence in the record supports the court's conclusion that joint decisionmaking in this case was unworkable, and that as between Brittain and Mataele, Charlotte's best interest would be served by awarding sole custody to Brittain. The court's oral comments and written orders made clear that it understood the applicable legal standard and fully evaluated the parties' testimony and the evidence in the record to determine a custody arrangement that would serve the best interests of Charlotte."
We additionally rejected Mataele's contentions that: (1) the court erred in its visitation orders; (2) the court erred in ordering Charlotte to use both parents' surnames; (3) the court erred in ordering Mataele to pay a portion of Brittain's legal fees; (4) the court erred in failing to prepare a proper statement of decision; (5) the trial judge was biased; (6) our appellate review of the court's custody orders was subject to a "strict scrutiny" constitutional standard; (7) new facts required that we reconsider our prior decision on the January 2008 protective order; and (8) Brittan was not entitled to custody because of unclean hands.
The California Supreme Court denied Mataele's petition for review.
Brittain then filed a motion seeking permission to move to Texas, where she said her new spouse worked and lived. Mataele opposed the motion and sought a change in custody based on changed circumstances. Mataele also petitioned for a writ of coram nobis, seeking to overturn the January 2008 protective order and the August 2008 permanent custody judgment. Although this coram nobis petition is not part of the appellate record, Mataele says the petition was based on his claims that Charlotte's medical records showed Brittain had not been truthful about the necessity for Charlotte's numerous doctor visits and about her allegations that Mataele had harmed Charlotte. Mataele argued that the January 2008 protective order had been improperly issued because it was based on Brittain's false allegations of acts of violence against her and her daughter.
In support of these assertions, Mataele submitted his detailed declaration, discussing the evidence pertaining to the issuance of the January 2008 protective order. He also presented numerous records of Charlotte's doctor and hospital visits during the past four years (but did not lodge these documents as part of the current appellate record). Mataele stated in his declaration that in May 2009, he obtained the records and believed they supported his claims that on numerous occasions Brittain had fraudulently claimed Charlotte was sick and Brittain made these allegations to avoid visitations and fraudulently charge him with physically abusing Charlotte. Mataele claimed he did not obtain the medical reports earlier because of Brittain's "fraud" and because he "believed a doctor would be more vigilant in prescribing medication."
The court denied the coram nobis petition. Because Mataele did not designate the reporter's transcript of the hearing or ask for a statement of reasons, we have no information about the arguments made at that hearing or the court's grounds for denying the petition. We also do not have access to the underlying documents presented to the trial court because Mataele did not lodge these documents as part of the appellate record. (See Cal. Rules of Court, rule 8.224.) Mataele states in his current appellate brief that the court denied the petition because it found that even assuming the statements in Mataele's declaration were true, the facts would not have affected the court's issuance of the January 2008 protective order because the order was based on Mataele's " 'internet' " activities directed against Brittain and not on findings that Mataele had committed physical abuse against Brittain or Charlotte.
Although Mataele cites to documents contained in an original writ petition filed with this court, we have no way of determining whether those documents were the same documents before the trial court in deciding this motion.
The court then held a three-day hearing on Brittain's request to move to Texas. At the conclusion of the hearing, the court found: (1) Mataele had not met his burden to show a basis for a change of custody; (2) it was in Charlotte's best interest to remain in Brittain's primary custody; and (3) Brittain would be allowed to relocate to Texas with Charlotte. The court also set forth an expanded visitation schedule, allowing Mataele to have daytime visits with Charlotte one week every month and ordered that the visits would occur in San Diego and Texas in alternating months.
On September 8, 2009, Mataele filed a petition for writ of coram nobis in this court, reasserting similar arguments that he had made in the superior court. Mataele requested that this court order the January 2008 protective order to be "dissolved" based on his "new evidence" that Brittain had previously falsely claimed that Charlotte was sick and injured, and that Brittain had taken Charlotte to the doctor when it was not necessary to do so. This court denied the petition.
In the record, this writ petition is sometimes referred to as a petition for "coram vobis, " which is identical to a petition for coram nobis, except the former is addressed to a reviewing court. (See Betz v. Pankow (1993) 16 Cal.App.4th 931, 941, fn. 5.)
On September 15, 2009, Mataele filed a notice of appeal from the superior court's order denying the petition for coram nobis. On October 20, 2009, Mataele filed a notice of appeal from the order granting the move-away request and denying the change of custody. The appeals were consolidated.
DISCUSSION
I. Well-Settled Appellate Rules
Mataele is not represented by an attorney in this appeal. However, pro. per. litigants are held to the same standards as attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985; Kobayshi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Moreover, we take judicial notice of the fact that Mataele became a licensed California attorney in December 2009, and that Mataele has substantial experience with the appellate process, having filed numerous appeals and writ petitions with this court. We thus expect Mataele has been fully informed of, and understands, the applicable appellate rules. As a licensed attorney and officer of the court, Mataele is bound to follow these rules. We nonetheless summarize certain rules to again remind Mataele of the principles guiding our appellate review.
It is a fundamental tenet of appellate law that the lower court's judgment is presumed to be correct. We make all reasonable inferences favoring the court's order, and affirm the judgment if any possible grounds exist for the trial court to have reached its factual conclusions. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) Any ambiguity in the record is resolved in favor of the judgment. (Ibid.)
As the party seeking reversal, it is the appellant's burden to provide an adequate record to overcome the presumption of correctness and show prejudicial error. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, pp. 409-410.) Thus, an appellant who attacks a judgment or order, but supplies no reporter's transcript of the proceedings, is precluded from asserting that the evidence was insufficient to support the judgment. (City of Chino v. Jackson (2002) 97 Cal.App.4th 377, 385.) In the absence of a reporter's transcript of the trial, we cannot evaluate issues requiring a factual analysis and must presume "the trial court acted duly and regularly and received substantial evidence to support its findings." (Stevens v. Stevens (1954) 129 Cal.App.2d 19, 20; see Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.)
Similarly, an appellant who challenges an order without including the underlying written or oral motions in the appellate record waives his or her right to argue the court erred in denying the motion. Unless the error appears on the face of the record, we cannot evaluate error unless we know the evidence and arguments that were before the court at the time it issued its ruling. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
Additionally, statements of fact not supported by citations to the record are improper and cannot be considered. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Further, it is improper appellate practice to incorporate by reference arguments from other documents, even if those documents are part of the appellate record. (See Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.)
Additionally, as we explained in Mataele II, a party who challenges the factual basis of a court's conclusion must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) If the appellant fails to cite and discuss all of the relevant evidence, we may treat the issue as waived. (Ibid.)
II. Coram Nobis Relief
Mataele contends the court erred in denying his petition for writ of coram nobis.
A. Applicable Law
"The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown." (People v. Kim (2009) 45 Cal.4th 1078, 1091.) The proceeding was " 'contrived by the courts at an early epoch in the growth of common law procedure to provide a corrective remedy "because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment." ' [Citation.]" (Ibid.) "[T]he writ's purpose 'is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court' [citation]." (Ibid.)
In modern times, this remedy is strongly disfavored. (People v. Kim, supra, 45 Cal.4th at p. 1092.) Because of the availability of other remedies, the coram nobis petition is now " 'practically obsolete... except in the most rare of instances.' " (Ibid.) Additionally, in California, the writ has been used " 'almost exclusively to attack judgments in criminal cases.' " (Id. at p. 1091, fn. 9; Betz v. Pankow, supra, 16 Cal.App.4th at p. 941, fn. 5.)
To establish entitlement to relief, the petitioner has the burden of establishing three elements: " '(1) Petitioner must "show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment." [Citations.] (2) Petitioner must also show that the "newly discovered evidence... [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial." [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner "must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ." ' " (People v. Kim, supra, 45 Cal.4th at p. 1093; see Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 8-9.) A court has broad discretion in determining whether the party has met his or her burden in establishing these elements. (See People v. Ibanez (1999) 76 Cal.App.4th 537, 544.)
B. Analysis
Mataele contends the court erred in denying his coram nobis petition because "[he] satisfie[d] all prongs to grant relief...." In support, he claims Brittain engaged in numerous acts of wrongful and fraudulent conduct. However, he does not support these assertions with citations to the record. Thus, we disregard these arguments. Further, Mataele has not presented us with a record of the evidence and arguments that were before the court when it ruled on the motion. Mataele has thus not met his burden to show error, and we must affirm.
Moreover, even if we were to reach the merits of Mataele's contentions, there is no basis for concluding the court erred in denying his motion. Mataele contends he discovered new evidence in May 2009 (Charlotte's medical records) supporting that Brittain had falsely accused him of physical abuse and that Brittain had improperly taken Charlotte to the doctor on numerous occasions when Charlotte was not sick.
However, the coram nobis remedy will be granted only if the claimed new evidence would support a different result in the prior judgment. (See In re Rachel M. (2003) 113 Cal.App.4th 1289, 1296.) Mataele says the court denied the coram nobis relief because it found the new evidence would not have affected its prior determination that a protective order was necessary. The finding is supported by the record. As we stated in Mataele I, in ruling on Brittain's motion for a protective order, the court "found [Brittain] did not prove the allegations [of physical abuse] pertaining to Charlotte" and the court instead relied primarily on Mataele's Internet activities directed towards Brittain in concluding a protective order was warranted. (Mataele I, supra, italics added.)
Additionally, to satisfy the second element of coram nobis relief, Mataele was required to show "extrinsic fraud." (In re Rachel M., supra, 113 Cal.App.4th at p. 1296; see Daniels v. Robbins (2010) 182 Cal.App.4th 204, 228.) " 'The essence of extrinsic fraud is one party's preventing the other [party] from having his day in court.' " (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) In this case, Mataele had the full opportunity to participate in all the litigation of the dissolution and custody disputes, and fully participated in the proceedings leading to the January 2008 protective order. Thus, even assuming Brittain failed to disclose certain evidence about Charlotte's medical visits, these actions do not constitute extrinsic fraud supporting coram nobis relief after a final judgment. (See In re Rachel M., supra, 113 Cal.App.4th at pp. 1297-1298.)
Moreover, the court had a reasonable basis to conclude Mataele did not provide a reasonable explanation for why he could not have produced Charlotte's medical records in the prior proceedings, a required element to support coram nobis relief. (See People v. Kim, supra, 45 Cal.4th at p. 1093.) Mataele claims he trusted Charlotte's doctors and Brittain's attorney and believed that he could not obtain these records or there would be no relevant information in the records. However, the court could reasonably conclude these assertions are not sufficient to excuse a lack of diligence. Mataele was represented by counsel in prior proceedings, had legal training, and was aware of the steps to be taken to obtain evidence that was claimed to be relevant to the proceedings. He had repeatedly raised the issue of Charlotte's doctor visits in the prior proceedings and thus was on notice of the need to obtain those records if he wished to support his assertions.
The court did not err in denying the coram nobis petition. We also reject Mataele's argument the court erred in denying his new trial motion. The record does not disclose a factual or legal basis for a new trial.
III. Move-Away Order Is Moot
Mataele also contends the court erred in allowing Brittain to move to Texas with Charlotte.
In her respondent's brief, Brittain stated that Mataele's challenges to the move-away order are moot because she relocated back to the San Diego area in March 2010. Although Mataele did not file a reply brief, we gave him additional time to respond to the mootness issue. In his supplemental letter brief, Mataele did not deny Brittain had returned to the San Diego area, but argued the issue was not moot because the challenged custody and visitation orders "remained in effect."
" '[T]he duty of this court... is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court... an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' [Citations.]" (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; Giles v. Horn (2002) 100 Cal.App.4th 206, 227-228.)
Under these principles, we will not consider Mataele's challenges to the court's order approving Brittain's move to Texas. The record establishes Brittain moved back to the San Diego area in March 2010, and that the superior court has issued new visitation orders pending further hearings. The move-away order is no longer in effect and thus there is no need to reach Mataele's challenges to the order. Likewise, we will not consider Mataele's related procedural challenges to the move-away order, including the denial of a continuance and the denial of a mediation reference before the court entered the move-away order.
IV. Denial of Change of Custody
Mataele contends the court erred in refusing to grant him full custody of Charlotte. However, the argument is moot because the change of custody request was apparently based on Brittain's proposed Texas move.
Moreover, even if there was some continuing effect to the denial of the change of custody request, the record does not support that the court committed any error. Mataele did not designate any of the papers filed by the parties pertaining to the changed custody request. Nor did he designate the reporter's transcript of the three-day hearing. Without these documents in the appellate record, we are required to presume that the evidence supported the court's express and implied findings that Charlotte's best interests were served by remaining in Brittain's custody and Mataele did not meet his burden to show facts supporting changed circumstances to justify a change in the permanent custody order. (See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088-1093 [party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances]; In re Marriage of Burgess (1996) 13 Cal.4th 25, 37.)
Mataele argues the "changed circumstances test" was not applicable because the August 2008 final custody judgment was "in excess of the court's jurisdiction." In support, Mataele claims the prior judgment was intended to "punish" him and was not based on Charlotte's best interests. The argument is unsupported. As explained in our prior decision, the judgment was based on the court's determination that the custody arrangement would serve the best interests of Charlotte, and this determination was supported by the evidence.
V. Visitation
In granting Brittain's move-away request, the court granted Mataele visitation for one week each month from 9:00 a.m. to 6:00 p.m., with the visits to alternate between Texas and San Diego. The court also established numerous other rules to ensure custody exchanges would be conflict-free, and scheduled special visits for holidays. Because Brittain has moved back to California, the court has issued new visitation rules, pending a new hearing scheduled for May 2011. The court's prior visitation order has thus become moot, and there is no need for us to consider Mataele's challenges to the Texas visitation schedule.
Moreover, even if we were to reach Mataele's appellate arguments, they are without merit. As his primary contention, Mataele argues the court's visitation order was "preempted by federal law, " claiming the court denied him overnight visitation based solely on his "disability of ADHD." However, there is nothing in the record showing the court's visitation order was based on this diagnosis.
Additionally, even assuming the visitation decision was based, in part, on a condition suffered by Mataele, such an order is proper if it is in the best interest of the child. (See §§ 3020, subds. (a)(b), 3100, subd. (a); see also In re Jennifer R. (1993) 14 Cal.App.4th 704, 713.) Although the Legislature has declared liberal visitation is to be encouraged, visitation may be restricted if the evidence shows additional visitation would be detrimental to the child's best interests. (§ 3100, subd. (a).) The welfare and best interests of a child are paramount considerations for the court in determining custody and visitation. (See In re Marriage of LaMusga, supra, 32 Cal.4th at p. 1097; § 3020, subd. (a).)
The cases relied upon by Mataele do not involve custody or visitation disputes between two parents, and thus are inapposite. (See Head v. Glacier Northwest, Inc. (9th Cir. 2005) 413 F.3d 1053 [employee suing employer for disability discrimination]; Mark H. v. Lemaheiu (9th Cir. 2008) 513 F.3d 922 [education rights claims by parents of autistic daughters against state education agency]; McNely v. Ocala Star-Banner Corp. (11th Cir. 1996) 99 F.3d 1068 [employee suing employer for disability discrimination]; James v. Federal Reserve Bank of New York (E.D.N.Y. 2007) 471 F.Supp.2d 226 [denying Federal Reserve Bank's motion for reconsideration regarding the applicable statute of limitations period].)
VI. Additional Arguments
Mataele raises numerous additional arguments that have no reasonable relationship to orders challenged on this appeal. These arguments are without merit.
First, Mataele contends California's stare decisis rules are arbitrary and violate his due process rights. Although the precise nature of this argument is difficult to discern, Mataele appears to be challenging the fact that in California there is no horizontal stare decisis, i.e., we are not bound by decisions of different divisions or districts of the Courts of Appeal. (See Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193-1194.) Mataele urges this court to hold that state appellate courts should have "en banc review as the federal courts in order to maintain uniformity of the federal circuits." We reject these arguments, as Mataele provides no reasoned legal argument supporting this position. Moreover, Mataele fails to show how these arguments would advance his position in this case.
Mataele also raises challenges to California's publication rules applicable to appellate opinions (see Cal. Rules of Court, rule 8.1105) and our prior conclusions that the opinions in Mataele's previous appeals did not meet publication criteria. Because these arguments are directed to our prior decisions, they are not properly before us on this appeal. If Mataele had wanted to challenge our prior conclusions that the opinions did not meet applicable publication criteria, he could have filed a timely request for publication with this court or he could have asked the California Supreme Court to review our publication determinations. He cannot now raise the issue on this new appeal.
Mataele also contends the superior court erred by not making specific findings regarding Brittain's credibility pertaining to sexual abuse allegations. However, there is no showing that Brittain made these allegations in the proceedings before us, or that the court's rulings were based on these allegations.
Finally, we reject Mataele's numerous challenges to the court's permanent custody judgment filed in August 2008. We upheld the court's custody decision in the prior appeal. (Mataele II, supra.) Continued challenges to the order are untimely and not properly before us.
VII. Alleged Bias of Trial Judge
As he did in his two prior appeals, Mataele contends the trial judge was unfairly biased against him. In support, Mataele asserts disagreement with the court's rulings.
As we explained in our two prior appellate decisions, these arguments are not a proper basis for disqualification or to show bias. (Mataele I, supra; Mataele II, supra.) "An opinion formed by a judge as the result of a judicial hearing, even though it is adverse to a party, does not amount to bias." (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 500; see Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.) "[R]ulings against a litigant, even when numerous and continuous, do not [support] a charge of bias and prejudice." (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719.) There is nothing in the record showing the court was biased against Mataele or based its decision on irrelevant or improper factors.
VIII. Frivolous Appeal
Brittain requests that this court impose sanctions on Mataele for filing a frivolous appeal.
Code of Civil Procedure section 907 provides that "[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." An appeal is frivolous only when it: (1) is prosecuted for an improper motive, to harass the respondent or delay the effect of an adverse judgment; or (2) indisputably has no merit, when any reasonable attorney would agree that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Courts should employ sanctions " 'sparingly to deter only the most egregious conduct.' " (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.)
We agree that no reasonable attorney would conclude Mataele's appellate arguments had any merit. Mataele's contentions have been decided against him in prior appeals, and/or are wholly unsupported by the factual record and well-settled legal principles. Moreover, when we provided Mataele the opportunity to acknowledge that his challenge to the move-away order was moot, he continued to assert his challenges and misrepresented the record as to the continuing viability of the order.
We nonetheless exercise our discretion to decline to award sanctions at this time. But we strongly admonish Mataele that for any future appeals, he must follow appellate rules and he will be subject to sanctions if he asserts frivolous arguments. Mataele is a licensed attorney and should know better.
In making this observation, we do not mean to suggest Brittain is without fault in escalating the custody disputes. The record reflects that both parties bear responsibility for the continued litigation. In the future, the parties should focus on resolving their disputes in a way that promotes the best interests of their child, rather than misdirecting their financial and emotional resources toward endless adversarial litigation.
DISPOSITION
Affirmed. Appellant to pay respondent's costs on appeal.
WE CONCUR: BENKE, Acting P. J., IRION, J.