Opinion
E051194 Super.Ct.No. CIVVS806759
12-28-2011
RAYMOND JOHNSON, Plaintiff and Appellant, v. MOUHIB MIKHAEL MALLOUHI et al., Defendants and Respondents.
The Law Office of Brian C. Andrews and Brian C. Andrews for Plaintiff and Appellant. No appearance for Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed.
The Law Office of Brian C. Andrews and Brian C. Andrews for Plaintiff and Appellant.
No appearance for Respondents.
I
INTRODUCTION
Raymond Johnson (Johnson) sued defendants under the Americans With Disabilities Act (ADA) of 1990 (42 U.S.C. § 12101 et seq.) for failure to provide equal access to Cost Less Market & Liquor, a convenience store in Apple Valley. In his complaint, Johnson alleged he had tried to patronize defendants' store on at least three different occasions and encountered multiple barriers to access. After a two-day court trial, the court entered judgment in favor of defendants based on its factual finding that Johnson had never visited the store.
The defendants and co-owners are Mouhib Mikhael Mallouhi, Samer Elias Salloum, and Marwa R. Mallouhi.
Johnson appeals. Defendants, acting in propria persona, did not file a respondents' brief.
Johnson argues that the trial court favored defendants and demonstrated bias against plaintiff, depriving Johnson of the right to a fair trial. Johnson also contends substantial evidence does not support the judgment.
We do not agree there was a showing of judicial misconduct justifying a new trial. Substantial evidence supports the judgment below. We affirm.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trial
1. Plaintiff's Evidence
At trial, Johnson testified that he uses a wheelchair for mobility. He visited defendants' store twice, once in June 2008, when he parked in a handicapped parking space but had problems exiting from his van because of the ramp being too high.
On both trips to the store, an unidentified person was the driver, not defendant.
Johnson claimed that, on June 15, 2008, after his first visit, he wrote a demand letter to defendants, in which he stated he had visited the store several times and had difficulties because there was no "disabled parking space." He also threatened to file a lawsuit.
About three weeks later, Johnson visited the store a second time in the afternoon. Johnson lives in San Diego and stopped for a soda in Apple Valley while on a trip to Las Vegas. Johnson again had problems with parking because another vehicle blocked his access. Johnson proffered an undated receipt for a purchase of $2.89 at the hour of 17:00 (5:00 p.m.). He did not remember who the clerk was.
Johnson had been involved in 10 other similar lawsuits in San Diego.
William Carter (Carter) testified as an expert that he possessed an Associate of Arts degree in civil engineering and had attended one year of law school. Carter's business is Daolim International. Over an eight-year period, he has testified in more than 1,000 ADA cases, about 30 involving Johnson. Carter investigated and photographed defendants' store on September 26, 2008. One of the photographs, part of exhibit 7, shows a designated handicapped parking space marked with a blue sign and an adjacent ramp. Carter observed many parking violations involving the adequacy of the sign, the parking demarcation lines, and the location of the parking space. The ramp was also not ADA-compliant because it encroached on the access aisle and was too steep. Carter estimated the cost of remediation to render the site ADA-compliant was between $350 and $2,000.
2. Defendants' Evidence and Rebuttal
It was generally agreed that defendants' store was located between seven and 10 miles from where Johnson exited the freeway. Defendants presented several witnesses, all of whom testified they had restricted mobility but had no problems with access to the store. Defendant Mallouhi testified that the cash register receipt from his store differs from the receipt proffered by Johnson, in part because the date was cut off the top.
On cross-examination, Mallouhi maintained there was blue paint used on the parking lot, indicating a disabled parking space. Carter contended there was no blue paint indicating a parking space. One of the color photographs submitted by Johnson displays a faint blue line.
B. Closing Argument
In closing argument, Johnson acknowledged that the first element of his case was to prove that he had actually patronized defendants' store. Johnson argued the evidence proved he visited the store twice and encountered barriers to access both times. Johnson repeated in detail the problems he encountered with access on his two visits. Johnson also argued the "cut" receipt was otherwise identical to the store receipt proffered by defendants and that the "cut" receipt supported an inference that Johnson had visited the store.
C. The Court's Findings and Statement of Decision
The trial court made oral and written findings. After hearing argument, the court prefaced its statements by the following qualification: "I know that the plaintiffs feel there has been some procedural unfairness because I allowed the defendants to introduce evidence that was not disclosed before trial. . . . My decision is not based on any evidence that was provided by the defense. My decision is based entirely on the evidence provided by the plaintiff. [¶] There is one exception to that and that is the receipt . . . which Mr. Mallouhi presented as evidence. That would properly be offered as rebuttal evidence" to Johnson's testimony about the receipt he proffered. Additionally, "[s]o I want you to know that this decision is based entirely upon my review of the plaintiff's case."
The court found there was "substantial doubt" Johnson had ever been to defendants' store. As summarized by the court, Johnson testified he was traveling from San Diego to Las Vegas and pulled off the freeway for a soda. He did not explain why they drove "seven to 10 miles east" on a busy street to go to defendants' store. The court concluded Johnson did not know where the store was located because he had never been there. The court also determined that Johnson testified falsely that he had written the demand letter to defendants. The court found there were substantial differences between the two store receipts. Johnson's receipt was cut, not perforated, and other variations in the receipts indicated they were from different cash registers. Citing CACI No. 107, the court stated that, based on clear and substantial evidence, it did not believe Johnson ever went to the store.
There were several opinions offered by the witnesses and plaintiff's attorney about the actual distance.
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In the written statement of decision, the court offered an explanation of plaintiff's "enterprise," in which Carter, operating as Daolim International, identifies technical violations of the ADA and a designated person with a disability visits the business and then demands a settlement from the owner. The court reiterated its finding that "based on the evidence, there was a substantial doubt that . . . Johnson had ever been to the Defendants' store" and "the Court finds that the evidence at trial supports the conclusion that . . . Johnson has never been to the convenience store which was the target of this lawsuit." The court expressed skepticism about Johnson's testimony that he had twice stopped at the store while driving from San Diego to Las Vegas because the store was about "10 miles east" of the freeway. The court also doubted that Johnson had written the demand letter to defendants and that the receipt he produced came from their store. The court concluded, "Every aspect of Raymond Johnson's testimony was contrary to the evidence." Because plaintiff did not meet his burden of proof, the court entered judgment in favor of defendants, including costs of $960.
III
DISCUSSION
Our review of the judgment is hampered by Johnson's failure to follow appellate rules, procedures, and principles. Johnson's citations to the record in his statement of the case are sparse. (Cal. Rules of Court, rule 8.204(a)(1)(C); Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) He inappropriately seeks to incorporate by reference his closing argument and closing trial brief: "An appellant cannot rely on incorporation of trial court papers, but must tender arguments in the appellate briefs. (Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.)" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 109.) Johnson misunderstands the substantial evidence rule, trying to argue that the evidence is in conflict. (Id. at p. 102.) He repeatedly asserts the trial court was wrong in its factual findings that Johnson was not a credible witness and that he did not visit defendants' store, which are issues for the trial court to decide. (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243.) Notwithstanding the deficiencies of the appellant's presentation, we have conducted a thorough review of the appellate record and, for the reasons expressed below, we affirm the judgment.
A. Substantial Evidence
The court's most significant finding below was that Johnson was not a credible witness and therefore the court disbelieved his testimony that he had patronized defendants' store. The court based this finding on several points—the distance between the freeway and defendants' store, the demand letter purportedly written by Johnson, the two differing cash register receipts, and plaintiff's overall demeanor, which the court characterized as hesitant and unsure.
Johnson argues there is no substantial evidence to support the finding. But in doing so, he disregards the well-established principles of appellate review. Where the evidence is in conflict, the appellate court defers to the determination of the jury or court as finder of fact. (See, e.g., Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968; People v. Gunn (1959) 170 Cal.App.2d 234, 238.) "'The justification commonly advanced for the rule is that the appellate court has no opportunity to observe the appearance and general bearing of the witnesses, and is thus deprived of an important aid in the determination of the value and weight to be given the testimony. "The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression."' (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 360, p. 411, quoting Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, disapproved on another ground in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287, fn. 3.)" (In re J.G. (2008) 159 Cal.App.4th 1056, 1067-1068.)
Even if we disregard the dispute about the cash register receipts and assume that Johnson's receipt was valid, we cannot substitute our deductions in place of the trial court's factual determinations. Based on the court's assessment of Johnson's credibility, the record demonstrates substantial evidence supports the court's finding that Johnson never visited defendants' store. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
B. Judicial Bias or Favoritism
As an alternative argument, Johnson argues that judicial misconduct deprived him of a fair trial. He contends the trial court favored defendants, who were acting in propria persona, and demonstrated bias against him and his claims.
A court must avoid even an appearance of unfairness pervading the record. The California Supreme Court stated in an early pronouncement: "The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand." (Pratt v. Pratt (1903) 141 Cal. 247, 252.) More recently courts have agreed that "In conducting trials, judges '"should be exceedingly discreet in what they say and do . . . lest they seem to lean toward or lend their influence to one side of the other." [Citation.]' [Citation.] Their conduct must '"'"accord with recognized principles of judicial decorum consistent with the presentation of a case in an atmosphere of fairness and impartiality."'"' [Citation.] '"The trial of a case should not only be fair in fact, . . . it should also appear to be fair."' [Citation.]" (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1002; Espinoza v. Calva (2008) 169 Cal.App.4th 1393.)
On the other hand, a judge may form an opinion based on the evidence: "When a judge's state of mind appears to be adverse to one of the parties but is based on actual observance of the witnesses and the evidence, that circumstance does not amount to prejudice disqualifying the judge from trying the action. The judge's duty is to consider and pass on the evidence and, when that evidence is in conflict, to resolve the conflict. The opinion that the judge thus forms does not amount to improper bias and prejudice." (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 245, p. 298, citing Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219, citing Kreling v. Superior Court (1944) 25 Cal.2d 305.)
Johnson protests that the trial court gave undue assistance to defendants while displaying prejudice against Johnson and his ADA claims. In particular, Johnson identifies several instances in which the court tried to clarify Mallouhi's questions or a witness's testimony. Johnson criticizes the court for independently asking some questions about the number of ADA cases Carter had worked on with Johnson. Johnson also accuses the court of holding defendants to a lesser standard of performance in conducting the litigation and allowing them to present evidence that was not disclosed in pretrial discovery. Finally, Johnson asserts the statement of decision is based on illusory differences between the two receipts and the court displays overt prejudice against Johnson, his lawyer, his expert witness, and cases involving disability access. In summary, Johnson contends he did not receive a fair trial because the trial court had preconceived ideas about disability rights cases. Consequently, the court permitted defendants multiple advantages that caused prejudice to Johnson.
We do not agree there was prejudicial judicial misconduct. Misconduct must be egregious to warrant reversal. Examples include a court's threat to prejudge a case unless the parties' daughter is withdrawn as a witness (Pratt v. Pratt, supra, 141 Cal. at p. 251), judicial remarks showing preconceived ideas about undocumented aliens (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 455), or a court's failure to act with equal decorum and courtesy toward all parties. (Haluck v. Ricoh Electronics, Inc., supra, 151 Cal.App.4th at p. 1002.)
In the present case, our careful review of the record shows the court was concerned that all parties should receive a fair trial and that defendant Mallouhi, who struggled with the English language, should be able to present his defense properly. The admission of the cash register receipt from Mallouhi was not an abuse of the court's discretion. The court's reliance on the other factors—Johnson's demeanor, the distance to the store, and the demand letter—to decide Johnson's credibility was not questionable but instead was well within the realm of judicial decisionmaking.
The trial court should probably have refrained from the irrelevant comments it made in the statement of decision about Carter's "enterprise," using Johnson as a designated plaintiff to extract settlements from targeted small business owners. However, it is clear from the record that the court based its decision on its factual determination that Johnson never actually visited the store, not on any general prejudice toward ADA claims. No egregious judicial misconduct occurred, justifying reversal.
IV
DISPOSITION
Johnson was not denied a fair trial because of judicial bias. Substantial evidence supports the trial court's factual findings. We affirm the judgment.
Defendants, as prevailing parties, shall recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
McKinster
Acting P.J.
Miller
J.