Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV067486
McAdams, J.
This is a civil action for overtime compensation and waiting time penalties, brought by appellant Ramalingam Nalin against his former employer, respondent Neeka Accountancy Corporation. Following a bench trial in 2006, the court found that appellant was an exempt employee and thus not entitled to overtime compensation.
On appeal from the judgment for respondent, appellant makes a number of claims relating to the trial evidence; he also asserts judicial bias. Finding no merit in any of appellant’s contentions, we affirm the judgment.
INTRODUCTION
Appellant worked for respondent from January 2003 until March 2005, performing accounting services. While employed by respondent, appellant worked on-site with three of its clients, including Systat Software, Inc. (Systat). At issue here is the nature of appellant’s job duties.
PROCEDURAL HISTORY
Following the termination of his employment with respondent in March 2005, appellant filed an administrative complaint with the Labor Commissioner for overtime compensation and waiting time penalties. (See Lab. Code, §§ 98, 203, 510.) The Labor Commissioner denied appellant’s claim after a hearing. Appellant then filed the superior court action that culminated in this appeal. (§ 98.2.)
Unspecified statutory references in this opinion are to the Labor Code.
Trial
The superior court action was heard as a de novo bench trial, which took place over the course of three court days in October 2006. At trial, appellant claimed entitlement to overtime pay. (§ 510.) He asserted that he spent less than half of his work time on higher-level exempt functions of an administrative nature. Respondent took the opposite view, arguing that appellant was an exempt employee under both administrative and professional exemptions. (§ 515.)
Appellant’s Evidence
Appellant gave testimony in support of his claim for overtime compensation. Concerning his work at Systat, appellant said that he “was mainly doing data entry, clerical, you know, invoicing, producing the invoice, fold the invoice, put in envelope, mailing, that took most of my time at Systat.” Appellant also testified that his “primary duty would be to update the invoice, the billing invoice, the credit card processing, customer collection, bank records and monthly finances.” On cross-examination, when asked whether he ever performed “more CFO-type functions” – apparently referring to the functions of a chief financial officer – appellant stated that “about one hour or two hours a week, [he] might get involved in the preparation of financial statements” and that once he “did a financial forecast for Systat” in connection with a loan application. He also admitted that he had given “accounting advice” to the client.
In addition to his own testimony, appellant called five other witnesses, all former coworkers. Appellant also proffered five documents, three of which were received in evidence.
Respondent’s Evidence
Respondent’s chief witness was Subra Ramanan, its chief executive officer. Concerning appellant’s duties at Systat, Ramanan testified that appellant “acted as an on-site CFO” for that client. Appellant gave the client advice “regarding tax implications” and “moving intellectual properties” from one country to another. He applied “independent judgment and analysis.” Appellant had “absolute freedom and flexibility to report, talk to anybody within Crane,” Systat’s parent company in India. At Systat, about “80 to 90 percent” of appellant’s time was “spent in performing analysis and advice as compared to just inputting data[.]”
Ramanan also described appellant’s duties at the two other clients that he serviced, Hindu Cultural Community Center and Star Microwave. At Hindu Cultural Community Center, where appellant spent “possibly half a day or a day a week”, he was charged with overseeing the organization’s treasurer, a task that required “independent analysis or judgment” by appellant. At Star Microwave, where he spent “about a day a week,” appellant likewise was performing at “a high level, providing management advisory functions to the client.”
Respondent also called Systat’s vice president, Tanveer Khateer. He described appellant’s tasks while at Systat. In addition to the testimonial evidence given by those and other witnesses, respondent submitted 33 trial exhibits, including a large number of e-mails.
Khateer’s last name is sometimes spelled Khadeer or Khader. At the time of trial, he was Systat’s vice president; during the time that appellant was working at Systat, Khateer was its general manager. Khateer appeared pursuant to subpoena.
Argument; Submission
After the presentation of evidence, the court entertained argument from both parties. The court then took the matter under submission.
Statement of Decision and Judgment
On October 24, 2006, the court issued a proposed statement of decision. In it, the court discussed the evidence and made various findings. The court expressed its opinion that appellant was “an integral component of [respondent’s] management and his dealings with [its] clients, and in particular, Systat, regularly involved the conveying of unsupervised high level financial information and extensive participation in important economic-related management decisions almost to the point that he could appropriately be considered the equivalent of the controller or Chief Financial Officer of such clients. Therefore, on both an administrative (due to, among other things, his participation in other employee hiring) and professional basis, the weight of the evidence is that [appellant] was performing exempt management duties and functions for [respondent], and as such, is not entitled to overtime compensation, nor any ‘waiting time’ penalties for the non-payment thereof.”
On November 3, 2006, the court adopted its proposed statement of decision, without change. The following month, judgment for respondent was entered.
Appeal
In January 2007, appellant filed a notice of appeal. In his briefs on appeal, appellant makes several arguments relating to the trial evidence; he also claims judicial bias. Respondent disputes all of appellant’s claims on the merits. In addition, it raises two procedural questions, which we consider at the threshold.
THRESHOLD ISSUES
Two preliminary issues are presented. The first concerns the scope of the appellate record; the other relates to forfeiture of appellant’s evidentiary claims.
Record on Appeal
Attached to appellant’s opening brief are a number of documents, including several post-judgment “affidavits” appended at tabs 6, 7, and 8. Respondent objects to those particular attachments, arguing that they are an improper attempt to place post-judgment evidence before us. Respondent further complains that those and other attachments are not verified.
Respondent’s objections are well taken.
As for the documents at tabs 6, 7, and 8, they constitute an improper attempt to present post-judgment evidence to this court. “Appellate courts rarely accept postjudgment evidence or evidence that is developed after the challenged ruling is made.” (In re Robert A. (2007) 147 Cal.App.4th 982, 990, citing In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414.) “This is so in part because an appeal court reviews the correctness of a record that was before the trial court at the time it made its ruling.” (In re Robert A., atp. 990.) We see no reason to depart from that rule here. We shall not consider the documents appended to appellant’s opening brief that post-date the judgment. (Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2.)
As for the other attachments, they likewise are improper, for several reasons. First, appellant made no formal request to augment the appellate record with those items, as required by court rule. (Cal. Rules of Court, rules 8.54, 8.155.) Furthermore, with the exception of duplicative copies of some trial exhibits, appellant also failed to show that the appended documents “actually were lodged or filed with the trial court.” (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 827, fn. 1.) Finally, none of the appended documents has been authenticated. (Cf. Kyle v. Carmon (1999) 71 Cal.App.4th 901, 906, fn. 2 [unofficial reporter’s transcript improper].)
For all of these reasons, the attachments to appellant’s brief are improper, and we shall disregard them.
Forfeiture
As respondent aptly observes, a party raising an appellate challenge to the sufficiency of the evidence must summarize all of the material evidence on the point or risk forfeiture of the claimed error. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 749-750.)
In this case, appellant presents a one-sided discussion of the evidence, which is neither helpful nor effective. Even so, he at least mentions respondent’s testimonial and documentary evidence, if only to disparage it. For example, concerning testimonial evidence, he argues “that the Court erred in giving improper weight to the testimony of Subra Ramanan, CEO and President of the Respondent in comparison to the testimony of the Vice-President” of Systat, Tanveer Khateer. Likewise, regarding documentary evidence, appellant asserts “that very little weight, if any, should have been afforded the e-mail evidence” proffered by respondent.
Under these circumstances, we elect to address appellant’s evidentiary claims on the merits.
DISCUSSION
As noted above, appellant asserts both evidentiary and bias claims on appeal.
I. Evidentiary Claims
Taking up appellant’s evidentiary claims first, we begin by summarizing the relevant principles of law.
A. Labor Law Principles
1. Overview
“A complex scheme of overlapping statutes, regulations, interpretations and precedent governs the compensation of employees in California.” (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007), Compensation, ¶ 11:2, p. 11-1.) That includes both federal and state law. (Ibid.)
2. State Statutes Governing Overtime Compensation and Waiting Time Penalties
Generally speaking, California employers are required to pay overtime compensation for work in excess of 8 hours a day or 40 hours a week. (§ 510, subd. (a).) Some employees are exempt from overtime laws, however. (See § 515, subd. (a).)
An employer that “willfully fails to pay” any wages when due is subject to penalty wages, also known as waiting time penalties. (§ 203; Mamika v. Barca (1998) 68 Cal.App.4th 487, 489.) The statute applies to overtime wages. (Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, 1492 [“if appellant is entitled to overtime compensation, he is entitled to penalty wages as well”].)
3. State Regulatory Authority
California’s Industrial Welfare Commission (IWC) “is the state agency empowered to formulate regulations (known as wage orders) governing employment in the State of California.” (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 561; see § 1173.) The IWC “is authorized to promulgate orders regulating wages, hours, and conditions of employment for employees throughout the state.” (Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561.)
4. Exempt Employees
The Industrial Welfare Commission has authority to establish exemptions for executive, administrative, and professional employees, subject to limitations set forth in the authorizing statute. (§ 515, subd. (a).) Exemptions are proper only where “the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” (Ibid.; see generally, Chin et al., Cal. Practice Guide: Employment Litigation, supra, ¶¶ 11:346 to 11:402, pp. 11-60 to 11-67.)
As relevant here, the Industrial Welfare Commission has promulgated Wage Order 4-2001, which generally governs “all persons employed in professional, technical, clerical, mechanical, and similar occupations….” (Cal. Code Regs., tit. 8, § 11040, subd. (1).) It provides exemptions from certain labor law requirements, including overtime, for “persons employed in administrative, executive, or professional capacities.” (Id., subd. (1)(A).)
The wage order sets forth detailed requirements for the exemptions. (Cal. Code Regs., tit. 8, § 11040, subd. (1)(A)(1), (2), (3).) Among other things, an employee must be “primarily engaged” in exempt duties. (Id., subd. (1)(A)(1)(e); subd. (A)(2)(f); subd. (A)(3)(b).) That means that “more than half of his or her work time is devoted to such duties.” (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 562; § 515, subd. (e).) In determining whether an exemption applies, the focus of the inquiry is on the particulars of the job, not simply the job title. (Perine v. ABF Freight Systems, Inc. (C.D.Cal. 2006) 457 F.Supp.2d 1004, 1012.) Typically, the inquiry presents a factual question. (Ibid.)
5. Procedural Rules
As the California Supreme Court has explained, “under California law, exemptions from statutory mandatory overtime provisions are narrowly construed.” (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794.) “Moreover, the assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee’s exemption.” (Id. at pp. 794-795.)
B. Principles Governing Appellate Review
To establish the proper framework for our analysis, we describe the standards by which we review the trial court’s determinations, both factual and legal. As explained below, our review is constrained by the substantial evidence rule.
1. The Trial Court’s Factual Determinations
Here, as in many cases, the “trial court’s decision is predominantly based upon questions of credibility, weighing conflicting evidence and drawing reasonable inferences from the voluminous evidence presented.” (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1254.) The trier of fact is the exclusive judge of the credibility of the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314; Regents of University of California v. Sheily, supra, 122 Cal.App.4th at p. 833.) In that role, the trial judge may reject any evidence as unworthy of credence, even uncontradicted testimony. (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660.)
When “the evidence is in conflict, the appellate court will not disturb the findings of the trial court. The court must consider the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference and resolving conflicts in support of the judgment.” (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 561.) “Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
2. The Trial Court’s Application of the Law to the Facts
We review appellant’s claim that the court misapplied the governing law to the facts of this case under the same deferential review standard. In the words of one court, an employee’s exempt status “is a factual issue which this court reviews under the substantial evidence rule.” (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 561; see also Perine v. ABF Freight Systems, Inc., supra, 457 F.Supp.2d at p. 1012.) In the view of another court, whether an individual is “an exempt administrative employee presents a mixed question of law and fact because it involves the application of legal categories.” (Eicher v. Advanced Business Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1369.) Where a mixed question of law and fact is presented on appeal, the standard of appellate review depends on whether “application of the rule of law to the facts requires an inquiry that is essentially factual….” (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800, internal quotation marks omitted; Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176.) If the inquiry is essentially factual, the substantial evidence rule applies. (Ghirardo, at p. 800; Connerly, at p. 1175.) If not, “the question should be classified as one of law and reviewed de novo.” (Ghirardo, at p. 801, internal quotation marks omitted.) In this case, factual questions predominate. Substantial evidence review thus is proper here.
3. Operation of the Substantial Evidence Rule on Appeal
As a reviewing court applying the substantial evidence rule, “our authority begins and ends with a determination whether, on the entire record, there is any substantial evidence—that is, of ponderable legal significance, reasonable, credible and of solid value—contradicted or uncontradicted, which will support the judgment. As long as there is such evidence, we must affirm.” (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 561, internal quotation marks omitted; see also, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.) “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
C. Analysis
With the foregoing principles in mind, we address each of appellant’s evidentiary claims in turn.
1. Reliance on “matters not given in evidence”
Appellant takes issue with the evidentiary basis for two of the trial court’s express findings concerning his job duties, characterizing those parts of the judgment as improperly based on matters not in evidence.
Appellant first attacks the court’s statement that his employment background, which “included strategic planning, would raise doubts” that appellant performed “a purely bookkeeping function.” Appellant contends that neither his résumé nor any other evidence supports that finding.
We disagree. In the first place, appellant’s own résumé – which was in evidence at trial – states that he had “full responsibility for the strategic planning, development and leadership of the entire corporate finance” group for his former employer, a “$100 million supermarket chain with a workforce of 350.” He confirmed that fact while testifying. When appellant applied for a position with respondent, he made his experience known. Furthermore, respondent submitted a work visa application for appellant, which included responsibilities consistent with his prior experience. In combination, that evidence supports the inference drawn by the trial judge – that appellant’s background undercuts his claim that he primarily performed mundane tasks while working for respondent. (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 574 [“the fact finder was free to draw contrary inferences” from those proffered by appellant].)
Appellant next challenges the court’s statement describing “ ‘his involvement and interaction with accountants, auditors, insurance agents, sales staff, upper management [of Systat], including direct contact with the parent company’s Chief Executive, Chief Financial Officers and Board of Directors in India’ ” as “ ‘inconsistent with such a … manual bookkeeping function.’ ” Appellant argues that there is no evidence that he “had ever had any contact or dealings” with the parent company’s chief executive or its board members. He further argues that his dealings with the other people mentioned “are congruent with his duties to assist in the preparation of financial statements.”
We reject that argument. As Ramanan testified, appellant had “absolute freedom” to “talk to anybody” at Crane, Systat’s parent company in India. Even assuming that appellant had no direct contact with Crane’s chief executive or board, the court was entitled to infer from appellant’s undisputed dealings with the other listed individuals that he held a position of greater authority than he claimed. Where evidence is susceptible of more than one reasonable inference, we accept the one reached by the trial court. (Scott v. Pacific Gas & Electric Co., supra, 11 Cal.4th at p. 465; Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 561.)
2. Application of the law to the facts and weighing of the evidence
Appellant argues that his trial evidence showed that “his primary duties” for respondent “did not qualify him as an exempt employee under California state law.” He faults the court for not crediting that evidence.
In appellant’s words, “the Court was in error in failing to properly weigh the evidence” adduced through the testimony of six named witnesses. More specifically, he claims the court accorded too much weight to Ramanan’s testimony and not enough to other testimonial evidence more favorable to appellant’s position. Appellant also contends that the court mistook his “diligence and use of initiative in his work” as “the equivalent of performing ‘high-level’ functions.” Additionally, appellant attacks the court’s finding that he participated in employee hiring. Overall, appellant submits, “on a preponderance of the oral evidence, it was unreasonable for the Court” to conclude that he was part of respondent’s management team.
Appellant repeats similar weight-of-the-evidence arguments throughout his opening brief. At page 19, for example, he urges that the trial court “placed too much emphasis on the contents of the H-1B Visa application and not enough” on other evidence. And at page 23, he employs a similar tactic in attacking the court’s finding that he assisted in proposing company policy. As explained above, such arguments are entirely unavailing. As a reviewing court, we have “no power to … determine where the weight of the evidence lies.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
We reject appellant’s view of the evidence.
First, as respondent points out, the trial court had a reasonable basis for discounting the accounts given by appellant’s witnesses. Under the general rules of evidence, “the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including” the “extent of his opportunity to perceive any matter about which he testifies” and the “existence or nonexistence of a bias, interest, or other motive.” (Evid. Code, § 780, subds. (d), (f).) Here, some of appellant’s witnesses had limited opportunity to observe his work at Systat, while others were embroiled in litigation with respondent. It is “decidedly the province of the trial court to assess [the] credibility” of a party or other witness. (Regents of University of California v. Sheily, supra, 122 Cal.App.4th at p. 833.)
Furthermore, as respondent also observes, appellant ignores the contrary – and substantial – evidence put forth by respondent, including facts adduced through Systat’s vice president, Khateer. That evidence includes trial exhibit 4, which describes appellant’s services to Systat as including “overall support and direction for financial planning”; “analyzing accounts”; and occasionally participating “in management meetings … to help formulate strategies and help us arrive at key decisions for our company.” Exhibit 4 further states: “It is our belief that the nature of his work required using some managerial discretion and judgment on the job” as well as “advanced knowledge” of accounting. When Khateer was asked during his trial testimony whether Systat was “relying on” appellant for such functions as “running [its] finances, reporting, compiling the appropriate information, prepar[ing] the reports,” he replied: “Completely.” The foregoing evidence supports the judgment, particularly when taken together with Ramanan’s testimony and other evidence before the court.
3. Reliance on “contradictory or untruthful evidence”
In pressing his third evidentiary claim, appellant again targets Ramanan’s testimony, attacking it on three different grounds. As we now explain, none has merit.
Appellant starts with the assertion that Ramanan’s testimony was the “only testimony that tends to assist the Respondent’s case….” That claim is untenable. As just explained, respondent also supported its case with testimonial evidence given by Khateer and with ample documentary evidence.
Appellant next posits that parts of Ramanan’s testimony actually demonstrate that appellant “was involved primarily in data entry duties.” Using that premise as a springboard, appellant repeats his contention that his engagement in mundane duties, such as invoicing, “is inconsistent with the idea that he was also a senior level manager.” The contention does not withstand scrutiny. Evidence that appellant performed some routine tasks is not inconsistent with the court’s conclusion that his other, primary duties qualified appellant as an exempt employee. An employee is “primarily” engaged in exempt employment “if more than half of his or her work time is devoted to such duties.” (Nordquist v. McGraw-Hill Broadcasting Co., supra, 32 Cal.App.4th at p. 562; § 515, subd. (e).) Here, the trial court implicitly determined that appellant was primarily engaged in tasks that qualify for the exemption from overtime. Taken as a whole, this record provides no basis for reversing that implicit finding.
Lastly, appellant claims that Ramanan gave contradictory and even “untruthful” testimony, offering as proof the post-judgment documents appended to his opening brief. Those claims fail as well. In the first place, they rely on documents that appellant impermissibly attached to his opening brief, which are not cognizable in this appeal. Moreover, even assuming that the appellate record showed instances of contradictory testimony, credibility determinations are for the trial court. (People v. Jones, supra, 51 Cal.3d at p. 314; Regents of University of California v. Sheily, supra, 122 Cal.App.4th at p. 833.)
4. Consideration of objectionable “self-serving” documentary evidence
As his final evidentiary claim in this court, appellant takes issue with the court’s consideration of certain documentary evidence, chiefly a series of e-mails. In this court, appellant “disputes that he sent some of the e-mails” and he also objects that respondent “was seemingly allowed to mine” his e-mail correspondence selectively, in order to “assist its case” – without providing all of the e-mails to him. In a now-familiar refrain, appellant also asserts “that very little weight, if any, should have been afforded the e-mail evidence … since, conceivably” that evidence was one-sided in respondent’s favor.
As respondent points out, appellant forfeited his objection to the e-mail evidence by failing to interpose an objection in the trial court. (Evid. Code § 353, subd. (a); People v. Ramos (1997) 15 Cal.4th 1133, 1170.) As for appellant’s claims about the proper weight to be given to the e-mail evidence, we repeat: that decision was for the trial court, and we will not disturb it on appeal. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
5. Conclusion
To sum up, we reject all of appellant’s evidentiary claims. Having reviewed the record in its entirety, we find it sufficient to support the trial court’s determination that appellant was exempt from the overtime laws.
II. Judicial Bias Claim
We now turn to appellant’s claim of judicial bias. As before, we first summarize the relevant principles of law. We then apply them to the facts of this case.
A. Legal Principles
Litigants have “a due process right to an impartial trial judge under the state and federal Constitutions.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111; see also, e.g., Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another point by Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349; Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 245.) That right extends not only to criminal defendants but to civil litigants as well. (People v. Scott (1997) 15 Cal.4th 1188, 1206.)
Bias may be shown where, for example, “a judge reveals preconceived ideas based on stereotypes.” (Hall v. Harker, supra, 69 Cal.App.4th at p. 843.) “The presence of judicial partiality is, of course, most pernicious where … it bears directly on the matter to be decided.” (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 245.) On the other hand, as the California Supreme Court has explained: “Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias.” (People v. Guerra, supra, 37 Cal.4th at p. 1111.)
B. Appellate Review
“A judge’s impartiality is evaluated by an objective, rather than subjective, standard.” (Hall v. Harker, supra, 69 Cal.App.4th at p. 841.) The question is whether a reasonable person “would entertain doubts concerning the judge’s impartiality.” (Ibid., internal quotation marks omitted.) On appeal, we undertake a “review of the record” to determine whether the appellant “was deprived of his constitutional right to a fair and impartial tribunal.” (People v. Guerra, supra, 37 Cal.4th at p. 1112.) Our task is to “assess whether any judicial misconduct or bias was so prejudicial that it deprived [him] of a fair, as opposed to a perfect, trial.” (Ibid.,internal quotation marks omitted.) Reversal is required where judicial bias made it “ ‘impossible for [a party] to receive a fair trial.’ ” (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 245.)
C. Analysis
According to appellant, “several incidents arising during the proceedings give rise to an apprehension of bias by the Court toward the Respondent.” “In particular,” he argues, “the Court improperly inserted itself” on respondent’s behalf “on numerous occasions.” Appellant also argues that the court gave respondent’s counsel “enormous latitude in his examination, far more than that afforded” his own trial counsel.
The record belies appellant’s assertions. His bias argument “depends on a selective, out-of-context reading of the record.” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 575.) Read as a whole, the trial transcript clearly shows the court’s attempts to understand the issues presented by both parties while permitting both attorneys to try their cases, within the rules of evidence. In other words, the court was engaged – as is particularly appropriate in a bench trial – but nevertheless fair, presiding over the trial without apparent bias toward either side.
1. The court was properly engaged in the proceedings.
At various points in the trial, the court did intervene in the proceedings. But as the record makes clear, the court did so in order to clarify its understanding of the evidence. For example, during appellant’s direct testimony, the court interrupted his counsel’s questioning to ask whether appellant had been “prevented from taking” California’s certified public accountant examination or whether the test instead “was waived.” Again, during appellant’s cross-examination, the court interjected itself in order to make sure that a proper foundation had been laid for one of the e-mails proffered by respondent.
2. The court accorded fair treatment and equal latitude to both sides.
The trial transcript demonstrates the court’s even-handedness in dealing with the attorneys’ presentation of evidence. One example of that took place during the testimony of appellant’s witness Ami Shah. Appellant’s redirect examination of Shah drew respondent’s objection, based on lack of foundation that the witness had personal knowledge of appellant’s duties at Systat. In ruling on the objection, the judge explained that he needed the witness to “give me a true picture of her understanding of his functions” and to explain “her source of information for all of this.” Further redirect examination of Shah drew respondent’s objection that the questions exceeded the scope of cross-examination. The judge patiently explained that Shah’s redirect testimony on the point was properly limited to her contact with appellant “during that 15 days” that she had worked him, as stated in her cross-examination testimony. The judge also said: “I tried to give you some guidance within the parameters of redirect to try and address some of my concerns.” The judge later gave appellant’s counsel some latitude in this area, overruling respondent’s objection and permitting a more broad-ranging question about how the witness was “in a position to know what kinds of duties” appellant had at Systat.
A second example of the court’s equal treatment of the attorneys took place during appellant’s cross-examination of Systat’s vice president, Tanveer Khateer. Respondent’s attorney objected to one question (and accompanying commentary) on the ground that it misstated the witness’s testimony. The judge overruled the objection, saying: “Well, again this is cross-examination. I’m going to give him some latitude.” Contrary to appellant’s claims, we see no basis for inferring that the court favored respondent in presenting evidence or in ruling on objections. (Cf. People v. Guerra, supra, 37 Cal.4th at p. 1112 [“a trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias”].)
The record of this three-day trial is replete with examples such as those recounted above, which show that the court treated both attorneys fairly and even-handedly. None of the cited instances of judicial conduct during the trial demonstrates bias on the judge’s part. That includes appellant’s attempt to compare the court’s indulgence in allowing counsel for respondent to sit during closing argument and its refusal to allow counsel for appellant to interrupt cross-examination of his client. As respondent aptly observes: “One has nothing to do with the other.”
3. Conclusion
In sum, our review of the trial transcript convinces us that the judge did not exhibit bias. The court was appropriately engaged in the proceedings, and it treated both sides fairly. “The record does not suggest the judge based [his] ultimate verdicts on anything but the evidence properly presented at trial.” (People v. Scott, supra, 15 Cal.4th at p. 1206.) Appellant received a fair trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.