Marriage of Golka

















Filed 2/21/13 Marriage of Golka CA4/3











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

In re the Marriage of DOREEN and DANIEL GOLKA.
DOREEN GOLKA, Respondent, v. DANIEL GOLKA, Appellant.	G045882 (Super. Ct. No. 09D009609) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Michael J. Naughton, Judge. Affirmed.

Daniel Golka, in pro.
per., for Appellant.

No appearance by
Respondent.



* * *

INTRODUCTION

In April 2011, judgment
was entered dissolving the marriage of Daniel Golka and Doreen Golka.href="#_ftn1" name="_ftnref1" title="">^[1] Pursuant to Daniel and Doreen’s stipulation,
the judgment resolved all issues between them, including issues related to
support, custody, and visitation, except for one—whether the trial court should
award to either party attorney fees, costs, or sanctions. Following trial on the issue of attorney
fees, costs, and sanctions, the court entered a judgment ordering Daniel to pay
sanctions “related to his conduct,” in the total amount of $45,000 (the
judgment on the reserved issue). The
judgment on the reserved issue further directed that the sanctions be paid
directly from the escrow account containing Daniel’s share of the proceeds from
the sale of the family residence. The
trial court denied Daniel’s motion for a new trial.

We affirm the judgment
on the reserved issue. For the reasons
we will explain, we reject each of Daniel’s contentions of error and hold that
(1) sufficient evidence supported the sanctions award; (2) the sanctions
award did not impose an unreasonable financial burden on Daniel; (3) the
trial court did not deprive Daniel of a fair trial by denying him the href="http://www.fearnotlaw.com/">rights to present evidence, cross‑examine
witnesses, and testify on his own behalf; and (4) the trial judge did not
demonstrate “bias and prejudice” against self‑employed businessmen in
general or against Daniel specifically.



BACKGROUND

Pursuant to Daniel and
Doreen’s stipulation, judgment was entered dissolving their marriage and
resolving the issues of child support, custody, and visitation as to their two
minor children, as well as spousal support and the division of property. The judgment reserved one issue, stating: “The issue of attorney fees, sanctions and
costs shall be heard at trial on April 5,
2011.”href="#_ftn2" name="_ftnref2"
title="">^[2]

Doreen filed a trial
brief on the issue of attorney fees, costs, and sanctions, arguing, inter alia,
that the trial court should award her sanctions under Family Code
section 271, on the ground Daniel’s conduct in the marital dissolution
action had frustrated the policy of the law to promote settlement of
litigation. (All further statutory
references are to the Family Code unless otherwise specified.) Daniel also filed a trial brief on the issue
of attorney fees, costs, and sanctions, in which he requested an order
requiring Doreen to pay some, if not all, of his attorney fees and costs under
sections 2030 and 2032, because Doreen was employed and Daniel was not
earning any income from his business. He
also requested that Doreen be ordered to pay sanctions pursuant to
section 271.

Following trial, the
court issued a minute order stating,
inter alia, “[t]he court did not believe [Daniel]’s testimony and with clear
and unconvincing [sic] evidence,
rules on the side of mistrust. The court
notes the failure of [Daniel] to produce bank statements and they suddenly
appear as exhibits.” The minute order
further stated the court “finds a failure to disclose and produce as in [>In re M]arriage of Feldman [(2007) 153 Cal.App.4th 1470]” and
ordered Daniel “to pay $15,000 of the accountant fees payable directly to the
accountant and $30,000 in attorney fees payable directly to the attorney for
[Doreen].” (Italics added.)

The trial court entered
the judgment on the reserved issue, requiring Daniel “to pay sanctions related
to his conduct in the sum of $15,000.00 to [Doreen’s expert forensic
accountant] and the sum of $30,000.00 to [Doreen’s attorney’s office].” The judgment on the reserved issue
stated: “The sanctions totaling the sum
of $45,000.00 shall be paid directly from escrow from [Daniel]’s share of the
proceeds from the sale of the family residence.” It further stated Daniel and Doreen had
stipulated they would each bear their own attorney fees and costs.

Daniel filed a document,
entitled “Objection to Proposed Judgment on Reserved Issues and Notice of
Intent to Move for New Trial,” in which he argued a new trial should be ordered
because (1) the court’s tentative ruling “was made by reason of the
surprise and excusable neglect of [Daniel] and his counsel in not providing the
Court with all of the facts in order that the Court could make [a] reasonable
and fair ruling regarding sanctions”; (2) “[i]rregularity in the proceedings of
the Court and the adverse party and abuse of discretion which prevented a fair
trial”; (3) “[t]he Court’s sanctions Order of a total of $45,000.00 is,
under the facts, excessive, arbitrary and capricious”;
(4) “[i]nsufficiency of evidence to justify the decision”;
(5) “[Daniel] did everything in his ability to comply with all prior
discovery requests of [Doreen] and [Doreen]’s counsel”; (6) “[t]he Trial
Court apparently believed that [Daniel] had earnings of $11,000.00 per month, when
in fact [Daniel] had no earnings, in that his prior business was completely
defunct”; (7) “[t]he Trial Court apparently believed the unsupported
statements of [Doreen]’s counsel regarding [Daniel]’s income and ability to
pay; and regarding [Daniel]’s purported failure to comply with prior discovery
rulings”; and (8) “[e]rror at law.”


The following day,
Daniel filed another document, entitled “Supplemental Objections to Proposed
Judgment on Reserved Issues and Declaration of Daniel Golka.”href="#_ftn3" name="_ftnref3" title="">^[3] In that document, Daniel asserted one of the
attorneys who had represented him at the beginning of the marital dissolution
action had told Daniel the trial judge “was a close personal friend of his” and
that the attorney had given a toast at the judge’s 60th birthday party. Daniel also asserted his former attorney
“assured [him] of a favorable outcome in the divorce proceedings.” Daniel’s supplemental objections described
various alleged misdeeds by his former attorney during his representation of
Daniel. Daniel stated his former
attorney later successfully withdrew from representing Daniel and sued him to
recover unpaid attorney fees. Daniel
further stated that at the trial on the reserved issue, “Judge Naughton
demonstrated bias against me. He would
not allow me to testify fully regarding my financial situation; and he would
not allow me to testify that I was not making any money; and he would further
not allow me to testify that I had no assets with which to pay for an expert,
or for legal fees, or for sanctions.” He
also stated the trial judge had never disclosed his close friendship with
Daniel’s former attorney, and Daniel believed it was “very curious that, after
[he] was sued by [his former attorney], . . . Judge Naughton
made an award of $45,000 for sanctions against [him].”href="#_ftn4" name="_ftnref4" title="">^[4] He stated he could not afford to support
himself or his children after paying the sanctions award required by the
judgment on the reserved issue.

Daniel filed a
supplemental memorandum of points and authorities, which quoted unauthenticated
postings on the Internet, containing general criticisms of the trial judge who
presided over this case.

The trial court denied
the motion for a new trial.href="#_ftn5"
name="_ftnref5" title="">^[5] Daniel filed a notice of appeal, stating he
appealed from the order denying the motion for a new trial and the judgment on
the reserved issue. An order denying a
motion for a new trial, however, is not directly appealable, but is reviewable
on appeal from the underlying judgment.
(Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)href="#_ftn6" name="_ftnref6" title="">^[6]



DISCUSSION

I.

Substantial Evidence Supported the Trial Court’s Sanctions Award.

Daniel argues
insufficient evidence supported the trial court’s finding he engaged in
sanctionable conduct. He also argues the
trial court’s sanctions award under section 271 was erroneous because it
imposed an unreasonable financial burden on him.

“Section 271
authorizes an award of attorney fees and costs as a sanction for uncooperative
conduct that frustrates settlement and increases litigation costs.” (In re
Marriage of Fong (2011) 193 Cal.App.4th 278, 290.) Section 271, subdivision (a) provides:
“Notwithstanding any other provision of this code, the court may base an
award of attorney’s fees and costs on the extent to which the conduct of each
party or attorney furthers or frustrates the policy of the law to promote
settlement of litigation and, where possible, to reduce the cost of litigation
by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs
pursuant to this section is in the nature of a sanction. In making an award pursuant to this section,
the court shall take into consideration all evidence concerning the parties’
incomes, assets, and liabilities. The
court shall not impose a sanction pursuant to this section that imposes an
unreasonable financial burden on the party against whom the sanction is
imposed. In order to obtain an award
under this section, the party requesting an award of attorney’s fees and costs
is not required to demonstrate any financial need for the award.”

“We
review an award of attorney fees and costs under section 271 for abuse of
discretion. [Citation.] ‘Accordingly, we will overturn such an order
only if, considering all of the evidence viewed most favorably in its support
and indulging all reasonable inferences in its favor, no judge could reasonably
make the order. [Citations.]’” (In
re Marriage of Fong, supra, 193
Cal.App.4th at p. 291; see In re
Marriage of Eben‑King & King (2000) 80 Cal.App.4th 92, 122 [the
trial court has broad discretionary authority under section 271].) “‘“We
review any findings of fact that formed the basis for the award of sanctions
under a substantial evidence standard of review.”’” (In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 995.)

Here,
citing In re Marriage of Feldman, >supra, 153 Cal.App.4th 1470, the trial
court’s minute order awarding sanctions was expressly based on Daniel’s failure
to timely disclose and produce bank statements; the court noted that the statements
“suddenly appear[ed] as exhibits,” and did not find Daniel’s testimony to be
credible. In In re Marriage of Feldman, the appellate court affirmed the trial
court’s award of sanctions in the amount of $250,000 and attorney fees in the
amount of $140,000, under section 271, based on the husband’s failure to
disclose financial information to the wife.
(In re Marriage of Feldman, >supra, at pp. 1474‑1475; see >In re Marriage of Sorge (2012) 202
Cal.App.4th 626, 652 [“Together, sections 271 and 2107 ‘give the trial
court authority to order sanctions and the payment of attorney fees for breach
of a party’s fiduciary duty of disclosure and for conduct which frustrates the
policy of promoting settlement’”].)

In
designating the record for this appeal, with the exception of an income and
expense declaration that Daniel filed in October 2010, Daniel did not designate
any document filed in the case before the parties filed their trial briefs on
the reserved issue of attorney fees, costs, and sanctions on March 29,
2011. Our review of the superior court
docket shows that Daniel might not have designated, for inclusion in the
clerk’s transcript, all of the documents that are relevant to the resolution of
the issues presented in this appeal.
(See Osgood v. Landon (2005)
127 Cal.App.4th 425, 435 [“‘a record is inadequate, and appellant defaults, if
the appellant predicates error only on the part of the record he provides the
trial court, but ignores or does not present to the appellate court portions of
the proceedings below which may provide grounds upon which the decision of the
trial court could be affirmed’”].) For
example, the superior court docket reflects that on March 29, 2011, not
only were Doreen’s and Daniel’s respective trial briefs on the reserved issue
filed along with Daniel’s latest income and expense declaration, but there was
a document filed and entered as “Declaration re Attorney’s Fees” that was not
designated by Daniel and not included in the clerk’s transcript. Three other documents were filed on
March 29, one described in the docket as “Affidavit/Declaration‑Other,”
another described as “Other Miscellaneous Document,” and another described as
“Exhibit‑Other”; none of these three documents was designated by Daniel
or included in the clerk’s transcript.

Notwithstanding
the specter Daniel might have designated an incomplete record that possibly
omitted evidence submitted by Doreen in support of her trial brief on the
reserved issue, substantial evidence in the record before us supported the trial
court’s finding Daniel had engaged in sanctionable conduct by failing to timely
disclose and produce bank statements and as a result increased the cost of the
litigation. Doreen’s expert forensic
accountant testified that certain bank statements regarding Daniel’s business
had to be subpoenaed because Daniel failed to produce them pursuant to
discovery orders. The accountant
testified he was not surprised to later learn that Daniel had those documents
in his possession because “they are documents that people normally retain in
the course of conducting business in their personal lives.” The accountant further testified that his
fees in this case were “very, very high” because “we had to reconstruct the
activity in the bank accounts because [Daniel]’s business bookkeeping was not
being maintained in a proper manner and that the documents that we received
through petition we then had to assemble them and go through them item by item
to corroborate or to come to conclusions.”
He testified that Doreen had already paid him around $25,000 and before
he testified at trial that day, she owed him $9,100.

After
closing argument, the trial court stated that in many family law cases he
presided over, once the petition for dissolution was filed, a party would suddenly
claim he or she could no longer earn as much because “there’s no overtime down
at the plant,” “[t]he government grants just ran out,” or “[b]usiness is lousy
and nobody is paying anything.” In such
cases, the trial court stated, that then, “as if by magic right around the time
the divorce decree is inked . . . all of a sudden now [that party is]
a participating equity partner down at the plant. The government is now granting business by
some miracle it’s gotten a whole lot better.”


Notwithstanding
the trial court’s past experience with less than forthright litigants, the
court stated that “to some extent,” it believed business was bad for Daniel
“because in the construction‑related business and home‑improvement
business, business may be bad.” The
court, however, went on to state: “The
thing that disturbs me is that if business is so bad, why not open the
books? Why not let all the world,
particularly in a litigation, take a look and see what’s in the checking
accounts and where it all went or what’s going on with it?” The trial court expressed skepticism about
some of the expenses Daniel claimed in his most recently filed income and
expense declaration, such as his payroll expense of $3,615 after Daniel had
laid off all of his employees.

The
court further stated: “Now, what I look
at in that case is the failure to provide bank statements and the other
financial materials which if by magic appeared in this particular exhibit right
around the time his feet [were] in the fire going to trial on this thing. And as if by magic it suddenly surfaced when
he had a fiduciary duty under In re the
Marriage of Feldman and In re the
Marriage of Walker to produce this stuff without any request at all,
period.” (Italics added.) (The court also mentioned, “some of the
earlier settlement proposal[s] by [Daniel] were insulting” and case law holds
that “unreasonable settlement offers can be the basis for sanctionable
conduct.”) The court ultimately found
that “the cost of this litigation was doubled by the conduct in the forensic
incident on the part of [Daniel].” The
trial court’s finding Daniel engaged in uncooperative conduct that increased
the cost of litigation was supported by the expert forensic accountant’s testimony,
described ante.

Daniel
contends the amount of the sanctions award imposed an unreasonable financial
burden on him in violation of section 271.
At trial, after determining that a sanctions award was appropriate, the
court stated: “The only thing that
bothers me is I don’t want to leave [Daniel] with nothing at the end of the
day. I don’t think that’s
appropriate. The sanctions that are
attributable in this sort of case in theory are supposed to de[t]er conduct
. . . in the future by people like this and anybody else of his or
her guilt [sic].” The court further stated that some of the
attorney fees and expert forensic accountant’s fees were Doreen’s
responsibility. The court continued: “That kind of goes with the territory and
under [section] 2030 she seem[s] to be in [a] better financial situation
than [Daniel] but in my view as and for conduct-related sanctions, the court
orders $15,000 in accounting fees and $30,000 in attorney fees.” The court stated, “[t]hose two items are
ordered specifically from [Daniel]’s share of the community property sale of
the family residence and directly—the court orders it directly payable from
escrow to the attorney and the accountant involved.”

The
record shows the trial court considered Daniel’s financial situation in
determining the amount of the sanctions award.
The court also expressed skepticism about Daniel’s claimed lack of
income. (Doreen’s expert forensic
accountant testified that for the year ending December 31, 2010, Daniel’s
“monthly controllable cash flow [was] $7,860.”)
Significantly, the court knew Daniel could pay the amount of sanctions
it had ordered from the proceeds of the sale of the family residence;
therefore, the court did not order sanctions in an amount Daniel was unable to
pay.

In
sum, we conclude substantial evidence supported the trial court’s finding
Daniel engaged in sanctionable conduct, and its implied finding that the
sanctions award would not impose an unreasonable financial burden on Daniel
within the meaning of section 271.
Daniel has failed to show the sanctions award otherwise constituted an
abuse of discretion.



II.

Daniel’s Rights to Offer Evidence, Cross‑examine Witnesses,
and Testify on His Own Behalf Were

Not Infringed upon by the Trial Court.

Daniel argues the trial
court denied him a fair trial by wrongfully limiting his rights to offer
evidence, to cross‑examine witnesses, and to testify on his own
behalf. The record shows Daniel
testified at the trial on the reserved issue, and, through his counsel,
submitted evidence, called witnesses, and cross‑examined Doreen’s
witnesses.

Daniel’s argument that
he was denied a fair trial is based on specific evidentiary rulings by the
trial court during the trial on the reserved issue. Daniel does not, however, offer any analysis
or citation to legal authority explaining why any given evidentiary ruling
constituted error or how he was prejudiced by it. (See >Berger v. California Ins. Guarantee Assn.
(2005) 128 Cal.App.4th 989, 1007 [the failure to make a coherent argument or
cite any authority to support a contention on appeal constitutes a waiver of
the issue on appeal]; Interinsurance
Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [“parties are required
to include argument and citation to authority in their briefs, and the absence
of these necessary elements allows this court to treat appellant’s
[contentions] as waived”]; Dills v.
Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1
[appellate court “will not develop the appellants’ arguments for them”]; Cal.
Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be
supported by “argument and, if possible, by citation of authority”]; Eisenberg
et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2012) ¶ 9:21, p. 9‑6 (rev.
# 1, 2012) [“appellate court can treat as waived, forfeited or meritless
any issue that, although raised in the briefs, is not supported by pertinent
or cognizable legal argument or proper citation of authority”].) Consequently, Daniel’s argument that he was
denied a fair trial on this basis is forfeited.

Notwithstanding
Daniel’s forfeiture of the issue, we review each evidentiary ruling Daniel
cites in support of his argument, and confirm the absence of prejudicial error.

A.

Inadmissibility of Declarations

Daniel argues that
before the trial on the reserved issue, the court wrongly refused to consider
two declarations filed by Daniel’s attorneys in support of his trial
brief. After Doreen’s counsel objected
to the declarations on the ground both were untimely filed and objected to one
of the declarations on the additional ground it was procedurally defective, the
trial court stated it would not read either declaration, without further
comment. Daniel does not contend the
declarations were timely filed or procedurally proper. Nothing in the record suggests that Daniel
was precluded from offering the same evidence contained in those two
declarations during the trial itself.

B.

Cross‑examination
of Witnesses

Daniel argues the trial
court denied him the right to cross‑examine witnesses, based on three
separate evidentiary rulings, without offering any explanation as to how they
were erroneous. The first instance
occurred when the court did not allow Daniel’s attorney to cross‑examine
Doreen’s expert forensic accountant as to a report he had relied upon because
“[i]t’s useless under 352 of the Evidence Code given the fact that it has no
probative value.” (The trial court had
previously sustained Daniel’s
attorney’s objection to the admissibility of that same report and refused to
allow it into evidence.) The court
informed Daniel’s attorney that it would admit the report, and then allow such
cross‑examination; Daniel’s attorney declined that option.

Daniel argues the trial
court denied him the right to cross‑examine witnesses on a second occasion
when the court sustained Doreen’s counsel’s objection to a question posed by
Daniel’s counsel during the cross-examination of Doreen’s expert forensic
accountant, as follows:

“Q. So in your report you made no allowances
whatsoever for any reimbursement. If
it’s been deposited into his account you pretty much counted that as income; is
that correct?

“A. That’s correct.

“Q. Okay.
So let me ask you this: Have you
formed any kind of a second opinion as to what his income would be if certain
reimbursements were withdrawn?

“A. No.

“Q. Okay.
Let me ask you this: Is it fair
to say that your opinion as to [Daniel]’s income would be lower if, in fact,
you had taken into consideration reimbursements no matter how small?

“[Doreen’s
counsel]: Objection, calls for
speculation.

“The Court: Sustained on both accounts.”

This testimony shows the
expert forensic accountant did not distinguish between reimbursements and
income in his report. There is no reason
to believe the trial court misunderstood this testimony. Accordingly, any error in the ruling on the
question posed would be harmless.

Daniel argues a third
instance of a purported infringement on his right to cross‑examine
witnesses occurred during the expert forensic accountant’s testimony. The trial court sustained Doreen’s counsel’s
objection to the question, “is it pretty common for records to be incomplete
and sloppy when the business is failing according to your experience,” on the
grounds the question was argumentative, called for speculation, and lacked
foundation.

Neither this evidentiary
ruling, nor the other two described ante,
reflect an infringement of the right to cross‑examine witnesses. Even if they were erroneous, there is no
basis for concluding any of the rulings constituted prejudicial error.

C.

Daniel’s
Trial Testimony

Daniel also argues the
trial court wrongfully denied him the right to testify because of the following
three instances.

First, in response to
Doreen’s counsel’s question, “[y]our attorney argues that you[’re] in dire
straits that you have no money. If you
truly believed you were entitled to $55,000 or one half of that why would you
avoid that,” Daniel answered, “[t]o put an end—I can’t afford this, Mr. Dolnick
[(Doreen’s counsel)]. You know
this. Mr. Goldenberg has paid for
her defense up to this point. I can’t
afford this. My business has
failed. All I wanted from the beginning
was my children and to put an end to this.
I tried to settle this a year ago.
You have hundred thousand dollars of legal fees that you drug out
because Mr. Goldenberg fully paid for the . . . .” At this point, the trial court stopped
Daniel, and stated: “How about you
answer the question and save the speeches for later.” The court did not err by reminding Daniel
that he was to answer the question asked of him.

Second, in response to
Doreen’s counsel’s question, “[a]nd your second offer of settlement asked her
to pay you $258,000. Ultimately, you’re
getting only one half of the equity in the home, approximately 50 to $60,000,
correct,” Daniel said, “Mr. Dolnick, I’m broke. I can’t continue to fight this.” Again, the court stated to Daniel: “Do me a favor just answer the questions,
will you? We’ll be here all day.” Daniel responded, “[o]kay.” Daniel’s answer was not responsive to
Doreen’s counsel’s question. The trial
court properly redirected Daniel accordingly.

Finally, Daniel argues
his counsel “attempted to question [Daniel] regarding duplicate deposits into
his business account, which would have rebutted opinion testimony of wife’s
expert that [Daniel]’s ‘controllable cash flow’ was $7,000/month. [¶] However, Judge Naughton sustained
every objection of [Doreen’s counsel] to this line of questioning
. . . ; and then discouraged [Daniel]’s counsel from continuing.” The relevant portion of Daniel’s testimony is
as follows:

“Q. Can you explain to the court what this first
page is?

“A. This is a spreadsheet of duplicate deposits
that were counted as income into my personal account.

“Q. So let me ask you this: What is the account number on this account?

“A. It’s the Bank of America account ending in
. . . .

“Q. And is it your understanding that this
account was used in [Doreen’s expert forensic accountant]’s analysis?

“[Doreen’s
counsel]: Objection, lack of foundation.

“The Court: Sustained.
The answer is stricken.

“By [Daniel’s counsel]:

“Q. The document is entitled, ‘Duplicate Deposits
Returned.’ Can you explain what that
means?

“A. These were checks that were written from the
business to myself that were either bounced or did not go to the bank.

“Q. At the bottom there’s a total of
$6,534.60. What does . . .
that number represent?

“A. Money that was counted as income that was not
income.

“[Doreen’s
counsel]: Objection, lack of foundation.

“The Court: Sustained.
The answer is stricken.

“By [Daniel’s counsel]:

“Q. Let me ask you this: That $6,534.60, were those moneys that were
reimbursed to you from the business for advances?

“[Doreen’s
counsel]: Objection, leading.

“The [Court]: Sustained.

“By [Daniel’s counsel]:

“Q. The first entry on that first page states
that there’s $158 let[’]s call it expense or figure and that was dated January
6th, 2010. Do you see that?

“A. Yes.

“Q. Do you recall what that $158 was for?

“A. I don’t at the time but I know it was a
duplicate.

“Q. Is there any document that would refresh your
recollection as to what that expense would be?

“A. If I had the actual check, yes.

“Q. By taking a look at the actual statement, is
there any way that you can tell that it was a reimbursement?

“A. It was definitely a reimbursement.

“Q. I’m going to have you take a look—

“[Doreen’s
counsel]: Objection, lack of foundation.

“The Court: Sustained.
Are we really—do you really propose to go item by item?

“[Daniel’s
counsel]: I did not want to, Your Honor,
but this—

“The Court: You gave me an hour estimate.

“[Daniel’s
counsel]: I didn’t. I did not.

“The Court: I’ll see you tomorrow morning at 9:00
o’clock. You’re ordered to be here, you
and your client. If this litigation is
any example of what went on before, your client better bring a checkbook.”

That a trial court
sustained a series of objections to a line of questioning does not in and of
itself constitute an infringement upon a party’s right to testify on his or her
own behalf. Furthermore, the trial
court’s questioning of the efficiency of Daniel’s counsel’s method of direct
examination is well within the court’s duty under Evidence Code section 765,
subdivision (a) to “exercise reasonable control over the mode of
interrogation of a witness so as to make interrogation as rapid, as distinct,
and as effective for the ascertainment of the truth, as may be.”

We find no error.



III.

The Trial Judge Did Not Demonstrate Judicial Bias.

Daniel argues the trial
judge “committed reversible error by demonstrating that a fair and impartial
trial could not be had before him by reason of his bias and prejudice
(a) against self‑employed businessmen and (b) against
[Daniel].” (Capitalization, boldface,
& underscoring omitted.) Under Code of Civil Procedure
section 170.1, “(a) A judge shall be disqualified if any one or more of
the following are true: [¶]
. . . [¶] (6)(A) . . . [¶] . . . [¶] (iii) A
person aware of the facts might reasonably entertain a doubt that the judge
would be able to be impartial. [¶]
(B) Bias or prejudice toward a lawyer in the proceeding may be grounds for
disqualification.” It is well established
that “[w]hen reviewing a charge of bias, ‘. . . the litigants’
necessarily partisan views should not provide the applicable frame of
reference. [Citations].’
[Citation.] Potential bias and
prejudice must clearly be established [citation] and statutes authorizing
disqualification of a judge on grounds of bias must be applied with
restraint. [Citation.] ‘Bias or prejudice consists of a “mental
attitude or disposition of the judge towards [or against] a party to the
litigation. . . .”’ [Citation.]
Neither strained relations between a judge and an attorney for a party
nor ‘[e]xpressions of opinion uttered by a judge, in what he conceived to be a
discharge of his official duties, are . . . evidence of bias or
prejudice. [Citation.]’” (Roitz v. Coldwell Banker Residential
Brokerage Co. (1998) 62 Cal.App.4th 716, 724.) Daniel’s contention of judicial bias
is based on four separate instances, none of which reflects judicial bias.

First, in response to
Daniel’s counsel’s argument that Daniel was out of money and a sanctions award
would impose an unreasonable financial burden on him, the trial judge expressed
frustration with the trend he had observed in family law cases where the
parties spend all their money litigating and then complain about being
sanctioned because they would not have a lot of money left. The judge stated, “my response to that
is: You guys should have thought about
that in the first place when you both decided you want to go forward to do
battle and that goes for both sides.”
The trial judge’s comment, which was equally directed to both Daniel and
Doreen, does not reflect any form of bias against Daniel.

Second, Daniel argues
the judge demonstrated bias against Daniel and his counsel and prejudgment of
the case, by informing Daniel’s counsel, after what the judge considered to be
inefficient direct examination at the trial to determine sanctions, that “[i]f
this litigation is any example of what went on before, your client better bring
a checkbook.” But, expressions of
understandable frustration do not establish bias. (Roitz
v. Coldwell Banker Residential Brokerage Co., supra, 62 Cal.App.4th at p. 725.) Furthermore, the judge’s isolated statement
in the middle of trial does not disclose the judge’s prejudgment of any issue
in the case. In any event, the
expression of such a view on a legal or factual issue in a proceeding is not
grounds for disqualification under Code of Civil Procedure section 170.2,
subdivision (b).

Third, Daniel’s counsel
argued at the trial on the reserved issue (and Daniel argues on appeal) that he
had been “completely vindicated” (boldface omitted) as to Doreen’s allegations
that Daniel had engaged in domestic violence.
The trial judge corrected Daniel, explaining, “I thought at the time
that there wasn’t a preponderance of the evidence of the conduct that—whatever
was alleged under the Domestic Violence Prevention Act. That doesn’t mean that I made a finding of
not guilty. I simply found that I wasn’t
satisfied by a preponderance of the evidence and it was not a vindication of
[Daniel] or anybody else. [¶] I know
that some stuff went on that night and I know that it was inappropriate. Whether or not it was domestic violence is
another matter.” The judge’s comments
clarifying the legal significance of the denial of the preliminary injunction
do not reflect bias.

Finally, Daniel contends
the judge demonstrated bias against him personally and against self-employed
husbands by the following comments:
“[T]he question that I have is all along [Daniel] has said, ‘my business
in the tank. I’m in building‑related,
construction‑related industry and it’s going down hill and it’s going
counter clockwise down the sink and I’m broke basically.’ I can’t tell you over the last nine years as
a judge and 30 some odd years as a lawyer how many times I’ve heard that same
song. [¶] They ought to have sheet music
for it in divorces. Murphy’s Law of
divorce is that right around the time the petition was filed there’s no
overtime down at the plant. The
government grants just ran out. Business
is lousy and nobody is paying anything as if by magic right around the time the
divorce decree is inked . . . all of a sudden now I’m a participating
equity partner down at the plant. The
government is now granting business by some miracle it’s gotten a whole lot
better. [¶] But to some extent I believe
it because in the construction‑related business and home‑improvement
business, business may be bad.” The
trial judge’s comments reflect his experience with parties who are not
forthright about their income in family law cases, not about self‑employed
husbands or Daniel in particular. In
fact, the judge expressly stated that he believed business had been bad for
Daniel.

In sum, we find no
evidence of judicial bias in this case.
We note, however, that the opening brief contains inappropriate
statements, personally attacking the trial judge in this case. Those statements by Daniel are without any
basis.



DISPOSITION

The
judgment is affirmed. Inasmuch as
respondent did not file a brief, neither party shall recover costs on appeal.







FYBEL,
ACTING P. J.



WE CONCUR:







IKOLA, J.







THOMPSON, J.