Filed 8/12/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
MARY D.,
Plaintiff and Respondent, A170749
v.
MATTHEW MCCAULEY, (Alameda County Super. Ct.
No. RG21106563 )
Defendant and Appellant.
Mary D.1 sued Matthew McCauley for personal injury based on years of
sexual abuse when she was a minor. A jury found him liable for multiple
torts, and it awarded Mary D. compensatory and punitive damages.
On appeal, McCauley contends that the trial court: (1) deprived him of
his constitutional right to meaningful access to the courts—and abused its
discretion—by denying his requests for a continuance to enable him to retain
counsel; (2) deprived him of his constitutional right to a fair trial by allowing
the trial to proceed when the court reporter attended remotely one day and
when videoconferencing audio was intermittently choppy; and (3) abused its
discretion by admitting into evidence school photographs of Mary D. during
the years of abuse. McCauley also contends that insufficient evidence of his
financial circumstances supports the jury’s punitive damage award, and that
the award was excessive. He requests that we reverse the punitive damage
1 “Mary D.” is a pseudonym for plaintiff used in the trial court and on
appeal.
award with no remand for retrial. Based on any one of the remaining errors,
or based on their cumulative effect, McCauley requests that we reverse the
judgment and remand the matter for a new trial on liability and
compensatory damages.
We agree with McCauley that the trial court abused its discretion and
violated his constitutional rights by denying his continuance requests. We
therefore reverse the judgment and remand for a new trial, although we
conclude that Mary D. is entitled to retry all issues, including punitive
damages.
In light of this disposition, we do not reach McCauley’s argument that
the court reporter’s remote attendance or the audio problems prevented a fair
trial. We also do not reach his punitive damages contentions. But since the
question likely will recur on remand, we explain why we see no error in the
trial court’s decision to admit the school photographs.2
BACKGROUND
I.
In 2021, a jury convicted McCauley of felony counts relating to his
sexual abuse of Mary D. The criminal court sentenced him to prison, where
he remained. About two months after he was convicted, Mary D. filed this
civil action against him. McCauley initially retained a lawyer to represent
him in the case.
During the same period, McCauley was also involved in divorce
proceedings in family court. Around the time that Mary D. filed her lawsuit,
the family court set up a blocked account for McCauley to prevent him from
2 We grant McCauley’s requests for judicial notice of documents filed in
his divorce action and of this court’s online docket in his criminal case, as
well as the court’s online listing of the parties and their attorneys.
2
fraudulently transferring assets. A few months later, around September
2021, the family court directed a deposit into the account of $536,265.
About a year later, around July 2022, McCauley ran out of unblocked
funds. In August, he filed a substitution of counsel and began to represent
himself. At this time, trial was set for April 3, 2023. In January 2023, at
Mary D.’s request, the court continued the trial date to October 2, 2023.
On July 13, 2023, the court filed an undated letter from McCauley in
which he requested that the court grant him access to his blocked funds so
that he could retain counsel. He noted that he was incarcerated and
contended that he was unable to meaningfully participate in the case on his
own.
The next day, McCauley appeared remotely at a previously scheduled
case management conference.3 He told the court (Hon. Tara Desautels) that
he was in the process of securing representation and should be able to do so
within two weeks. Judge Desautels told McCauley that she had no authority
to order access to his funds, and she advised him to make a request
“forthwith” of the family court judge handling his divorce case.
The minutes from the next case management conference, held a month
later on August 18, recounted that “defendant [had] represented he
anticipated securing counsel for the instant action within two weeks . . .
however no notice of substitution appears to have been filed.” The court
instructed that McCauley “must file a substitution of attorney before the next
3 The record contains only the minutes from pretrial proceedings.
There are no reporter’s transcripts or agreed or settled statements.
3
hearing” and “is to also obtain an order in his family case . . . regarding
access to his funds.”
By the next case management conference, three weeks later on
September 8, McCauley had not filed a substitution of attorney. He
represented that he had been unable to obtain an order from the family court
to access his funds. The court found good cause to continue the trial to
November 13. It scheduled the next case management conference for
October 11.
There is no evidence in the record about when McCauley mailed his
request for access to his funds to the family court, although he dated the
request August 30 and the supporting declaration August 31, and McCauley’s
wife filed responsive documents on September 27. The register of actions
shows that the court filed the request on October 2, and three days later, it
issued an order setting a hearing on the matter for October 25.
Meanwhile, the trial court held its scheduled case management
conference on October 11. The court instructed McCauley to update the court
“forthwith” about a ruling from the family court regarding his request.
McCauley did not appear at the October 25 family court hearing, and
that court continued it to November 8. In his opening brief on appeal,
McCauley notes that there is no indication that the order setting the
October 25 hearing date had been served on him. The next day, the clerk
mailed the minutes from the October 25 hearing, which included the
videoconference information for the next hearing, to McCauley in prison.
At the October 27 pretrial conference in this action, McCauley reported
to the trial court that he had no update regarding the requested family court
order. The trial court’s minutes note that the family court had continued the
October 25 hearing to November 8 because McCauley had been unable to
4
appear. The trial court continued the pretrial conference again, this time by
about two weeks, to November 13, five days after the family court hearing
date. It continued the trial by three weeks to December 4.
McCauley attended the family court hearing on November 8, but the
court did not rule on his request. It continued the hearing to December 5.
We presume that McCauley had notice of the December 5 family court
hearing because he was present at the hearing at which it was set, although
it does not appear from the record that the court served McCauley with its
minutes or any other document that would have enabled him to appear
remotely, as it had for the November 8 hearing.
On November 13, the trial court in the civil action issued pretrial
conference minutes, although the minutes do not note any appearances and
the register of actions shows that the court issued a tentative ruling several
days earlier. The minutes note that, “[a]ccording to the register of actions, on
11/8/23, a hearing was held in [the family court]. The matter was continued
to 12/5/23.” The trial court continued the pretrial conference and the trial
dates a third time because “the results of the [family court hearing] impact
defendant’s ability to retain counsel in this action . . . .” The court continued
the matters by about eight weeks, but a few days later continued them by
another month to accommodate a pre-planned trip by Mary D.’s counsel. As a
result, the pretrial conference was set for February 16, 2024, and the trial for
February 26.
McCauley did not attend the December 5 family court hearing. In his
absence, the family court orally granted his request, providing him access to
$100,000. There is no evidence that the minute order entered after the
hearing was served on him. In the minute order, the court instructed his
wife’s counsel to prepare the findings and order after hearing. Although the
5
record is not entirely clear, it appears that counsel did not submit the papers
until about a month later.
The family court—this time a different judge in a different
department—held another hearing in January 2024 at which McCauley did
not appear. There is no evidence that McCauley had notice of the hearing.
His wife’s counsel advised the court that McCauley was incarcerated, in light
of which the court noted it could not find that McCauley had intentionally
failed to appear. It directed the clerk to serve notice on McCauley in prison.
McCauley also did not appear at the next two trial court conferences in
this action, which occurred in February after the case had been reassigned to
a different judge (Hon. Somnath Raj Chatterjee). On February 1, the trial
court had issued a general pretrial order, to which it appears Mary D.
responded with a trial brief, statement of the case, witness list, and special
verdict form. The record suggests that McCauley may not have received the
order, since a February 21 entry on the register of actions notes that a mailed
pretrial order was returned to the court.
At the first of the February conferences, held February 16, the trial
court instructed Mary D.’s counsel to report back on the steps necessary to
ensure that the trial court protected McCauley’s due process rights during
pretrial proceedings and at trial. Specifically, the court asked Mary D.’s
counsel to look at whose obligation it was to request appearance assistance
from the prison.
In between the two February conferences, Mary D.’s counsel submitted
a responsive brief. It discussed the prison’s protocol for prisoner court
appearances via videoconferencing, explaining that McCauley had access to
the prison’s videoconferencing equipment and that it would be made
available to him if there were a court order. It also discussed measures to
6
protect an indigent, incarcerated civil litigant’s right to meaningful access to
the courts required under the California Supreme Court decisions Payne v.
Superior Court (1976) 17 Cal.3d 908, 922–923 (Payne), and Yarbrough v.
Superior Court (1985) 39 Cal.3d 197, (Yarbrough). The brief noted that this
right to affirmative assistance from the trial court applies only to prisoners
who are indigent, and it contended that there was no evidence before the trial
court that McCauley was indigent. It argued that the only appropriate
“remedy” to which he was entitled was appearance at trial by videoconference
or transfer to an Alameda County jail to permit him to attend in person.
At the second conference, held February 26, the trial court instructed
Mary D.’s counsel to submit an order for the prison to provide McCauley with
access to videoconferencing during the pretrial and trial dates. The trial
court then continued the pretrial conference and trial a fourth time to April 5
and April 15, respectively, and directed the clerk to serve McCauley with a
copy of the order setting these dates.
McCauley attended the April 5 pretrial conference—apparently his first
appearance before the new judge—at which the parties and the court
discussed witnesses and voir dire. The minutes note that McCauley informed
the court that he did “not intend to present any witnesses to testify.” The
court continued the pretrial conference to April 12 and the trial to April 22.
Meanwhile, on April 3, the family court had finally signed a written
order memorializing its December 5 oral ruling and minute order granting
McCauley access to $100,000 for retaining a lawyer. The court caused the
order to be served on McCauley by mail.
At the April 12 pretrial conference, a lawyer who had represented
McCauley in his criminal case made a special appearance on his behalf,
presumably because McCauley had learned that the family court had granted
7
him partial access to his funds. The lawyer requested a continuance and
represented that she would help McCauley find counsel. In the first of the
two continuance rulings at issue in this appeal, the trial court denied the
request and continued the pretrial conference by one week to April 19. At the
continued pretrial conference on April 19, McCauley renewed his continuance
request, which the trial court again denied—the second continuance ruling at
issue. As with previous conferences, neither the April 12 nor the April 19
conference was reported, and on appeal McCauley has not submitted an
agreed or settled statement for either.
Trial began on April 22, with McCauley appearing remotely from
prison by videoconferencing. The court split the trial into two phases,
liability and compensatory damages in the first and punitive damages in the
second.
After the first phase closed, the jury returned a special verdict finding
the following: McCauley had acted negligently toward, sexually battered,
assaulted, and falsely imprisoned Mary D., and his tortious acts were
substantial factors in causing Mary D. harm. The jury awarded Mary D.
$10 million in past noneconomic damages, $6 million in future noneconomic
damages, and $350,000 in future economic damages. After the second phase
closed, the jury found that McCauley had engaged in malicious or oppressive
conduct, and it awarded Mary D. $5 million in punitive damages.
DISCUSSION
I.
McCauley contends that the trial court erred by denying his April 12
and April 19 requests to continue the trial. Specifically, under Payne, supra,
17 Cal.3d 908, and its progeny, he argues that as an indigent, incarcerated
civil litigant, he was entitled to have the court take affirmative remedial
8
steps to effectuate his constitutional right to meaningful court access. He
further argues that the court’s denials of a continuance violated that right.
Mary D.’s response is fourfold. First, she contends that, without an agreed or
settled statement of the unreported hearings at which the continuances were
requested and denied (see California Rules of Court, rules 8.134, 8.137),
McCauley has failed to supply an adequate record for appellate review.
Second, she argues that the record does not support McCauley’s claim of
indigency because he could have sought access to his blocked funds long
before July 2023, when he first raised the issue with the trial court. Third,
she argues that, even if McCauley were effectively indigent, the trial court
adequately protected his rights by ensuring that he could attend and
participate in the trial by videoconference. Finally, she maintains that any
error in denying a continuance was harmless. We take up these arguments
in turn after addressing the parties’ dispute about the standard of review. In
a final section, we address McCauley’s argument that Mary D. should not
receive an opportunity to seek punitive damages in any retrial.
A.
Acknowledging that denials of requests for a continuance are normally
reviewed for abuse of discretion, McCauley argues that we should
nonetheless review the issue de novo because it implicates his constitutional
rights. He cites, for example, People v. Seijas (2005) 36 Cal.4th 291, which
held that independent review applies to the trial court’s determination
whether a witness may assert the privilege against self-incrimination
because it affects the defendant’s constitutional right of confrontation. (Id. at
p. 304; see also People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7
[concluding that the trial court’s denial of a new trial motion should be
reviewed independently because it implicated the defendant’s “federal
9
constitutional rights to due process and concerns the fundamental fairness of
his trial”].)
McCauley does not, however, cite a decision applying the de novo
standard of review to a trial court’s ruling that implicates the right set forth
in Payne, supra, 17 Cal.3d 908. As Mary D. points out, our high court and
our sister courts have uniformly treated the standard of review in that
context as abuse of discretion, although there is no indication that any
dispute about that question was raised. (See Payne, at pp. 925–927;
Yarbrough, supra, 39 Cal.3d at pp. 204, 207; J.S. v. D.A. (2026)
118 Cal.App.5th 891, 896; Jameson v. Desta (2009) 179 Cal.App.4th 672, 678–
680, 684; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483–1487;
Wantuch v. Davis (1995) 32 Cal.App.4th 786, 796.) Based on the language in
Payne and Yarbrough, we will apply that standard as well.
The standard presumes deference to the trial court. (Bancomer, S.A. v.
Superior Court (1996) 44 Cal.App.4th 1450, 1457.) But “[t]he scope of
discretion always resides in the particular law being applied.” (People v.
Jacobs (2007) 156 Cal.App.4th 728, 737.) “ ‘The discretion of a trial judge is
not a whimsical, uncontrolled power, but a legal discretion, which is subject
to the limitations of legal principles governing the subject of its action, and to
reversal on appeal where no reasonable basis for the action is shown.’ ”
(Westside Community for Independent Living, Inc v. Obledo (1983) 33 Cal.3d
348, 355.)
B.
Because a trial court’s judgment or order is presumed to be correct and
the burden of demonstrating error rests with the appellant, “[i]n many cases
involving the substantial evidence or abuse of discretion standard of review,
. . . a reporter’s transcript or an agreed or settled statement of the
10
proceedings will be indispensable.” (Southern California Gas Co. v. Flannery
(2016) 5 Cal.App.5th 476, 483 (Flannery).) Relying on this authority,
Mary D. argues that we “need not reach the merits” of McCauley’s claim
because he did not supply an agreed or settled statement of the two
unreported hearings at which his requests for a continuance were denied.
Stated generally, the absence of a transcript or an agreed or settled
statement will be fatal on appeal when the record of those oral proceedings
could show that the challenged order would not have been an abuse of
discretion. Flannery cited Vo v. Las Virgenes Municipal Water Dist. (2000)
79 Cal.App.4th 440, an appeal of an attorney fee award. In Vo, the trial
court’s order made clear that, in determining what amount was reasonable, it
had considered the “entire course of the litigation,” including the pleadings
and the evidence presented to the jury. (Id. at p. 447.) The appellants,
however, failed to include either the pleadings or the trial transcripts in the
record. (Ibid.) The appellate court explained: “The absence of a record
concerning what actually occurred at the trial precludes a determination that
the trial court abused its discretion. It is not possible to judicially and
appropriately determine from the inadequate record provided by defendant
that the trial court abused its discretion in its conclusion that $470,000 was a
reasonable award in comparison to the scope of the litigation as a whole.”
(Id. at p. 448.) Flannery also cited Ballard v. Uribe (1986) 41 Cal.3d 564,
which challenged the trial court’s denial of a new trial motion. There, the
record lacked not only a transcript of the motion hearing—which could have
revealed the basis for the trial court’s denial—but also the transcripts of the
underlying trial proceedings that would be necessary to evaluate the claimed
errors. (Id. at p. 574.) In short, in both Vo and Ballard, the reviewing court
was unable to find an abuse of discretion because the missing portions of the
11
record could readily have disclosed a proper basis for the trial court’s
decision.
In Flannery itself, the court disagreed that the appeal was subject to
dismissal simply because the appellant failed to include an agreed or settled
statement of the unreported hearing that led to the challenged orders.
(Flannery, supra, 5 Cal.App.5th at p. 483.) Instead, it proceeded to evaluate
the multiple claims of error, concluding only in some instances that the
incompleteness of the record foreclosed them. For example, the court rejected
a due process claim concerning the procedure by which the motions were
granted in part because “[w]ith no reporter’s transcript in the record, we
presume that Flannery had the opportunity to present evidence at the
hearing . . . and waived any objection to the court proceeding on the parties’
declarations and exhibits alone.” (Id. at p. 485.)
Here, the absence of an agreed or settled statement means we do not
know why the court denied any continuance to allow McCauley to retain
counsel once he learned that the family court had granted him access to his
blocked funds. It also means, as Mary D. points out, that we do not know
whether the trial court “made the threshold determinations that McCauley is
indigent and that this lawsuit involves a bona fide threat to his personal or
property interests,” whether it considered the proper factors in evaluating
how to protect his constitutional right of access, or what potential remedies it
considered. But while the record’s silence could work to McCauley’s
disadvantage on those points insofar as we will presume the court considered
everything it was required to, it does not make his claim unreviewable;
rather, it means we must affirm unless there is no adequate justification the
12
court could have given for its decision.4 As in other cases, we conduct our
review based on the contentions raised in the briefs. (Connell v. Superior
Court (1997) 59 Cal.App.4th 382, 394.) Here, again, Mary D. suggests two
possible justifications for the court’s decision: First, the court reasonably
could have concluded that McCauley’s failure to have acted sooner in the
litigation to secure access to his blocked funds meant he should not receive
the heightened due process protections required for indigent incarcerated
litigants; or second, even if McCauley were effectively indigent, the court
reasonably could have concluded that his rights were adequately protected by
ensuring his ability to participate in the trial by videoconference.
Accordingly, we proceed to consider these alternatives.
C.
McCauley points us to Payne, supra, 17 Cal.3d 908 and Yarbrough,
supra, 39 Cal.3d 197, and their progeny in the courts of appeal. These
decisions establish that an indigent, incarcerated person who is sued in civil
court has equal protection and due process rights to meaningful court access
so they can defend their interests. If a trial court finds that an incarcerated
civil litigant is both (1) indigent and (2) a party to a bona fide civil action that
threatens their interests, the court must intercede to ensure the litigant’s
4 The presumption that an official duty has been regularly performed
(Evid. Code, § 664) may allow us to presume that the trial court made a
finding, one way or the other, about whether McCauley was indigent. (Cf.
J.S. v. D.A., supra, 118 Cal.App.5th at p. 897 [reviewing court could not
conclude the trial court made the required findings under Payne where the
minute order did not show it ruled on incarcerated defendant’s request for an
extension before holding unreported hearing on domestic violence restraining
order request in his absence].) But because there is no indication which
finding the court made and Mary D. argues the trial court’s denial of a
continuance would have been proper whatever its finding on that question,
we consider both possibilities below.
13
meaningful access to the courts. (Yarbrough, supra, 39 Cal.3d at pp. 200–
201; Apollo v. Gyaami, supra, 167 Cal.App.4th at pp. 1483–1484.)
There is no dispute that McCauley was a party to a bona fide civil
action that threatened his interests. The parties disagree only about whether
he was indigent for purposes of Payne. McCauley argues that he was
indigent because he was unable to retain counsel without access to the funds
in his blocked account. Mary D. does not dispute that point—i.e., she does
not suggest that McCauley had any other funds to retain counsel or that the
family court granted McCauley access to his account with enough time for
him to hire a lawyer before trial. But she argues that he was not indigent so
as to be entitled to Payne’s protections because he was not diligent in
pursuing the matter earlier in the case. Specifically, although she does not
contend that McCauley lacked diligence after he raised the issue with the
trial court in July 2023, she notes that there were two years between the time
his blocked account received $536,265 and his later letter to the court.5
We are not persuaded that McCauley’s failure to seek access to the
blocked funds before July 2023 establishes such a lack of diligence that he
should be deemed to have had access to them notwithstanding that they
remained inaccessible to him for more than half a year while he sought an
order from the family court. First, McCauley’s letter to the family court
explained that he did not exhaust his other funds until July 2022, so there
was not a two-year period in which he was unable to pay counsel. Second,
when he did exhaust them, trial was scheduled for April 2023, some nine
5 At oral argument, Mary D.’s counsel confirmed that Mary D. bases
her diligence argument solely on the period preceding McCauley’s July 2023
letter to the court, acknowledging that it appears he “did his best” once the
court instructed him that he would need to obtain an order from the family
court.
14
months away, and in January 2023 Mary D. obtained a continuance of that
date to October, apparently because she wanted to wait until McCauley’s
criminal conviction was final so he could not continue to assert the privilege
against self-incrimination. As McCauley argues, the docket shows little
action in the case between August 2022 and July 2023, with multiple dates
continued by the court based on the continuance Mary D. obtained in
January. Third, at the time he wrote his letter, McCauley reasonably could
have believed there was enough time to gain access to the account and hire a
lawyer to represent him at a trial several months away. Indeed, knowing all
the particulars, Judge Desautels appears to have expected that McCauley
would be able to file a substitution of counsel in time for the trial to go
forward as scheduled.
The delays after that date were not the inevitable result of McCauley
raising it when he did. The record reveals several shortcomings in the way
the family court acted on McCauley’s request. The register of actions shows
that he submitted with his request for order a notice to appear remotely. The
court signed an order permitting him to do so but the record does not show it
was served on him. When McCauley failed to appear at the hearing on
October 25, the court evidently realized the problem and continued the
hearing to November 8 with an instruction that the clerk serve the minutes
with the videoconference information on McCauley in prison. When
McCauley appeared on November 8, the court did not rule on the request and
instead continued the hearing to December 5. The record does not show that
the court had the clerk send the minute order to McCauley—as it had just
done before the November 8 hearing—so he did not appear at the continued
hearing. When the court granted his request in his absence, it again did not
have the clerk serve the minutes on McCauley and merely asked his wife’s
15
counsel to submit the findings and order after hearing. It appears that a
month passed before opposing counsel did so, and then three more months
passed before the court signed it.
In light of McCauley’s status as an unrepresented, incarcerated litigant
and the time-sensitive nature of his request for access to funds, the family
court could have done more to ensure that McCauley was informed of and
able to attend the proceedings, as well as to resolve the issue expeditiously.
(See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368 [acknowledging
that superior courts face a heavy volume of marital dissolution matters, with
a substantial majority litigated by unrepresented parties, but noting that
“family law litigants should not be . . . deprived of access to justice”]; Park v.
Guisti (2025) 116 Cal.App.5th 197, 205 [“We encourage the trial court to
communicate with prison personnel as necessary to ensure Park is given a
meaningful ability to attend court appearances and present his case”]; cf.
In re Marriage of Knox (2022) 83 Cal.App.5th 15, 21 fn.2 [trial court’s
unreasonable delay in acting on wife’s request for attorney fees pendente lite
denied her “meaningful access to justice as that concept is described in the
final report and recommendations of the Elkins Family Law Task Force”].)
While Mary D. argues that McCauley benefitted from multiple trial
continuances, they were largely occasioned by the slow progress of the family
court proceedings during a time when Mary D. concedes he was diligent.6
Those continuances indicate that Judge Desautels concluded the trial should
not take place while McCauley’s request was pending before the family court.
6 Two later continuances were granted (1) to accommodate plaintiff’s
counsel’s travel schedule and (2) because McCauley did not appear at the
February pretrial conference, apparently because he did not receive the
court’s pretrial order (which the register of actions shows was returned).
16
We do not suggest that Judge Chatterjee was bound to adhere to
Judge Desautels’s view of that issue. The question before us is the narrower
one of whether it would have been reasonable to disregard McCauley’s
effective indigence, notwithstanding the delays occasioned by the family
court’s resolution of McCauley’s request, because he did not start the process
earlier.7 Having carefully considered the parties’ arguments about the
record, we think the answer is no. The Supreme Court emphasized that the
right of meaningful access to the courts is fundamental. (Payne, supra, 17
Cal.3d at pp. 914, 919.) There is no dispute that, as a practical matter,
McCauley was indigent as long as there was a court order preventing him
from using any of his funds. We accept the principle underlying Mary D.’s
argument—that McCauley, by a marked lack of diligence in protecting his
right of access to the courts, might forfeit any claim to the judicial solicitude
described in Payne. But for the reasons described above, we do not think the
record shows a failure to act that would rise to that level. (Cf. Goodhue v.
Tureaud (1979) 100 Cal.App.3d 205, 211–212 [incarcerated defendant was
properly served and received written notices but took “no steps appropriately
calculated to protect or suggesting a desire to protect his interest prior to
suffering a default judgment”].) Again, measured against the span of the
case, the period between the time McCauley exhausted his funds and raised
the issue with the court was relatively brief, and for much of it the progress of
the litigation was stalled by the continuance Mary D. obtained. We therefore
conclude it would have been an abuse of discretion for the trial court to deny
a continuance on the ground that Payne simply did not apply to McCauley.
7 Again, we do not know whether that was Judge Chatterjee’s view; we
are considering a potential justification for the denial of a continuance as
argued by Mary D. in her brief.
17
D.
We turn to Mary D.’s alternative argument that the trial court
adequately protected McCauley’s rights by ensuring that he could participate
in the trial by videoconference. We start by examining Payne, supra,
17 Cal.3d 908, and Yarbrough, supra, 39 Cal.3d 197, to guide our review of
the trial court’s actions.
In Payne, supra, 17 Cal.3d 908, as here, an incarcerated person, Payne,
was sued for damages based on the crime for which he had been convicted.
(Id. at pp. 911–912.) He was unrepresented, and the Department of
Corrections denied his request to allow him to attend the trial. (Id. at
p. 912.) In his absence, the trial court entered a default judgment against
him. (Ibid.) He filed a petition for writ of error on the ground that he had
been denied permission to attend trial and had been denied his right to
counsel. (Ibid.) Treating the petition as a motion to vacate, the trial court
denied it. (Ibid.) The Supreme Court concluded that, if Payne were indigent,
the trial court’s rulings had violated his right to court access. (Id. at pp. 926–
927.)
After establishing that an indigent, incarcerated civil defendant facing
bona fide legal action threatening his interests has a right to court access, the
Payne court discussed potential remedies to ensure that access. (Payne,
supra, 17 Cal.3d at pp. 923–925.)
“One possible solution,” it noted, “is to accord prisoners the right of
personal appearance to defend any action, but to deny indigent prisoners
appointed counsel.” (Payne, supra, 17 Cal.3d at p. 923.) The Court observed
that such an approach had the advantage of “superficial symmetry” between
indigent prisoners and indigent free people. (Ibid.) But “prisoners do not
have the same access to free legal services as other indigents. Equally
18
significant, a prisoner, unlike a free person, is not able to seek out witnesses
in his behalf or undertake the investigative functions often needed to defend
a civil suit.” (Ibid.) It concluded that, at least as a blanket rule, “allowing a
right of personal appearance is not an appropriate remedy for prisoners
seeking to defend a civil action.” (Ibid.)
The Court also considered a rule that trial courts defer trial until after
the release of an indigent, incarcerated defendant. (Payne, supra, 17 Cal.3d
at p. 923.) In some circumstances, the Court concluded, when a
postponement would not substantially prejudice the rights of plaintiffs, this
remedy would suffice. (Ibid.) “However,” the Court continued, “in many
situations, particularly when a defendant is serving a long term of
confinement, a postponement will substantially impair the interests of the
plaintiff.” (Ibid.)
“In those cases,” the Court concluded, “the only feasible method of
granting access rights to indigent prisoners is appointment of counsel.”
(Payne, supra, 17 Cal.3d at p. 923.) The Court noted that it was not
establishing an absolute right to appointment of counsel. (Id. at p. 924.) But
in cases where the threshold requirements are met, and a continuance is not
feasible, the trial court should ascertain “whether an attorney would be
helpful . . . under the circumstances of the case.” (Ibid.) It noted that the
determination should be simple. (Ibid.) “[I]f the prisoner is not contesting
the suit against him, or any aspect of it, there is no need for counsel; but if he
plans to defend the action and an adverse judgment would affect his present
or future property rights, an attorney should be appointed.” (Ibid.)
In Yarbrough, supra, 39 Cal.3d 197, the Supreme Court confirmed the
right to court access and the inquiry process set forth in Payne. (Yarbrough,
at p. 207.) A trial court, it reiterated, is required “to consider the defendant’s
19
indigency, the feasibility of a continuance, whether [the] defendant’s interests
are actually at stake, and whether counsel would be helpful under the
circumstances.” (Ibid.) It also elaborated on when counsel would be helpful.
(Id. at p. 205.) In a case in which the incarcerated person is collaterally
estopped to relitigate issues decided against them in their prior criminal
trial, for example, the trial court should consider whether other questions of
fact remain to be litigated. (Ibid.) A determination that counsel would not be
helpful on the question of liability in such circumstances, it noted, “does
not . . . foreclose the need for counsel on the issue of the amount of damages.”
(Id. at p. 206.)
McCauley was not asking that counsel be appointed for him. Rather,
having just learned that the family court had finally signed an order granting
him access to some of his funds to hire a lawyer to represent him, he was
seeking a continuance that would have allowed him to do so. There is no
doubt, under the guidelines of Payne and Yarbrough, that this was a case in
which an attorney would have been helpful. (See Payne, supra, 17 Cal.3d at
p. 923; Yarbrough, supra, 39 Cal.3d at p. 207.) McCauley faced a bona fide
civil suit seeking millions of dollars in damages. (See Payne, at p. 924;
Yarbrough, at p. 207.) He planned to contest the action. (See Payne, at
p. 924.) Although his conviction collaterally estopped him to relitigate some
issues in the civil case, other issues would be litigated. (See Yarbrough, at
pp. 205–206.) Counsel might not have advised contesting every one of them,
but the jury had to decide whether McCauley’s acts were a substantial factor
in causing Mary D. harm; whether his conduct was outrageous; whether he
intended to cause Mary D. emotional distress; whether she suffered
emotional distress; what were the amounts of her past noneconomic damages,
future noneconomic damages, and future economic damages; whether
20
McCauley acted with malice or oppression; and what amount of punitive
damages, if any, was appropriate.
Moreover, both Payne and Yarbrough approved postponement as a tool
for ensuring access so long as the delay did not substantially prejudice the
plaintiff’s rights. (Payne, supra, 17 Cal.3d at p. 923; Yarbrough, supra,
39 Cal.3d at p. 206.) As acknowledged in Payne, it would not be fair or
practical to defer a trial until after a defendant completed a lengthy prison
sentence. (Payne, at p. 923.) But here, an appropriate continuance would not
have been a matter of years or even months. Mary D. does not argue that
any delay to enable McCauley to retain counsel would have caused her
substantial prejudice.
Citing Wantuch v. Davis, supra, 32 Cal.App.4th 786, Mary D. argues
that an indigent, incarcerated litigant “does not have the right to any
particular remedy,” and that “the trial court determines the appropriate
remedy to secure access in the exercise of its sound discretion.” (Id. at
p. 794.) She notes that Wantuch lists possible remedies, drawn from case
law, which include “use of closed circuit television or other modern electronic
media” and “transfer of the prisoner to court.” (See id. at pp. 792–793.) In
her view, it was enough for the trial court to ensure court access by arranging
for McCauley to appear by videoconference.
We are not persuaded. The fact that different remedies have been
described in the case law does not mean that any one of them may be deemed
adequate for any situation. A trial court must exercise its discretion within
the guidelines outlined in Payne, supra, 17 Cal.3d 908, and Yarbrough,
supra, 39 Cal.3d 197. (Yarbrough, at p. 207.) As Payne explains, the
question of remedy in a case like this one is straightforward. (Payne, at
p. 924.) If the defendant plans to contest the action and an adverse judgment
21
would affect his interests, then representation by an attorney is warranted.
(Ibid.) We recognize that there are circumstances in which an incarcerated
litigant’s appearance, via electronic media or otherwise, may provide
meaningful access. But such circumstances do not include trial in a case with
(1) a defendant who has asked for help securing counsel and has, or soon will
have, the ability to pay for counsel, (2) disputed facts on at least some
important issues, and (3) significant financial exposure.
In addition, we do not agree that evidence of McCauley’s
videoconference participation in pretrial and trial shows that he had
meaningful access—thus suggesting that the trial court had acted
reasonably. First, we review the trial court’s exercise of discretion as of the
time it was exercised, not in light of subsequent events. (See People v. Welch
(1999) 20 Cal.4th 701, 739.) Second, and regardless, we find Mary D.’s
characterization of McCauley’s participation to be overstated. When
McCauley was represented at the outset of this action, the parties’ attorneys
estimated that trial would take 10 days. It ended up taking less than four.
McCauley entered no exhibits into evidence and he called no witnesses. His
opening statement lasted one minute, in contrast to Mary D.’s, which lasted
15. The only objection he made was overruled. He made no closing
argument. He made no objections to jury instructions or the verdict form.
His lack of legal training left him little more than a spectator to the
proceedings against him.
Under these circumstances—where McCauley needed a relatively brief
continuance to use the funds the family court had finally released for him to
retain counsel—we do not agree that the trial court adequately protected his
constitutional right of meaningful access by allowing him to participate by
videoconference.
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E.
Mary D. argues that any error was harmless. The parties agree that
the standard in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)
applies when the denial of a continuance that results in a deprivation of
counsel violates a constitutionally protected right. (See In re Marriage of
Tara & Robert D. (2024) 99 Cal.App.5th 871, 888, fn. 7.)8
To be sure, this is not a case in which McCauley’s liability was in doubt.
His criminal convictions, which were final, prevented him from relitigating
the facts of what he had done to Mary D. throughout her childhood. Even
with a lawyer, McCauley would almost certainly be found liable to her for
substantial damages. But McCauley contends that the numbers suggested by
Mary D.’s counsel and adopted by the jury were not based on specific
testimony or evidence, and a lawyer could have provided assistance in
reducing them. McCauley himself presented no alternative argument or
evidence. Mary D. argues that it is equally plausible that the jury would
have arrived at the same damages figures—those proposed by her counsel
and unrebutted by McCauley—even if McCauley had been represented. But
“equally plausible” is not the standard that the parties agree applies. (See
Chapman, supra, 386 U.S. at p. 24.)
Mary D. also contends that McCauley has failed to show prejudice
because he “makes no representation” regarding the availability of a lawyer
had the trial court granted his continuance request. But under the Chapman
8 This case, cited by Mary D., did not hold that Chapman necessarily
applies; rather, it clarified that it applied the standard in People v. Watson
(1956) 46 Cal.2d 818, 836, because there was no claim that the denial of the
continuance, although it resulted in a deprivation of trial counsel, gave rise to
a constitutional violation. (In re Marriage of Tara & Robert D., supra,
99 Cal.App.5th at p. 888, fn. 7.) Without deciding the issue, we accept the
parties’ reliance on the Chapman standard for purposes of this decision.
23
standard, it is the party benefiting from a constitutional error who bears the
burden of showing the error was harmless. (Chapman, supra, 386 U.S. at
p. 24.) McCauley had just learned that he had access to the funds when the
trial court declined any continuance. Mary D. offers no reason to conclude
that McCauley could not have found a lawyer once he was able to pay for one.
Accordingly, we cannot “declare a belief that [the court’s error] was
harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.)
F.
McCauley contends that reversal based on the trial court’s denial of a
continuance should result in a remand for a new trial only on liability and
compensatory damages—not on punitive damages. He argues that the
punitive damages award is not supported by substantial evidence, and
therefore the award should be vacated and not retried. McCauley cites no
authority, however, for the proposition that he may challenge the fairness of
the proceeding as a whole but exempt from retrial an issue on which he
claims Mary D. failed to carry her burden of proof, and we are not bound to
develop the argument for him. (In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 830.) Accordingly, we do not reach McCauley’s
substantial evidence challenge to the punitive damages award. We remand
the issue of punitive damages for retrial along with the issues of liability and
tort damages.
II.
McCauley contends that the trial court abused its discretion by
admitting eight school photographs of Mary D., one for each year from
prekindergarten through third grade and sixth grade through eighth grade.
Because this issue is likely to recur in a new trial, we explain why we are
24
unpersuaded by McCauley’s argument that the court abused its discretion.9
We first recount additional facts for context, and then we address the
argument.
McCauley was Mary D.’s uncle and godfather. When Mary D. was in
prekindergarten, McCauley started picking her up from school three or four
days a week. Mary D. first remembers him abusing her when she was in
kindergarten or first grade. The abuse did not stop until she was in high
school. At trial, Mary D. was 29 years old.
Though relevant evidence is generally admissible (Evid. Code, § 351), a
trial court may exclude it if its probative value is substantially outweighed by
the probability that it will create substantial danger of undue prejudice (id.
at § 352). “Relevant evidence” means evidence having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the
determination of the action. (Id. at § 210.) “Evidence is substantially more
prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable
‘risk to the fairness of the proceedings or the reliability of the outcome.’ ”
(People v. Waidla (2000) 22 Cal.4th 690, 724.) We review the trial court’s
decision to admit evidence for abuse of discretion. (Id. at p. 717.)
The photographs should have been excluded, McCauley argues, because
there was no dispute as to Mary D.’s age at the time of the abuse.10 While he
9 Because we conclude that the court did not err, and because we
include this discussion for the benefit of the parties and the court in a retrial,
we do not reach Mary D.’s argument that McCauley forfeited his argument by
failing to object. Nor do we reach McCauley’s contention that he was
prejudiced by the purported error.
10 The evidence appears to support that the abuse started when
Mary D. was in kindergarten or first grade, not when she was in
prekindergarten. McCauley does not raise this point, however, either by
alleging specific error as to the photograph from prekindergarten or
otherwise. Nor does he challenge the statement in Mary D.’s brief on appeal
25
is correct as to the lack of dispute, his argument misses the probative value,
and thus the relevance, of the photographs. (See People v. Cage (2015)
62 Cal.4th 256, 283 [prosecutor may use photographic evidence even when
defendant stipulates to a fact].) Information about a child’s age by number of
years is more abstract than a photograph that offers concrete visual details
that can help a juror understand the child’s developmental stage at that time.
Here, these visual details were particularly useful given that the plaintiff
sitting before the jurors in the courtroom was then a young adult. Further,
we agree with Mary D. that her ages, and the related developmental stages,
during the time that McCauley abused her were relevant to whether
McCauley acted with malice, to whether his conduct was outrageous, and to
the physical pain, mental suffering, loss of enjoyment of life, grief, anxiety,
humiliation, embarrassment, worry, and emotional distress that she suffered
in the years of abuse. McCauley argues that these elements were addressed
by testimony. But “evidence does not become irrelevant simply because other
evidence may establish the same point.” (People v. Smithey (1999) 20 Cal.4th
936, 973–974.)
We are unpersuaded that the photographs presented a danger of undue
prejudice that would warrant their exclusion under Evidence Code
section 352. They were limited to one for each year. And, as Mary D. notes,
they were not selected for an emotional response. (See People v. Suff (2014)
58 Cal.4th 1013, 1070–1073.) They do not, for example, show her playing
with toys or a pet or hugging a family member or a friend. (See ibid.) We
that the photographs “show [her] at each age she was abused by
McCauley . . . .” Accordingly, we do not address the prekindergarten
photograph separately from the others.
26
conclude that the photographs’ potential for prejudice did not substantially
outweigh their probative worth.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court
for a new trial. The court is instructed to ensure McCauley’s meaningful
access to the court consistent with this opinion if McCauley meets the
threshold requirements of Payne, supra, 17 Cal.3d 908, at the time of the
remand. McCauley is entitled to recover costs on appeal.
GOLDMAN, J.
WE CONCUR:
STREETER, Acting P. J.
SWEET, J. *
*Judge of the Marin Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
27
Trial Court: Alameda County Superior Court
Trial Judge: Honorable Somnath Raj Chatterjee
Counsel for Plaintiff and Mazur & Mazur, Janice Ryan Mazur
Respondent:
Counsel for Defendant and Law Offices of Tiffany J. Gates and
Appellant: Tiffany J. Gates
Law Offices of Scott A. Bonzell and Scott
A. Bonzell
28