Nadeem v. KMPG























Filed 12/4/12 Nadeem v. KMPG CA1/3

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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SARIA NADEEM, Plaintiff and Appellant, v. KPMG LLP, Defendant and Respondent.

A132832 (San Francisco County Super. Ct. No. CGC-08-483071)

Saria
Nadeem sued KPMG LLP for damages for harassment,
discrimination, and retaliation arising out of her ten-month tenure as a
KPMG employee. Nadeem was originally
represented by counsel, but proceeded in a jury trial in propria persona. The jury returned a verdict in favor of
KPMG. Nadeem challenges the judgment on
numerous grounds, alleging evidentiary errors, potential jury href="http://www.fearnotlaw.com/">irregularities, misconduct of defense
counsel, and judicial bias. Her
arguments lack merit and we affirm.

>I.
BACKGROUND

Consistent
with well-established rules of appellate review after a trial on the merits, we
view the facts in the light most favorable to the judgment. (Hub
City Solid Waste Services, Inc. v. City of >Compton (2010)
186 Cal.App.4th 1114, 1119.) Moreover,
since Nadeem raises no challenge based on the lack of substantial evidence, we
need not summarize the entire record.

Nadeem,
a CPA, received a job offer from KPMG, one of the “big four” accounting firms,
while she was studying for her master’s degree in tax law at Cal State Hayward,
and she started work at KPMG in October 2007.

That
year, Nadeem worked on three projects for Senior Manager Marcia Harris. According to Harris, Nadeem did not complete
the first two projects, and did not work diligently on the third or appear to
understand it. Harris reported the
deficiencies in Nadeem’s performance to Manager Vivian Wang.

Nadeem
also failed, after two attempts, to complete a project for Senior Associate
Emily Hall, who testified that Nadeem did not listen to her feedback after the
first attempt. Hall worried that she was
being unclear, so she repeated her instructions to Nadeem in Wang’s
presence. Hall testified that she was
“very specific on points about what needed to be done and what hadn’t been
done. [¶] And instead of addressing
those points, Saria would basically come back with real bizarre comments about
how she’s a CPA, she has a Masters in Taxation . . . .” Hall said, “It was just frustrating. I worked with tons of associates in my
life. I never experienced anything like
that.”

In
late January or early February 2008, Nadeem was assigned to work on a project
with Partner Eric Hoedt, Senior Manager Kevin Nishioka, and Senior Associate
Aaron Hammon. Hammon testified that
Nadeem created problems by asking Senior Associate Jaspreet Singh and Associate
Patrick Birchfield, who were not on the project team, for help. Hammon recalled an instance when Nadeem
approached him while he was on the phone.
He told her to wait for a second, and she went to Singh for
assistance. When Hammon reminded Nadeem
that she should be directing her questions to him, she said that “she liked
working with Jaspreet better; that she didn’t want my help,” and walked away to
her cubicle. Hammon followed and told
her, “I am not the bad guy here. I am
really here trying to help you grow as a professional to work on the project
together.” But Nadeem ignored him and
put her hand up so that he could not see her face. Hammon was “shocked” and did not know what to
do. “This hadn’t happened to [him] in
the two plus years [he] had been at KPMG . . . managing other folks on other
projects.”

Hammon
reported the incident to Wang, and Hammon, Wang, and Nishioka met with Nadeem
on February 6. Nishioka testified that
when Nadeem objected to the instruction to seek help within her project team,
he said something to the effect that “the workplace is not a democracy.” Wang recalled Nishioka talking in a raised
voice after Nadeem repeatedly interrupted him.
Nishioka wrote a memorandum about the meeting to Edward Silicani, the
partner in charge of KPMG’s Northern California Tax Practice. Nishioka said that he wanted to record what
transpired at the meeting because “[n]ever before or never since in my professional
experience have I worked with an employee who was so uncooperative and so
resistant to following instruction.”
Nishioka reported that at one point in the meeting Nadeem stated that he
was discriminating against her because she had seen him help associates who
were working on projects for other managers.

Nishioka
and Wang also reported their concerns about the meeting to HR Manager Adrian
Pancamo. Pancamo met with Nadeem, and
she told him that Nishioka discriminated against her by helping other people
while refusing to help her. She also
said that Hammon made her uncomfortable because he sat or stood too close to
her when they interacted at the office.
Nishioka told Pancamo that he could not remember refusing to help
Nadeem. Hammon told Pancamo that he had
never sat or stood too close to Nadeem, and Nishioka, Wang, and Singh told
Pancamo that they had never seen Hammon sitting or standing too close to Nadeem
or anyone else. Pancamo concluded that
Nadeem’s claims of discrimination or harassment were unfounded.

KPMG
had a happy hour at a pub after work on Friday, February 22. People reported to Pancamo that Nadeem
behaved inappropriately at the party, slurring her words, falling to the floor,
and vomiting in the bathroom and in the backseat of a car that belonged to a
co-worker’s boyfriend. Dean Kamahele,
the KPMG partner who interviewed and hired Nadeem, testified that she followed
him around throughout the party to the point were he felt compelled to
leave. Nadeem acknowledged that she had
a cocktail and a glass of wine and that she vomited in the bathroom, but
testified that the other reports of her behavior were untrue. She went on disability leave the following
Monday, saw a psychologist, and was prescribed Zoloft.

When
Nadeem returned from leave on March 24, she was given a document entitled
“Final Warning” based on her “[un]professional decorum” and “completely
inappropriate and unacceptable” behavior at the happy hour. The reprimand increased her anxiety, and she
went back on disability leave until June 16.

On April 11, Nadeem wrote a letter to Shaun
Kelly, head of KPMG’s national tax operations, and requested a transfer from
the Federal Tax Compliance Department to the Consulting Department. She alleged, among other things, that Wang’s
behavior and Nishioka’s attitude toward her had been discriminatory, and that
Nishioka and Hammon had made “some racist comments about my background.” During trial Nadeem testified that Hammon
also sexually harassed her by, among other things, “touch[ing] my hand,
rubb[ing] against me,” referring to his muscles, and telling her she should
date him. On cross-examination Nadeem
said she failed to mention Hammon’s harassment in her April 11 letter because,
“I forgot, maybe. I don’t know.”

Karen
Frechou, a KPMG Associate Director of HR, was assigned to investigate the
claims made in Nadeem’s April 11 letter, and met with her on June 26. Nadeem told Frechou that at the February 6
meeting Nishioka called her a “little brown girl.” Nadeem did not voice any complaints about
Hammon. Fechou met with everyone
mentioned in the letter and concluded that nothing reflective of discrimination
occurred at the February 6 meeting.

On
July 7, Silicani, Pancamo, and Wang met with Nadeem and gave her a Performance
Improvement Plan (PIP) that noted deficiencies in her performance in three
areas: difficulty following
instructions; lack of open and honest communication; and unexpected absences or
leaving work early without permission.
Silicani began to review the document with Nadeem, but she said she felt
ill and the meeting lasted only two or three minutes.

The
evening of July 15, Nadeem sent Pancamo and Wang an email contesting the
deficiencies cited in the PIP. They met
with Nadeem about the PIP the next day.
Pancamo received reports from Wang on July 21 and 23 that Nadeem’s
problems in the areas identified in the PIP were continuing. Wang testified that Nadeem yelled at her on
the afternoon of the 23rd.

Nadeem’s
employment was terminated on July 24th.
While Pancamo was escorting Nadeem out of the building, a complaint she
had filed with the EEOC charging KPMG with discrimination was delivered to his
desk. He did not investigate the allegations in the
complaint because Nadeem’s employment was terminated before he received
it.

>II.
DISCUSSION

A.
Evidentiary Issues

(1) Levy’s Testimony

Dr.
Mark Levy is a psychiatrist who testified for KPMG. Dr. Levy interviewed Nadeem and concluded
that she suffered no “emotional damages” as a result of the termination of her
employment. Nadeem objected to Levy’s
testimony on the ground that his opinion was based in part on tests
administered to her by Dr. Ronald Roberts, a psychologist.

The
court ruled that Levy’s testimony would be limited to the issue of Nadeem’s
emotional distress damages. When the
scope of Levy’s testimony was discussed at trial, the court advised KPMG that
Levy’s “got to be pretty careful” not to say “the witness is making it up
because of a psychological condition.”
The court observed that “[w]e do not have experts on credibility,” and
warned that it would strike Levy’s testimony if it was not confined to Nadeem’s
alleged emotional distress. The court
was concerned enough about the scope of Levy’s testimony to ask during his
direct examination —“the first question,” the court said, that “I have asked in
this trial” — if Levy had been retained to evaluate whether Nadeem’s
termination caused her emotional distress.
When Levy answered, “Yes,” the court stated, “The Doctor will then
confine his testimony to that area.”

Dr.
Levy said that he hired Dr. Roberts to give Nadeem a battery of psychological
tests, including the Minnesota Multiphasic Personality Inventory test and the
Rorschach test. Levy worked from
computer-generated summaries of the test results, and had not seen the results
themselves. The testing revealed little
or no evidence of anxiety or depression, but showed that Nadeem suffered from
“Undifferentiated Somatoform Disorder” and a “Personality Disorder Not
Otherwise Specified With Histrionic and Dependent Traits.” Undifferentiated Somatoform Disorder is a
chronic condition, usually established in a person’s early to mid-twenties,
where the individual “expresses their emotional upset through physical
discomfort.” Nadeem’s personality
disorder would similarly have been established during her adolescence. Both conditions were “underlying, long
standing patterns to her behavior,” and thus neither was related to her
employment with KPMG.

On
cross-examination, Nadeem asked what evidence Levy had of her personality disorder. Levy answered: “The Rorschach test report which is generated
by a computer based on your responses to the ink blots said: ‘She demonstrates a mild to moderate
impairment of her reality testing capacity whereby she tends to misperceive
events and form mistaken impressions of people and the significance of their
actions. This may be an adaptive
liability for her that results at times in instances of poor judgment in which
she fails to anticipate the consequences of her actions and misconstrues what
constitutes appropriate behavior.’ ”

Nadeem
argues, citing what is now Code of Civil Procedure section 2034.260,
subdivision (c), that Levy’s testimony was erroneously admitted because KPMG
did not provide her with a declaration describing the general substance of the
testimony he was expected to give.
KPMG’s brief states that it provided the required declaration. Nadeem’s reply brief calls this statement an
“outright lie.” Whether or not the
declaration was furnished, Nadeem’s argument fails because she has not
established that she objected during trial to admission of Levy’s testimony on
the ground she now asserts. (Evid. Code,
§ 353, subd. (a) [a timely objection, “so stated as to make clear the
specific ground of the objection” is required].) Moreover, Nadeem was not prejudiced by any
failure to furnish the declaration. She
was aware, having deposed Levy, of the substance of his anticipated testimony.

Nadeem
argues that admission of Levy’s testimony violated Evidence Code
section 804, subdivision (c).
Evidence Code section 804, subdivision (a) states: “If a witness testifying as an expert
testifies that his opinion is based in whole or in part upon the opinion or
statement of another person, such other person may be called and examined by
any adverse party as if under cross-examination concerning the opinion or
statement.” Evidence Code
section 804, subdivision (c) states:
“Nothing in this section makes admissible an expert opinion that is
inadmissible because it is based in whole or in part on the opinion or
statement of another.” Nadeem’s Evidence
Code section 804 argument must be rejected because she has not established it
was raised in the trial court. (Evid. Code,
§ 353, subd. (a).) The argument
must also be rejected because it is advanced for the first time in Nadeem’s
reply brief. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn.
11 (Reed).) Even if it were preserved and properly
asserted, the argument would fail because it erroneously presumes that an
expert cannot rely on inadmissible hearsay.
(See, e.g., Korsak v. Atlas
Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524 [hearsay evidence of a type
reasonably relied upon by professionals in the field may be used to support an
expert opinion even though the evidence is otherwise inadmissible].)

During
trial Nadeem did object to Dr. Levy’s testimony on the ground that he should
not have been allowed to testify about tests administered by Dr. Roberts. Her objection was correctly overruled. (See 1 Witkin, Cal. Evidence (5th ed. 2012)
Opinion Evidence, § 34, p. 653 and authorities cited (hereafter Witkin) [a
doctor may base an opinion on an examination made by another doctor].)

Nadeem
asserts that Levy’s “hearsay opinion struck [her] like weapons of mass
destruction at the trial,” and that the court’s failure to exclude his
testimony “left [her] as a lamb to wolves.”
She views the court’s handling of Levy’s testimony as one of the many
instances of alleged judicial misconduct
in the case, exhibiting what she describes as “a systematic pattern of judicial
hostility which consisted of continual assistance of [the] defense at the
expense of plaintiff.”

But
whatever prejudice Nadeem may have suffered due to Levy’s testimony is irrelevant
unless the testimony was erroneously admitted, which it was not. The record shows that the court carefully
circumscribed Levy’s testimony to prevent it from becoming an unduly
prejudicial opinion about Nadeem’s credibility.
Contrary to her impression, the court questioned Levy to help, not harm,
her case by limiting the scope of his opinion.
Moreover, Nadeem was the one who elicited the testimony that, because of
the alleged disorder, “she tends to misperceive events and form mistaken
impressions of people and the significance of their actions.” Thus, she cannot properly complain about the
introduction of that evidence.

(2) EEOC Case Log and Complaint

Nadeem
contends that the court erred when it excluded her exhibits 32 and 33.

(a) Exhibit 32

Nadeem
testified that she filed “a charge of discrimination based on sex retaliation
and national origin” on July 17, 2008.
Exhibit 32 purported to be the EEOC case log showing activity on the
charge. The date “7/23/08” was
handwritten on the log as the date of “Notice Served on Respondent.” When Nadeem attempted to testify regarding
what she was told when she asked an EEOC case worker when the charge was served
on KPMG, the court sustained KPMG’s hearsay objection. Nadeem then attempted to testify that the
EEOC sent her a copy of the case log.
KPMG objected on the grounds of hearsay and lack of foundation, and that
objection was also sustained. When
Nadeem said that the log was not being offered for the truth of its contents,
the following colloquy ensued: “The
Court: All right. Are you attempting to offer what you were
told? [¶] [Nadeem]: Yes. [¶] The
Court: Sustained If you’re offering a piece of paper, you have
other evidentiary requirements. [¶] [Nadeem]:
This case log is related to my complaint which I — [¶] The Court: You are going to need to have some other
evidentiary requirements than what you have offered so far. I suggest you move on to the next area.”

Exhibit
32 was next discussed during argument on KPMG’s unsuccessful motion for a
nonsuit. The court explained to Nadeem
that the document had not been authenticated.
Exhibit 32 was discussed again after Nadeem’s initial closing argument
to the jury, when she told the court that she believed it should be in
evidence. The court ruled that no
foundation had been laid for its admission.

Nadeem
argues that exhibit 32 was admissible under the official records exception to
the hearsay rule. (Evid. Code,
§ 1280.) In general, “even though a
writing is relevant and not subject to an exclusionary rule . . . a
foundation must be laid by authentication before it can be introduced into
evidence.” (2 Witkin, >supra, Documentary Evidence, § 3,
p. 151.) Exhibit 32 was not
authenticated. The court can admit an
official record or report “ ‘without necessarily requiring a witness to testify
as to its identity and mode of preparation if the court takes judicial notice
or if sufficient independent evidence shows that the record or report was
prepared in such a manner as to assure its trustworthiness.’ ” (1 Witkin, supra, Hearsay, § 247, p. 1113.) However, judicial notice was not requested,
and no independent evidence regarding the report’s preparation was identified
to the trial court. Thus, the court did
not err in excluding exhibit 32.

(b)
Exhibit 33

Exhibit
33 was a copy of Nadeem’s July 17, 2008, complaint to the EEOC alleging that
she had been subject to discrimination because of her gender and national
origin. Any error in excluding this
exhibit was harmless because in the special verdict on Nadeem’s retaliation
claim the jury concluded that she had complained to KPMG management about being
harassed or discriminated against because of her gender and national origin
before her employment was terminated.
(Evid. Code, § 353 [erroneous exclusion of evidence is not
reversible error unless it caused a miscarriage of justice].)

(3) Other Evidentiary Issues

Nadeem
argues that the court erroneously admitted defense exhibit 57, which was a copy
of an email from Wang to Pancamo reporting on Nadeem’s continued problems with
the performance issues identified in her PIP.
The court overruled Nadeem’s hearsay objection because the exhibit was
not offered for the truth of its contents, but only to show what information
KPMG’s human resources personnel received before KPMG decided to terminate
Nadeem’s employment. The court did not
err in admitting the document for this nonhearsay purpose. (See generally 1 Witkin, supra, Hearsay, § 1 [defining hearsay].)

Nadeem
argues that the court violated her Fourteenth Amendment right to equal
protection by overruling “almost each and every hearsay objection” she made,
but the court’s evidentiary rulings did not implicate that constitutional
guarantee.

B. Jury
Issues

(1) Juror Identifying Information

Nadeem
contends that the court erred when it denied her application for the addresses
and phone numbers of the jurors who served in the case so she could investigate
whether any juror misconduct occurred.
Nadeem’s appellate briefs state that she was informed by juror Sally
Kipper that the jurors considered evidence that was not presented in court and
“there was unauthorized contact with the jury.”
Although Nadeem’s opening brief states that she received this
information from Kipper in May 2011, she did not include it in her June 2011
declaration in support of her application for the juror information. Her declaration identified no cause to
suspect any juror misconduct, but she argued in the application that she was
entitled to the juror identifying information under Code of Civil Procedure
section 237, subdivision (a).

Code
of Civil Procedure section 237 provides in part: “(a)(1) The names of qualified jurors drawn from the
qualified juror list for the superior court shall be made available to the
public upon request unless the court determines that a compelling interest, as
defined in subdivision (b), requires that this information should be kept
confidential or its use limited in whole or in part.

“(2) Upon the recording of a jury’s verdict in a
criminal jury proceeding, the court’s record of personal juror identifying
information of trial jurors, as defined in Section 194, consisting of names,
addresses, and telephone numbers, shall be sealed until further order of the
court as provided by this section. [¶] . . . [¶]

“(b) Any person may petition the court for access
to these records. The petition shall be
supported by a declaration that includes facts sufficient to establish good
cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if
the petition and supporting declaration establish a prima facie showing of good
cause for the release of the personal juror identifying information, but shall
not set the matter for hearing if there is a showing on the record of facts
that establish a compelling interest against disclosure. A compelling interest includes, but is not
limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for
hearing, the court shall by minute order set forth the reasons and make express
findings either of a lack of a prima facie showing of good cause or the
presence of a compelling interest against disclosure.

“(c) If a hearing is set pursuant to subdivision
(b), the petitioner shall provide notice of the petition and the time and place
of the hearing at least 20 days prior to the date of the hearing to the parties
in the criminal action. The court shall
provide notice to each affected former juror by personal service or by
first-class mail, addressed to the last known address of the former juror as
shown in the records of the court. . . . Any affected former juror may appear
in person, in writing, by telephone, or by counsel to protest the granting of
the petition.”

The
court here apparently followed the procedures set forth in subdivisions (b) and
(c) of Civil Code section 237. Notice of
a hearing on the application was sent to the former jurors, one of whom
appeared and objected to disclosure of her identifying information. The order denying Nadeem’s application for
juror information is not included in the clerk’s transcript, but is attached to
her civil case information statement on appeal.
The order did not cite any compelling interest that militated against
disclosure of the information.

It
is not entirely clear whether Civil Code section 237, subdivision (b)
applies in a civil case. The reference to a “criminal action” in the first
sentence of subdivision (c) suggests that it may not, but the language of
subdivision (b) is not limited to criminal cases. If subdivision (b) applied, then the
withholding of juror information was not an abuse of discretion because no good
cause was shown for its disclosure. (See
People v. Jones (1998) 17 Cal.4th
279, 317 [scope of review of rulings under Code Civ. Proc., § 237].)

If
subdivision (b) did not apply, then there was no abuse of the court’s inherent
discretion to protect juror privacy.
(See generally Townsel v. Superior
Court (1999) 20 Cal.4th 1084, 1091, 1096 [entirely apart from Code Civ.
Proc., § 237, court has inherent power to protect juror privacy in civil
as well as criminal cases; exercise of that power is reviewed for abuse of
discretion].) A litigant seeking jurors’
addresses and phone numbers must make “ ‘a sufficient showing to support a
reasonable belief that jury misconduct occurred, that diligent efforts were
made to contact the jurors through other means, and that further investigation
is necessary to provide the court with adequate information to rule on a motion
for new trial . . . [¶] Absent a satisfactory, preliminary
showing of possible juror misconduct, the strong public interests in the
integrity of our jury system and a juror’s right to privacy outweigh the
countervailing public interest served by disclosure of the juror information as
a matter of right in each case.’ ” (>Id. at pp. 1093–1094.) Nadeem did not make the requisite preliminary
showing.

Nadeem’s
argument for error in this case finds support in a treatise that states, citing
Code of Civil Procedure section 237, subdivision (a): “To investigate claims of juror misconduct,
one side or the other may ask the court clerk or the jury commissioner for the
jurors’ addresses and telephone numbers.
In civil cases, such information ‘shall’ be made available upon request
unless the court determines that a ‘compelling interest’ requires
confidentiality.” (Wegner et al., Cal.
Practice Guide: Civil Trials and
Evidence (The Rutter Group 2012) ¶ 18:138.1, p. 18-34 (rev. #1
2012).) We do not agree with this
statement because Code of Civil Procedure section 237, subdivision (a)
refers only to disclosure of jurors’ names, which were revealed here during
voir dire, not other juror information such as addresses and telephone numbers. (See Code Civ. Proc., § 206, subd. (g)
[defining “personal juror identifying information” for purposes of Code Civ.
Proc., § 237].) Thus, the court
could deny Nadeem’s application without finding that the decision was justified
by a compelling interest.

(2) Other Jury Issues

Nadeem
contends that KPMG improperly used peremptory challenges to exclude women from
the jury. But Nadeem’s opening brief
only provides the following details of voir dire. “On March 23, 2011, Defense Counsel used
peremptory challenges to exclude women from the jury. Jury consisted of 9 men and only 3
women.” Nadeem cannot prevail on a jury
selection argument without discussing what was said during voir dire, and has
forfeited this argument by inadequate briefing.
(See, e.g., Kelly v. CB&I
Constructors, Inc. (2009) 179 Cal.App.4th 442, 452 [issues not properly
addressed may be deemed abandoned].)

Nadeem submits that the court erred by failing
to instruct the jury on intentional infliction of emotional distress. However, she did not plead a cause of action
for intentional infliction of emotional distress in her complaint, and she does
not cite to any request in the record for such a jury instruction. Therefore, she has no basis to assert the
alleged error. (United States Golf Assn. v. Arroyo Software Corp. (1999) 69
Cal.App.4th 607, 623 [“appellant cannot challenge a judgment on the basis of a
new cause of action it did not advance below”].)

Nadeem
argues that the standard instruction on hostile work environment harassment,
CACI No. 2521A, as furnished to the jury here referred to harassment based on
national origin as well as gender.
However, she misreads the instruction when she claims that it “add[ed]
an additional requirement of national origin to the harassment claim.” The instruction required proof that she was
“subjected to unwanted harassing conduct because of her gender, apparent
national origin, or a combination
thereof.” (Italics added.) Since the grounds of liability are set forth
in the disjunctive, the instruction did not require proof of both harassment
based on national origin and gender.
Rather, harassment based on national origin was an independent ground of
liability under the instruction, even if no harassment based on gender
occurred. Nadeem was thus helped, not
hurt, by the reference to national origin.

Nadeem
argues that the court erroneously informed the jury that it could not request
readings of testimony during deliberations.
This argument misreads the record.
The court did not say that. The
court told the jury that readings of testimony were available, but that
requests for them were time consuming and should be narrowly focused. No error appears.

Nadeem
argues that the court violated Code of Civil Procedure section 614 by
communicating with the jury outside her presence. Code of Civil Procedure section 614 requires
that the parties or counsel be present when the court addresses any
“disagreement between [the jurors] as to any part of the testimony, or . . .
any point of law arising in the cause.”
Nadeem was not present when the jurors returned to court at the end of
their first day of deliberations. Before
the proceedings were adjourned, a juror asked whether the jury’s service would
be over after it rendered its verdicts, or there was a “a possibility that one
side or the other may want to go through each one us for another day or
two?” The court responded that polling
of the jury would take only ten or 15 minutes.
Since the inquiry and the court’s answer were not about a point of law
or fact in the case, they did not violate Code of Civil Procedure
section 614, and Nadeem could not conceivably have been prejudiced by the
court’s advice.

Nadeem
notes that, before proceedings adjourned on the first day of deliberations, the
court failed to admonish the jurors pursuant to Code of Civil Procedure
section 611 that they were not to investigate or discuss the case. However, the jurors had frequently received
that admonition during the trial, and there is no reasonable prospect that they
would have disregarded it during deliberations.

C. Misconduct
of Counsel

Nadeem
maintains that KPMG’s counsel committed misconduct at numerous points in his
closing argument to the jury. All but
one of her contentions are forfeited because she failed to object when the
arguments were made. (See, e.g., >Sabella v. Southern Pac. Co. (1969) 70
Cal.2d 311, 318 [objection and request for jury admonition are required unless
admonition would have been ineffective; admonitions are rarely
ineffective].) The only point at which
Nadeem objected during closing argument was when counsel began to refer to her href="http://www.fearnotlaw.com/">personality disorders. The objection was correctly overruled because
counsel was merely recounting evidence introduced in the case.

Even
if Nadeem had preserved her other allegations of misconduct for appellate
review we would conclude that they lack merit.
All of the arguments Nadeem regards as objectionable were well within
counsel’s wide latitude to argue all reasonable inferences from the evidence. (Garcia
v. ConMed Corp. (2012) 204 Cal.App.4th 144, 147–148.)

D.
Judicial Bias

Nadeem
argues that the judge was biased against her and tarnished her case in the eyes
of the jury with statements during the trial.
“ Bias or prejudice
consists of a ‘mental attitude or disposition of the judge towards a party to
the litigation
. . . .’ ” (>Pacific etc. Conference of United Methodist
Church v. Superior Court (1978) 82 Cal.App.3d 72, 86.) Bias is evaluated objectively by asking
whether a reasonable person “ ‘ “ ‘would entertain doubts
concerning the judge’s impartiality.’ ” ’ ” (Hall
v. Harker (1999) 69 Cal.App.4th 836, 841 (Hall).) “Neither strained
relations between a judge and an attorney” (Roitz
v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716,
724), nor a judge’s expressions of “understandable frustration” (>People v. Brown (1993) 6 Cal.4th 322,
337 (Brown); Hall, supra, 69
Cal.App.4th at p. 843) establish bias.
Nadeem’s allegations of bias do not withstand scrutiny.

She contends,
for example, that the judge “mocked the self-represented plaintiff when he said
to the jury that a self-represented litigant is like a pregnant woman trying to
deliver her own baby.” The remark in question was
made during the voir dire of a prospective juror who was less than a month
within the due date for her second child.
The juror, a psychiatrist, said she was “somewhat disconcerted that the
client is representing herself.” The
following exchange ensued: “Q. Yeah. [¶] A. I have
concerns about that. [¶] Q. What’s the
concern? [¶]
A. Just, in the process of negotiating,
that it’s very hard to negotiate on one’s own behalf when things are sort of
the more high stakes it is for an individual personally, it’s the more
vulnerable we are, the less capable we are of navigating a negotiation. [¶] Q. Like
you would not deliver your own baby, for instance? [¶] A. Yes. [¶] Q. By way of
example. [¶]
A. Yes. [¶] Q. Well, but people have done it all along and
delivered their own babies, right? [¶] A. Yeah. Not my choice. [¶] Q. Right.
Probably even thousands of years ago, probably not a first choice. [¶] A. Yeah. [¶] Q. So I gave
it a little thought, and the fact that somebody has or has not their own lawyer
is not something a jury takes into account when they make their decision.
. . .” (Italics added.)

In
this context, the court’s remark was not at all improper. The court was simply using a facet of the
juror’s life — her pregnancy — to explore whether she may have been biased
against Nadeem as a self-represented litigant.
The exchange assisted Nadeem by making it clear that her pro per status
could not be held against her.

Nadeem
objects to the court’s statements concerning her exhibits 17 and 18, which
consisted of emails sent on July 15, 2008.
Nadeem authored the email depicted in exhibit 17, KPMG personnel
authored those depicted in exhibit 18, and there was some confusion about the
sequence of the messages. When the
sequence was discussed, the court observed that the emails were “ — a
series. In other words, 17 got chopped
off of 18. That email thing is all very confusing. Why don’t we go back to letters and
stamps.” Nadeem reads the italicized
sentence as “describ[ing] the Plaintiff’s evidence to be ‘very confusing’ at
the very best,” but it was nothing of the sort.
The statement was merely a comment about email correspondence generally,
not about the quality of Nadeem’s evidence.

Nadeem
contends that the court showed bias when she sought to introduce exhibit 18
into evidence. The court asked KPMG’s
counsel if he had any objection, counsel objected that no foundation had been
laid for the document’s admission, and the court sustained the objection,
explaining to Nadeem, “There has to be a foundation for an exhibit.” Again, we discern no bias. The court simply made a correct evidentiary
ruling.

Nadeem
cites, as another example of alleged bias, the fact that the court asserted and
sustained its own objection to an answer she gave during her
cross-examination. After hearing the
lengthy and at least partially nonresponsive answer, the court said, “Sustained.
Narrative. Next question.” This sua sponte objection was at worst an
isolated expression of understandable frustration that did not establish
bias. (Brown, supra, 6 Cal.4th at p. 337; Hall, supra, 69
Cal.App.4th at p. 843.)

Nor is
any bias apparent in the other portions of the transcript Nadeem cites. Her accusations against the judge are
unfounded.

E. Cost Bill

Nadeem contests certain of the costs that
were awarded to KPMG. We do not address
these arguments because they are raised for the first time in her appellant’s
reply brief. (>Reed, supra, 106 Cal.App.4th at p. 1372,
fn. 11.)

>III.
DISPOSITION

The
judgment is affirmed.











_________________________

Siggins,
J.





We concur:





_________________________

McGuiness, P.J.





_________________________

Jenkins, J.