Farmer v. Collins CA2/4 ( 2021 )

Filed 12/23/21 Farmer v. Collins CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
ERICA FARMER,
B302578
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. SF001701)
SHAWN COLLINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Rolf M. Treu, Judge. Affirmed in part,
dismissed in part.
Shawn Collins, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant-father Shawn Collins appeals from an
August 2019 judgment entered after trial, awarding primary
physical custody of his daughter Alyssa (then 11 years old) to
Alyssa’s mother, respondent Erica Farmer.1 Father
contends numerous errors occurred in the proceedings below.
Specifically he argues: (a) the court erred in November 2017,
in ordering him to undergo hair follicle drug testing; (b) the
court erred in December 2017 and January 2018, in granting
Mother’s ex parte request to alter Alyssa’s custody
arrangements based on his failure to submit to hair follicle
testing; (c) the court denied Father due process by receiving
into evidence at the April 2019 trial a custody evaluation
report; (d) the court failed in its duty to “recognize . . .
collusion” between Mother’s counsel and the custody
evaluator; (e) the court erred in denying Father’s request to
continue the April 2019 trial; and (f) the court violated
Father’s due process rights at trial in various ways. Father’s
notice of appeal also claims he is appealing from an order
denying a motion for a new trial. Because his brief is devoid
of arguments as to why that order was erroneous, we deem
that portion of the appeal abandoned. (See, e.g., In re Sade
C. (1996) 13 Cal.4th 952, 994 [“An appealed-from judgment
or order is presumed correct. . . . Hence, the appellant must
make a challenge. In so doing, he must raise claims of
reversible error or other defect . . . and ‘present argument
1 Mother has not appeared in this appeal.
2
and authority on each point made.’ . . . If he does not, he
may, in the court’s discretion, be deemed to have abandoned
his appeal. . . . In that event, it may order dismissal”
(citations omitted)].)
As to the remainder of his appeal, we conclude: (a) the
court did not err in ordering Father to undergo hair follicle
drug testing because he stipulated to that order; (b) any
orders granting Mother’s ex parte requests to alter Alyssa’s
custody arrangements in December 2017 and January 2018
were superseded by the August 2019 judgment; (c) the court
did not err in receiving the custody evaluation report into
evidence; (d) there was no evidence of “collusion” between
Mother’s counsel and the custody evaluator and, in any case,
the court had no “duty” to “recognize” any such collusion; (e)
the court did not abuse its discretion in refusing to continue
the trial; and (f) Father’s due process rights were not
violated. Accordingly, we affirm.
STATEMENT OF RELEVANT FACTS
A. Background
In July 2013, Mother filed a Petition to Establish
Parental Relationship, asking the court to adjudicate issues
of child support, custody, and visitation as to her and
Father’s daughter Alyssa (born August 2008).2 In August
2013, Father filed an ex parte Request for Order (RFO)
2 Mother and Father were never married.
3
seeking immediate custody of Alyssa, alleging that Mother
had been arrested and charged with domestic violence. The
court (Commissioner Matthew C. St. George) awarded
Father temporary custody of Alyssa and set an October
hearing. At the October hearing, of which Mother claims she
was unaware, the court granted Father sole legal and
physical custody of Alyssa, with reasonable visitation to
Mother.
In October 2013, Mother filed an RFO seeking custody
of Alyssa, claiming her arrest for domestic violence had been
orchestrated by an “anonymous call” and was without merit.
Mother additionally accused Father of selling and using
drugs. Father responded that Mother’s marriage and life
were “saturated with alcoholism, drug abuse and economic
instability.” He disclaimed having any issues with drugs or
alcohol and agreed to “eagerly surrender to a drug and
alcohol test at a moment’s notice should the Court deem
such tests necessary.” The court ordered a parenting plan
assessment in February 2014.
At the parenting plan assessment, the parties agreed
that Father would have temporary sole legal custody of
Alyssa, but that Mother and Father would share physical
custody, with Father having primary physical custody.
Mother was required to attend daily Alcoholics Anonymous
meetings for 90 days, followed by attendance thrice weekly.
The parties also agreed neither would drink alcohol or use
other intoxicating substances during their custodial periods.
The court adopted the agreement as its order.
4
B. The Court Awards Mother Sole Custody After
Father Fails to Submit to Hair Follicle Drug
Testing
In October 2017, Mother filed an ex parte RFO seeking
sole legal and physical custody of Alyssa. Mother claimed
that on October 22, as she was driving from Bakersfield
(where she lived with her husband) to return Alyssa to
Father’s custody, Father called her, sounding intoxicated,
and asked if she could drop Alyssa off with a relative. He
also sexually propositioned Mother. Mother drove Alyssa to
the police station and explained to officers there why she
was uncomfortable going to Father’s apartment for the
custody exchange. After police officers were unable to get
Father to answer the door at his apartment, Mother
returned with Alyssa to Bakersfield. Mother’s RFO listed
other instances in which Father was allegedly intoxicated,
intended to become intoxicated, left Alyssa with others for
long periods of time, or neglected her. Mother also provided
proof of her sobriety, claiming to have been sober for over
two years. Father submitted a declaration in which he
denied the allegations or provided his own perspective on the
incidents. The court (Judge Mitchell L. Beckloff) set the
matter for hearing in November.
At the November 2017 hearing on Mother’s RFO, the
court (Judge Hank M. Goldberg) ordered a custody
evaluation, as Mother sought primary custody of Alyssa in
Kern County (where Bakersfield is located). Both parties
agreed that the evaluation would be admissible, subject to
5
cross-examination of the evaluator. Additionally, because
each party had alleged the other abused substances, Mother
proposed they both submit to “hair follicle testing.” When
Father was asked whether he would submit to alcohol and
drug testing, the following exchange occurred:
“Mr. Collins: I mean, I will if it’s necessary.
I just don’t think it’s necessary.
“The Court: Well, if you want to agree. It’s
a way of alleviating concerns and showing,
gee, I’m not --
“Mr. Collins: If they want that to happen
at the mediation or whatever, I’ll do it then.
That can be a part of the order. I object to
any drug and alcohol testing.
“The Court: Are you okay with the court
making an order for drug and alcohol
testing or not?
“Mr. Collins: Yes.
“The Court: And normally the court doesn’t
do hair follicle testing unless you agree,
because the hair follicle testing can test for
longer periods of time and so on. Do you
want to do the hair follicle testing?
“Ms. Farmer: Please.
“The Court: Are you okay about that, sir?
6
“Mr. Collins: Again, why is the court even
considering it at this point?
“The Court: Sir, if you don’t want to agree,
that’s fine. If you want to agree -- some
people would like to say yeah, because I
want to show I’m not using alcohol or drugs
or I’m not abusing alcohol or drugs.
“Mr. Collins: Yes, it’s fine. But at the same
time, I’m saying I use alcohol, I just don’t
use them around my daughter.
“The Court: Are you using drugs?
“Mr. Collins: No.
“The Court: Including marijuana?
“Mr. Collins: No.
“The Court: All right. So you’re okay --
and there is nothing wrong -- if you’re not
an alcoholic there is nothing wrong with
having a glass of wine or even maybe two
glasses of wine in the evening. There is
nothing wrong necessarily with having a
glass of wine even when you’re with your
kid, if you’re not an alcoholic, as long as
you’re not driving. So both of you are
stipulating we’re going to have an order for
random alcohol and drug testing. It can be
through a hair follicle testing. Is that
correct, ma’am? Is that correct, sir?
7
“Ms. Farmer: Yes.
“Mr. Collins: Yes.”
Mother then requested that Father drug test the next day
and Father agreed. Thereafter, the minute order reflected
that “Petitioner and Respondent agree to undergo random
hair follicle testing, on 24 hour notice, twice per month. The
party that is requesting the test, pays for the test.[3 ¶]
Petitioner and Respondent are to go for random hair follicle
testing tomorrow.”
Father failed to appear for the test. After he failed to
appear for two additional tests requested for later that week
and the following week, Mother filed an ex parte RFO in
December 2017, asking the court to award her primary
custody of Alyssa, and to grant her temporary custody prior
to the RFO being heard. In Father’s declaration opposing
the request, he admitted that, at the November 2017
hearing, “[t]he judge also ordered that Petitioner and I
undergo hair follicle testing for alcohol twice per month,
despite my initial objections . . . .” However, he claimed that
at the time he agreed to the hair follicle test, he was
unaware of the cost of the exam, and would not have agreed
3 During the hearing, both parties agreed that the party
requesting that the other submit to testing would pay for it
unless the person testing was found to have “used unlawful
drugs.”
8
had he known.4 He also stated he had selected “Jeffrey
Arden” as the custody evaluator.
At the initial December hearing on Mother’s RFO,
Father admitted he was not in compliance with the court’s
drug-testing order.5 Despite Father’s claim that he took a
less expensive urine test to demonstrate he was not using
drugs or alcohol, the court (Judge Thomas Trent Lewis)
awarded Mother temporary sole legal and physical custody
of Alyssa with no visitation for Father, pending the January
2018 hearing on the RFO. Three weeks later, Father filed
his own ex parte RFO to modify custody, requesting the
court return Alyssa to his custody.
At the January 2018 hearing on both parties’ RFOs, all
counsel6 confirmed that the parties had agreed to Dr. Arden
4 At a February 2019 hearing on a motion to reconsider the
drug testing order, Father acknowledged that he would not have
been required to pay for any testing undertaken at Mother’s
request. He claimed for the first time, however, that the testing
order created “an unfair playing field” because he could not afford
to request Mother undergo the same test. This argument was not
included in his opposition to Mother’s December 2017 RFO, nor
did he articulate it at either hearing on the RFO.
5 Contrary to Father’s concession at the hearing, in a
January 2018 declaration he filed opposing Mother’s RFO, Father
contended he was “always in compliance with the Court Order”
because the court had stated the drug test “c[ould] be” a hair
follicle test, but did not mandate this type of test.
6 While Father appeared in propria persona for most of the
proceedings (and does so on appeal), he was represented by
counsel for this RFO.
9
as the custody evaluator, and that there had been a
“Sanchez waiver” with regard to his report.7 The court
(Judge Carl H. Moor) found not credible Father’s assertion
that he did not believe he was ordered to submit to hair
follicle testing, pointing to his earlier declaration otherwise,
and observed that Father’s credibility appeared to be “a
moving target.” The court also found that the drug testing
order was not one made pursuant to Family Code 3041.5, but
rather an order arising from a stipulated agreement between
the parties.8 The court concluded that the “reasonable
inference” from Father’s refusal to submit to hair follicle
testing was that “he is avoiding the testing because he’s
dirty.” The court expressly asked Father’s counsel to state
whether, understanding the court’s view that Father was
ordered to submit to hair follicle testing, and that Mother
was going to pay for the testing, Father would submit to hair
7 A Sanchez waiver “allow[s] for admission of records
containing case-specific hearsay.” (People v. Johnson (2020) 55
Cal.App.5th 96, 99, fn. 2.)
8 Family Code section 3041.5 provides that “the court may
order any person who is seeking custody of, or visitation with, a
child who is the subject of the proceeding to undergo testing for
the illegal use of controlled substances and the use of alcohol if
there is a judicial determination based upon a preponderance of
evidence that there is the habitual, frequent, or continual illegal
use of controlled substances or the habitual or continual abuse of
alcohol by the parent . . . .” (Fam. Code, § 3041.5.) It also
provides that the court “shall order the least intrusive method of
testing for the illegal use of controlled substances or the habitual
or continual abuse of alcohol . . . .” (Ibid.)
10
follicle testing in the next 24 hours. Father’s counsel
responded, “I don’t think that he should have to prove this
when he has not done anything to really place this at issue.”
The court ordered that Mother would retain custody of
Alyssa, with Father being granted monitored visits. The
court further ordered that the visits could become
unmonitored should Father comply with any requested drug
tests with clean results.9
C. Dr. Arden Performs a Custody Evaluation
In February 2018, pursuant to the parties’ stipulation,
the court (Judge Moor) appointed Dr. Jeffrey Arden as the
custody evaluator. The parties stipulated that Dr. Arden
had the “right to determine the information he deems
significant and relevant to the evaluation.” The stipulation
additionally provided that Dr. Arden could be called to
testify at trial only if a party subpoenaed him, and that “any
subpoena requiring Dr. Arden [to appear] at trial . . . will be
hand-delivered to his office . . . at least ten (10) court days
prior to the appearance date, unless other arrangements are
made with Dr. Arden prior to issuing a subpoena . . . .” It
was further stipulated that “the party requiring Dr. Arden’s
appearance shall deposit $3,000.00 with the subpoena at his
office at least ten (10) court days prior to the appearance
date to cover one day of expert witness fees.” Counsel was
9 On December 6, 2018, Father moved the court to reconsider
the November 2017 drug testing order. The court (Judge Audra
Mori) denied the motion as untimely.
11
not permitted to “engage in unilateral communication with
Dr. Arden, except for administrative matters, e.g.,
scheduling or billing.” The stipulation reiterated that
“Dr. Arden’s report shall be received in evidence without
foundation or objection, subject to the parties’ right to
engage in direct and cross-examination of Dr. Arden.” The
stipulation also provided that “[t]he parties understand . . .
all outstanding fees must be paid prior to the distribution of
the report.”
On August 9, 2018, at 12:29 p.m., Dr. Arden e-mailed
Mother’s counsel and Father, stating the custody evaluation
was finished and would be filed within the next two business
days.10 On March 12, 2019, Father moved to strike
Dr. Arden’s report, but the hearing date was set for May 29,
2019 -- more than seven weeks after the April 8, 2019 trial
date. Nothing in the record indicates Father attempted to
advance the hearing date of this motion, or requested the
trial court rule on the motion.
D. Trial
1. Attempts to Continue the Trial
On April 3, 2019, Father filed an ex parte request to
continue the trial, arguing he had received “over 400 pages
of discovery” the previous day, and had not had sufficient
10 By this time, Father was again representing himself and
continued to do so through trial.
12
time to review the materials before trial.11 The court (Judge
Lewis) denied the application, finding “[n]o good cause.”
Trial occurred on April 8, 2019. When the court (Judge
Rolf M. Treu) asked Father if he was ready for trial, Father
replied that he was not, due to discovery issues. Father
acknowledged that another judge had recently denied his
request for a continuance based on the same grounds, and
Judge Treu declined to revisit that denial.
2. Admission of Dr. Arden’s Report
Mother then raised the issue of admitting Dr. Arden’s
report into evidence, and both parties agreed they had
stipulated to its admission subject to the cross-examination
of Dr. Arden. When the court asked Father if he agreed that
“Sanchez was waived by stipulation on November 27, 2017,”
Father responded, “Yes,” without arguing the waiver was
invalid. Nevertheless, Father objected to the admission of
the report, explaining he had been trying unsuccessfully to
subpoena Dr. Arden to testify at trial. In response to the
court’s request for proof of Father’s efforts, Father
referenced a due diligence declaration describing a process
server’s failed attempts to serve Dr. Arden with subpoenas
for documents. When asked specifically whether there was a
declaration demonstrating attempted service of a trial
subpoena, Father claimed he did not “have that with me
11 The request did not mention his pending motion to strike
Dr. Arden’s report.
13
today.” The court admitted Dr. Arden’s report into evidence,
stating: “If Dr. Arden shows up during the course of this
trial, he may be subject to cross-examination. But if he has
not been properly served, there is no basis upon which the
court has to order him to be here.” With regard to the
witnesses the parties intended to call, the court asked the
parties to “[b]ear in mind that the court does not wish
duplicative testimony and that with respect to these
witnesses that you are going to call, the court expects them
to have new and fresh evidence and not just merely restate
what somebody else may have said, particularly in view of
the fact that the comprehensive report . . . is in evidence
. . . .”
3. Motions in Limine
When Father attempted to make oral motions in
limine, the court asked why the motions were not in writing.
Father claimed he had drafted written motions but that the
“discovery issues . . . didn’t give me enough time to submit
them.” After Father admitted none of the motions had been
filed, the court informed him it would not consider oral
motions in limine, but told him he could still object when
objectionable testimony was presented.
4. Testimony
Three witnesses testified: Mother was called as a
witness on her own behalf, and Amy Collins (Father’s sister)
and Yolany Guzman (a parent at the school Alyssa attended
14
when she was in Father’s custody) were called on Father’s
behalf.
Mother testified to her opinion as to when Father
should be permitted to have unmonitored visits with Alyssa;
how Father exercised his current visitation rights with
Alyssa; her belief that her mother took care of Alyssa the
majority of the time between 2014 and 2017 (when Alyssa
was supposed to be in Father’s custody); the October 2017
incident in which she believed Father was intoxicated when
Mother was returning Alyssa to his custody; and her
sobriety.12 Toward the end of Father’s cross-examination of
Mother, the court, noting that it had limited Mother’s
examination by her own counsel and intended to limit
Father’s cross-examination as well, asked how much longer
Father would be questioning Mother. Father estimated he
had another five minutes. The court replied, “very well,
proceed.” Father then examined Mother on a few more
topics and concluded, “No further questions.” Nothing in the
record indicates that time constraints precluded Father from
exploring any topics with Mother.
Amy Collins testified that she had noticed Mother had
a black eye at one point and when Collins asked what had
12 Mother admitted she had not completed the 90 consecutive
days of Alcoholics Anonymous meetings ordered by the court in
2014, but claimed she did attend AA meetings three time a week,
and currently attended “Celebrate Recovery” four times a week.
Dr. Arden’s report described “Celebrate Recovery” as a
“faith-based AA twelve step program.”
15
happened, Mother explained her husband had hit her in the
face and dragged her by her hair. Collins claimed she had
informed Dr. Arden of this incident.13
Yolany Guzman testified that she volunteered at the
school Alyssa attended while in Father’s custody, and was
present when the children were dropped off at school.
Alyssa was usually dropped off by Father, and Guzman saw
Alyssa’s maternal grandmother drop her off only two or
three times. Additionally, Guzman frequently saw Father at
Alyssa’s school performances, but saw Mother there only
twice.
After Guzman was excused, Father stated that his
final witness had been unable to come that day, and
requested the court adjourn proceedings until the next day.
However, Father had no subpoena showing the witness had
been served, and the court denied Father’s request to
adjourn, stating it would not “waste an hour and 15 minutes
of court time” when the court had “no assurance that [the
witness] will even show up tomorrow or that the court can
order him to show up tomorrow.” Father then rested, and
both parties gave closing arguments.14
13 Though the report does contain statements from Collins, it
makes no mention of this incident. However, the report contains
several instances where witnesses opined there was no domestic
violence in Mother’s household, while Father and his other sister
(Sara) opined Mother was being “abused by her husband.”
14 Father made no offer of proof concerning the witness’s
anticipated testimony.
16
E. The Court Issues a Judgment
On April 11, the court issued a tentative ruling, which
would become the order of the court absent either a timely
request for statement of decision, or a proposal for rulings
not included in the tentative decision.15 In August 2019, the
court issued its judgment, in which it stated it had “carefully
considered and weighed the evidence before it . . . .” In
relevant parts, the judgment provided that Mother and
Father were to share joint legal custody of Alyssa, but that
Mother would have the final authority to make all education,
medical, and general welfare decisions about Alyssa.
Primary physical custody of Alyssa was awarded to Mother,
and Father was granted monitored visits with Alyssa every
weekend (alternating between Los Angeles and Bakersfield)
and unmonitored phone calls. After 120 days of compliance
from Father regarding hair follicle testing, the parties could
attempt to change the custody and visitation orders. No
child support was ordered, and the court reserved
jurisdiction on the issue of reallocating Dr. Arden’s fees,
which had been borne solely by Mother. The court also
found that Dr. Arden’s conclusions were “well-reasoned and
founded on fact,” and that Father had not “use[d] the agreed
upon procedure . . . to produce Dr. Arden in Court.” The
court additionally found that both parties “had significant
15 Father requested a statement of decision, but the court
found the request legally insufficient because it violated “the rule
that ultimate facts be the subject of a Statement of Decision.” He
does not assign error to that ruling on appeal.
17
issues with substance abuse” but Mother had “confronted
her substance abuse issues head on and has been in control
of them for several years.” Further, the court found “[t]he
current situation could have been easily avoided by [Father]
if he had merely followed the Court’s order regarding
testing, yet he willfully refused to comply.” Referencing the
“hair follicle test order of November 27, 2017,” the court
stated Father had stipulated to random and monitored drug
and alcohol hair follicle testing twice a month.
Father moved for a new trial. The court (Judge Treu)
denied Father’s motion, finding that Father’s stated reasons
for a new trial -- irregularity in the proceedings, accident or
surprise, newly discovered evidence, insufficiency of the
evidence, and error of law -- “were not shown to be true.”
Father timely appealed.
DISCUSSION
A. The Court Did Not Err in Ordering Father to
Undergo Hair Follicle Drug Testing
At the November 2017 hearing, after the court (Judge
Goldberg) discussed drug testing with both parties, it
summarized by stating: “So both of you are stipulating we’re
going to have an order for random alcohol and drug testing.
It can be through a hair follicle testing. Is that correct,
ma’am? Is that correct, sir?” Both parties responded, “yes.”
The minute order from the hearing similarly reflected that
18
“Petitioner and Respondent agree to undergo random hair
follicle testing, on 24 hour notice, twice per month.”
On appeal, Father contends the court erred in ordering
him to drug test without meeting the requirements of Family
Code section 3041.5, and that because the drug-testing order
was invalid, he was deprived of his constitutional rights
when other decisions were based on his noncompliance with
that order. The record belies his claim. As Judge Moor
properly found, the drug-testing order was not issued
pursuant to Family Code section 3041.5, but rather arose
from a stipulation between the parties. In the November
2017 hearing, Judge Goldberg repeatedly emphasized to
Father that he need not agree to testing, and expressly
asked whether he was stipulating to drug testing; Father
confirmed he was. Thus, there is no merit to Father’s
argument that the drug-testing order was void for want of
compliance with Family Code section 3041.5.16
Father additionally argues the drug-testing order was
void because he was unaware he could refuse to agree to it.
Again, the record is to the contrary. Judge Goldberg asked
Father directly, in clear and understandable language,
whether he was “okay with the court making an order for
drug and alcohol testing or not?” Father responded, “Yes.”
Later, emphasizing that the choice was Father’s, the court
16 Because we reject Father’s challenge to the agreed upon
order, we also reject his argument that subsequent courts erred
in enforcing the order or in basing decisions on noncompliance
with the order.
19
explained: “Sir, if you don’t want to agree, that’s fine,”
noting that some people voluntarily agreed to drug testing to
demonstrate they were not using or abusing substances.
Father responded, “Yes, it’s fine.” The record thus leaves no
doubt that Father knowingly and voluntarily agreed to
testing.17
B. Any Orders Altering Custody Arrangements
on an Ex Parte Basis Were Superseded by the
Final Judgment
In both December 2017 and January 2018, the court
(Judge Lewis and Judge Moor, respectively) granted
Mother’s request to alter Alyssa’s custody arrangements
based on Father’s refusal to submit to hair follicle testing.
Father argues the court erred in myriad ways in granting
this request.
However, 16 months after this order was made, the
parties participated in a trial that resulted in a judgment
addressing Alyssa’s custody, superseding the orders issued
by Judge Lewis and Judge Moor. Therefore, we need not
consider whether the court erred in altering custody on an ex
parte basis because, regardless of the merits of Father’s
argument, we can grant no relief.
17 Father also argues that “the court’s use of the word
‘willful’” in discussing his failure to comply with the drug-testing
order “gives the impression of adjudication for contempt,” and
argues the courts did not follow the requirements for adjudicating
contempt. Father cites nothing in the record to support a claim
that any court ever found him in contempt.
20
C. The Admission of Dr. Arden’s Report into
Evidence Did Not Deny Father Due Process
At the April 2019 trial, the court admitted Dr. Arden’s
custody evaluation report into evidence. Father argues that
doing so violated his right to due process because: (1) he was
unable to cross-examine Dr. Arden; (2) Sanchez rendered the
report inadmissible and Father’s Sanchez waiver was invalid
because it was not intelligently made; (3) the court precluded
testimony from witnesses whose statements were included in
Dr. Arden’s report; (4) Dr. Arden failed to comply with the
Rules of Court, the statutes under which he was appointed,
and the order appointing him; and (5) portions of the report
were factually incorrect.18 As explained below, we reject
these arguments.
1. Father Forfeited the Right to
Cross-Examine Dr. Arden
Father was unable to cross-examine Dr. Arden because
he failed to follow the requirements to compel Dr. Arden to
appear and testify at trial. The parties had stipulated that
“any subpoena requiring Dr. Arden [to appear] at trial . . .
18 Father also argues the court erred in reserving jurisdiction
on the issue of reallocation of Dr. Arden’s fees (which Mother had
paid). We are unclear why Father believes this reservation is
erroneous. To the extent he is arguing that, as a matter of law, it
would be unjust to allocate any of Dr. Arden’s fees to him, or that
the court would err if it allocated fees without determining their
reasonableness, those arguments are not yet ripe, as Father does
not claim that the court has allocated any fees to him.
21
will be hand-delivered to his office . . . at least ten (10) court
days prior to the appearance date, unless other
arrangements are made with Dr. Arden prior to issuing a
subpoena . . . .” It was further stipulated that “the party
requiring Dr. Arden’s appearance shall deposit $3,000.00
with the subpoena at his office at least ten (10) court days
prior to the appearance date to cover one day of expert
witness fees.”
Nothing in the record demonstrates Father ever
deposited the required fee with Dr. Arden’s office.
Additionally, when the court asked about Father’s efforts to
serve Dr. Arden with a trial subpoena, Father produced a
due diligence declaration describing failed attempts to serve
Dr. Arden with document subpoenas. After the court asked
whether there was a declaration regarding service of a trial
subpoena, Father claimed he did not “have that with me
today.” On appeal, Father cites nothing to show he ever
attempted to serve Dr. Arden with a trial subpoena, and our
independent review of the record also reveals nothing.
Because Father failed to follow the agreed procedure to
compel Dr. Arden’s presence at trial, the court did not err in
accepting the report into evidence despite Father’s inability
to cross-examine Dr. Arden.
2. The Sanchez Waiver Was Valid
Father contends that without a Sanchez waiver,
Dr. Arden’s report would be inadmissible and that his
Sanchez waiver was ineffective because Sanchez “was not
22
properly explained to Father . . . .” We reject this argument.
First, at trial -- more than 16 months after the Sanchez
waiver -- the court asked Father if he agreed that “Sanchez
was waived by stipulation on November 27, 2017,” and
Father responded, “Yes,” without any suggestion that the
waiver was infirm. A party may not complain on appeal that
evidence was inadmissible on a certain ground unless he
made a timely and specific objection on that ground below.
(Evid. Code, § 353 [“A verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous admission of evidence
unless: [¶] (a) There appears of record an objection to or a
motion to exclude or to strike the evidence that was timely
made and so stated as to make clear the specific ground of
the objection or motion”].) Accordingly, Father has forfeited
this argument.
Second, the record contradicts Father’s claim of
ignorance. When asked by the court if he was “okay with the
evaluation coming in subject to cross-examination?” Father
responded with an unequivocal “yes.” Father fails to
elaborate on what was not “properly explained” to him, or
what he supposedly misunderstood. Indeed, in the
stipulation Father signed for the order appointing Dr. Arden,
Father agreed that “Dr. Arden’s report shall be received in
evidence without foundation or objection, subject to the
parties’ right to engage in direct and cross-examination of
Dr. Arden.”
23
3. The Court Did Not Preclude Father
from Calling Witnesses
Father contends the trial court “blocked the ability of
father to call any witnesses who spoke to Arden.” This is
incorrect. Rather, the court sensibly asked the parties to:
“Bear in mind that the court does not wish duplicative
testimony and that with respect to these witnesses that you
are going to call, the court expects them to have new and
fresh evidence and not just merely restate what somebody
else may have said, particularly in view of the fact that the
comprehensive report . . . is in evidence.” In other words,
because the report was already in evidence, the court did not
wish to hear witnesses repeat statements contained therein.
Moreover, after Guzman testified at trial, there
remained 75 minutes of court time. Father informed the
court that he had one more witness, who was not present,
but could appear the next day. Because Father could not
produce a subpoena showing the witness was required to
appear, the court denied Father’s request to adjourn the
hearing. Nothing in the record indicates Father either
attempted to or was precluded from calling any other
witness.
Additionally, neither below nor on appeal has Father
suggested what prejudice resulted from the court’s ruling.
He made no offer of proof below regarding the witness’s
anticipated testimony, and on appeal fails to articulate how
his failure to call the witness operated to his detriment. He
has thus failed to show reversible error. (See, e.g., F.P. v.
24
Monier (2017) 3 Cal.5th 1099, 1107-1108 [California
Constitution expressly precludes reversal absent prejudice].)
4. Dr. Arden’s Alleged Violations
Father contends the court erred in admitting
Dr. Arden’s report into evidence because Dr. Arden violated
the Rules of Court, California statutes, and the order
appointing him. We briefly address and reject each of
Father’s arguments below.
(a) Accepting Payments from Mother
After the Report Was Distributed
Father complains Dr. Arden violated the order
appointing him by accepting payments from Mother after the
report was filed, even though the stipulation appointing him
stated that “[t]he parties understand . . . all outstanding fees
must be paid prior to the distribution of the report.” But
Father provides no authority or cogent argument as to why
Dr. Arden’s apparent agreement to release the report prior
to Mother’s paying all of the required fee would be a basis for
excluding the report. To the extent Father suggests this
arrangement demonstrates bias by Dr. Arden, Father does
not explain the connection between the two events, and we
discern none.
25
(b) Failing to Respond to a Mailed
Subpoena
Father contends Dr. Arden failed to respond to a
mailed document subpoena. Father provides no authority
stating that such a failure should affect the admissibility of
the report. The parties stipulated that the report would be
admissible, only “subject to the parties’ right to engage in
direct and cross-examination of Dr. Arden.”
(c) Failing to Follow Rule 5.220 of the
California Rules of Court
Rule 5.220 of the California Rules of Court requires
that “[i]n performing an evaluation, the child custody
evaluator must: [¶] (1) Maintain objectivity, provide and
gather balanced information for both parties, and control for
bias; [¶] (2) Protect the confidentiality of the parties and
children in collateral contacts and not release information
about the case to any individual except as authorized by the
court or statute; [¶] . . . [¶] (4) Consider the health, safety,
welfare, and best interest of the child in all phases of the
process . . . .” (Cal. Rules of Court, rule 5.220(j)(2).) Father
argues Dr. Arden “fail[ed] to follow each one of these rules,”
and therefore the court’s admission of the report “was
overtly prejudicial to father’s case.” This is a conclusory
statement without supporting facts, authority, or indeed
logical argument, and thus is forfeited. (WFG National Title
Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th
881, 894 [“In order to demonstrate error, an appellant must
26
supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record.
Rather than scour the record unguided, we may decide that
the appellant has forfeited a point urged on appeal when it is
not supported by accurate citations to the record”]; ibid.[“Similarly, we may disregard conclusory arguments that are
not supported by pertinent legal authority”].)
(d) Failing to File Form FL-326
Father contends Dr. Arden never filed form FL-326 as
required under California Rules of Court rule 5.225.19 But
Father cites to nothing in the record demonstrating he ever
objected to the admission of the report on that ground, nor
have we come across such an objection in our own review of
the record. Therefore, this argument is forfeited. (Evid.
Code, § 353.)
(e) Engaging in Ex Parte
Communications with Mother’s
Counsel and Husband
In the stipulation for the order appointing Dr. Arden,
the parties agreed that counsel were not permitted to
“engage in unilateral communication with Dr. Arden, except
for administrative matters, e.g., scheduling or billing.”
19 Form FL-326 is a “Declaration of Private Child Custody
Evaluator Regarding Qualifications.”
27
Father accuses Dr. Arden of engaging in improper ex parte
communications with Mother’s counsel and husband.
Nothing in the record demonstrates Mother’s counsel
had any improper ex parte communications with Dr. Arden.
Father claims that the day he gave notice of an ex parte
hearing, Mother’s counsel sent him an e-mail at 12:03 p.m.
stating that “Dr. Arden was almost done or finished with his
evaluation.” Twenty-six minutes later, Dr. Arden sent an
e-mail stating he was done with his report. Father claims
the proximity in time of the two e-mails proves Mother’s
counsel had an improper ex parte communication with
Dr. Arden. We disagree. First, we note that Father fails to
cite to the alleged e-mail from Mother’s counsel. Second,
even if the e-mail existed, there is no evidence Mother’s
counsel had any specific knowledge that Dr. Arden’s report
would be finished within the hour -- counsel may have been
giving his general understanding that Dr. Arden was
nearing the end of his work. Finally, even had Mother’s
counsel known that the conclusion of Dr. Arden’s work was
imminent, this alone is insufficient proof that an improper
communication occurred.
Father also contends Mother’s husband admitted an
“illegal ex parte agreement with the evaluator to violate
terms of the order appointing him.” However, the
“agreement” referenced by Father is one that was described
in a declaration by Mother’s husband, attesting that because
the child custody evaluation was a large expense, “it was
necessary to make irregular payments of varying amounts to
28
Dr. Arden,” and both Mother and her husband had
communicated via e-mail with Dr. Arden to discuss such
payments. Discussions regarding “billing” were explicitly
excluded from the prohibition of ex parte communications.
(f) Engaging in a “Biased Collection”
of Documents and Failing to
Interview Three of Father’s
Witnesses
Father accuses Dr. Arden of refusing to review records
corroborating Father’s claims and failing to interview three
of his witnesses. First, by Father’s own account, Dr. Arden
provided only a “partial list” of documents he reviewed. As
such, there is no evidence that Dr. Arden failed to review the
records Father references. Second, Father cites nothing in
the record demonstrating these documents were provided to
Dr. Arden. Most important, the parties stipulated that
Dr. Arden had the “right to determine the information he
deems significant and relevant to the evaluation.” Without
evidence of Dr. Arden’s supposed bias, the court did not err
in admitting his report despite Father’s unsupported
contention that Dr. Arden did not review certain documents
or failed to interview three witnesses.
29
(g) Failing to Consider Mother’s
Substance Abuse Issues
Father claims Dr. Arden failed to consider Mother’s
substance abuse issues. Father is mistaken. Several pages
of Dr. Arden’s report discuss Mother’s substance abuse
issues, as well as his conclusion concerning her sobriety.
(h) Including Opinions Outside the
Evaluator’s Expertise
Father contends Dr. Arden improperly “act[ed] as a
lawyer” when he opined that Father demonstrated contempt
of court orders. In the context of the report, it is clear
Dr. Arden was not making a legal ruling, and there is no
evidence the court either interpreted the statement in that
manner, or based its own ruling on such an understanding of
Dr. Arden’s opinion.
(i) Reaching Incorrect Factual
Conclusions
Father accuses Dr. Arden of reaching several incorrect
factual conclusions in his report (e.g., as to whether domestic
violence had ever occurred between Mother and Father,
whether Mother was sober, etc.). But Dr. Arden’s opinions
were evidence the court was entitled to consider; nothing
prevented Father from putting on conflicting evidence. The
court did not err in receiving the report into evidence simply
because Father disagreed with Dr. Arden’s opinions.
30
D. The Court Had No Sua Sponte Duty to
“Recognize . . . Collusion”
Father argues the court abdicated its duty to
“recognize” that Mother’s counsel and Dr. Arden were
colluding and “admonish” them. First, as discussed above,
there is no evidence of “collusion.” Second, Father provides
no authority stating the court has a sua sponte duty to
“recognize” the parties were colluding. In re Marriage of
Laurenti (2007) 154 Cal.App.4th 395, which Father cites to
support his conclusion, is inapposite. In Laurenti, after the
mother successfully moved the court to disqualify a custody
evaluator, the court ordered her to pay the evaluator’s
requested fees, but failed to determine whether the fees were
reasonable. (Id. at 402-403.) The appellate court found this
failure to be an “abdication” of the trial court’s duties. (Id. at
403.) Laurenti has nothing to do with a duty to “recognize
. . . collusion” and “admonish” against it.
E. The Court Did Not Err in Refusing to
Continue the Trial
Five days before trial, Father filed an ex parte
application to continue the trial, arguing he had received
certain documents only the previous day and had not had
sufficient time to review them before trial. The court (Judge
Lewis) denied the application, finding “[n]o good cause.”
At trial, Father renewed his request to continue the
trial for the same reason, but acknowledged that his prior
31
request had been denied. Father proffered no new facts, and
the trial court (Judge Treu) declined to revisit that ruling.
On appeal, Father argues it was an abuse of discretion
to deny his request to continue the trial. It is unclear
whether he is arguing that Judge Lewis abused his
discretion in denying Father’s ex parte application, that
Judge Treu abused his discretion in declining to revisit
Judge Lewis’s ruling, or both. In any event, we find none of
the contentions has merit.
As to Judge Lewis’s denial of Father’s ex parte request,
it did not exceed the bounds of reason to conclude that the
production of “over 400 pages of discovery” a week before
trial did not constitute good cause to continue that trial.
Moreover, having now had several years to review these
documents, Father fails to explain how the outcome of the
trial would have changed had he been given more time. As
to Judge Treu’s refusal to revisit Judge Lewis’s ruling, the
record discloses no new facts or law proffered by Father to
support what was essentially a motion for reconsideration.
Accordingly, it did not exceed the bounds of reason for Judge
Treu to decline to make a different ruling.
F. Father Was Not Denied Due Process
Father contends the court denied him due process by:
(1) limiting his witnesses; (2) limiting his cross-examination
of Mother; (3) failing to hear his motion to strike Dr. Arden’s
report; (4) failing to consider his motions in limine; and (5)
32
failing to rule on certain important issues. These arguments
are without merit.
1. Limiting Father’s Witnesses
As discussed above, the court did not limit Father’s
witnesses; it requested the parties not proffer testimony that
was already contained in Dr. Arden’s report. The court did
not prevent Father from calling witnesses to challenge the
contents of the report or to testify to matters not contained
within the report. Nor did Father make an offer of proof
below regarding any witness’s anticipated testimony, and on
appeal fails to articulate what prejudice he incurred from the
inability to present any such testimony.
2. Limiting Father’s Examination of
Mother
During Father’s cross-examination of Mother, the court
stated that it had limited Mother’s direct examination by her
own counsel, and would similarly limit Father’s cross-
examination; it asked how much longer Father’s
examination would take. Father estimated he had another
five minutes. The court permitted him to proceed, and
Father examined Mother on a few more topics before stating,
“No further questions.” Nothing in the record indicates time
constraints precluded Father from questioning Mother on
any topic.
33
3. Hearing Father’s Motion to Strike
Father claims he was prejudiced because his motion to
strike Dr. Arden’s report was not heard before trial. But he
filed the motion in March 2019 with a hearing date of May
29, 2019 -- more than seven weeks after trial -- and nothing
in the record indicates he attempted to have the hearing
date advanced, or even that he asked the trial court to rule
on the motion. We find the trial court did not err in failing
to advance and rule on Father’s motion sua sponte.
4. Declining to Consider Father’s Motions
in Limine
When Father raised the issue of his motions in limine
at trial, the court asked why the motions were not in writing.
Father claimed he had drafted written motions but that the
“discovery issues . . . didn’t give me enough time to submit
them.” The court informed him it would not consider oral
motions in limine, but advised Father he could still object to
any arguably objectionable testimony offered at trial. Father
does not explain how the court erred in failing to consider
unfiled motions, or how this alleged failure prejudiced him,
given his ability to object to any inadmissible evidence
during trial.
5. Ruling on Significant Issues
Finally, Father argues the court erred by not ruling on
the issues of: (a) whether hair follicle testing was ordered; (b)
whether custody of Alyssa should have been altered on an ex
34
parte basis; (c) whether Mother was sober; and (d) whether
domestic violence occurred in Mother’s household. Father’s
arguments are without merit.
First, by finding that “[t]he current situation could
have been easily avoided by [Father] if he had merely
followed the Court’s order regarding testing” and referencing
the “hair follicle test order of November 27, 2017” whereby
Father had stipulated to random and monitored drug and
alcohol hair follicle testing twice a month, the court
self-evidently found that hair follicle testing had been
ordered. Second, as discussed above, it is irrelevant whether
the court erred in changing Alyssa’s custody on an ex parte
basis, because that order has been superseded. Third, the
court found that Mother “had significant issues with
substance abuse” but had “confronted her substance abuse
issues head on and has been in control of them for several
years.” And finally, while the court did not make an express
finding that no domestic violence occurred in Mother’s
household, the court did state it had “carefully considered
and weighed the evidence before it . . . .” The evidence before
it included the conflicting testimony regarding whether
domestic violence occurred in Mother’s household.
35
DISPOSITION
We dismiss the portion of the appeal challenging the
court’s October 2019 order denying Father’s motion for a
new trial. In all other respects, the judgment is affirmed.
As respondent did not appear, no costs are awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
36