Marriage of Lopez CA4/1 ( 2021 )

Filed 12/29/21 Marriage of Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of ARTHUR and
CHERYL LOPEZ.
ARTHUR LOPEZ,
G059356
Appellant,
(Super. Ct. No. 16D001283)
v.
OPINIO N
CHERYL LOPEZ,
Respondent.
Appeal from a judgment of the Superior Court of Orange County, Daphne
Grace Sykes, Judge. Affirmed. Motion to augment the record. Denied.
Arthur Lopez, in pro. per., for Appellant.
No appearance for Respondent.
Appellant Arthur Lopez (appellant) appeals from two orders: (1) the trial
court’s denial of his request to disqualify the trial judge under Code of Civil Procedure
section 170.6; and (2) the trial court’s denial of a restraining order against appellant’s
former wife, Cheryl Lopez. Appellant’s invocation of Code of Civil Procedure, section
170.6 was untimely, and the evidence underlying the trial court’s factual finding that
appellant failed to prove an incident of domestic violence does not compel a contrary
finding as a matter of law. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
This is the fifth separate opinion of this court generated in this case.
The background facts are set forth in our earlier nonpublished opinion and
are not repeated here.
On July 22, 2020, appellant filed a motion to disqualify Judge Daphne
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Sykes under Code of Civil Procedure section 170.6. The trial court denied the motion as
untimely.
On the same date, appellant filed an ex parte application for a temporary
restraining order against his former wife. Rather than specifying the incident or incidents
of domestic violence appellant contended would support issuance of a temporary
restraining order, the substance of the application addressed child custody issues. The
hearing took place on August 18, 2020. The trial court ordered the parties and their
minor children to participate in counseling sessions, and denied appellant’s request for a
restraining order, finding that there was insufficient evidence to show an incident of
domestic violence. Appellant timely appealed.
1
The motion itself is not part of the record on appeal, but is instead attached as an
exhibit to appellant’s opening brief.
2
DISCUSSION
1. Procedural Issues
Appellant bears the burden of providing an adequate record to support his
claims of error. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) California Rules of
Court, Rule 8.120(b) 2 requires appellant to provide a reporter’s transcript, agreed
statement, or settled statement for any issue that “requires consideration of the oral
proceedings in the superior court.” Appellant’s contentions as to the restraining order
issue appear to require such consideration and the court’s order denying the restraining
order notes that testimony was taken. Yet the record contains no reporter’s transcript,
agreed statement, or settled statement pertaining to the challenged rulings. Appellant was
specifically warned of this problem in connection with two of his prior appeals in this
matter. (In re Marriage of Lopez (May 26, 2020, G057379) [nonpub. opn.]; In re
Marriage of Lopez (Sept. 30, 2020, G057649) [nonpub. opn.].)
Appellant’s motion to augment the record does not cure these issues.
Instead, it seeks to add to the record transcripts of hearings on April 28, 2019, May 17,
2019, July 17, 2019, and November 18, 2020, none of which resulted in the orders
challenged by appellant in this appeal. The motion to augment also does not include the
transcripts themselves as attachments; regardless, we deny the motion because the
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transcripts are irrelevant to our decision.
Our review of this matter is further hampered by serious deficiencies in
appellant’s brief and in the record. Rule 8.204(a)(1)(B) requires briefs filed in our court
to “State each point under a separate heading or subheading summarizing the point and, if
possible, by citation to authority.” Rule 8.204(a)(1)(C) requires references to the record
2
All further references to rules are to the California Rules of Court.
3
At oral argument appellant requested judicial notice of his filings in the
California Supreme Court, S271731 and S271722. Those filings come from a prior case
in this court (G057649) and, accordingly, do not pertain to this appeal. The request is
denied.
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when discussing facts. Rule 8.204(a)(2)(A) requires the appellant’s opening brief to
identify the relief sought in the trial court and the judgment or order appealed from. Rule
8.204(a)(2)(B) requires the appellant’s opening brief to explain why the order appealed
from is appealable. Rule 8.204(a)(2)(C) requires the appellant’s opening brief to provide
a summary of the significant facts limited to matters in the record. Rule 8.204(b) requires
any brief to be “reproduced by any process that produces a clear, black image of letter
quality,” and controls font, font size, line spacing, and margins, all of which are intended
to allow the court to adequately read and comprehend the arguments of the litigants.
Appellant’s opening brief fails to comply with any of these rules.
Appellant’s arguments are set forth under a blanket “Argument” heading and are not
organized in any readily ascertainable way. Appellant’s brief contains few citations to
the record, none of which reflect anything other than his own filings. Appellant’s brief
fails to identify with any specificity the orders from which he has appealed (including
omitting any citation to their locations in the record), and the relief sought in the trial
court. Appellant’s brief contains an inadequate statement of appealability, which claims
his appeal is taken from a single “final judgment,” even though this appeal involves two
separate orders, not judgments. Appellant’s brief contains an introduction (presumably
substituting for the required statement of the case) but this statement largely consists of
argument, rather than a summary of facts, and is focused on fee waiver and child custody
issues which do not relate to the substance of this appeal. Appellant’s brief is also
handwritten and single-spaced, and as a result some portions of the brief are illegible.
Appellant was specifically warned of similar violations of the Rules of
Court in connection with three of his prior appeals in this matter (In re Marriage of Lopez
(Feb. 26, 2018, G054262) [nonpub. opn.]; In re Marriage of Lopez (May 26, 2020,
G057278) [nonpub. opn.]; In re Marriage of Lopez (Sept. 30, 2020, G057649) [nonpub.
opn.]).
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While we acknowledge a self-represented litigant’s understanding of the
rules on appeal is, as a practical matter, more limited than an experienced appellate
attorney’s and, whenever possible, will not strictly apply technical rules of procedure in a
manner that deprives litigants of a hearing, we are nevertheless required to apply the
Rules of Court and substantive rules of appellate review to a self-represented litigant’s
claims on appeal, just as we would to those litigants who are represented by trained legal
counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
We will, insofar as it is possible, address appellant’s claims on the merits.
To the extent the record does not permit us to do so, the claims are forfeited for the
reasons set forth above.
2. Substantive Issues
a. The Trial Court’s Denial of Appellant’s Motion to Disqualify
Appellant argues the trial court erred by denying his motion to disqualify
Judge Sykes because appellant contends his submission to the court included sufficient
evidence of bias or the appearance of bias.
The order from which appellant appeals is the trial court’s denial of
appellant’s motion to disqualify Judge Sykes under Code of Civil Procedure section
170.6. Code of Civil Procedure, section 170.6 permits a party to move to disqualify a
judge by asserting under penalty of perjury that the party or the party’s attorney believes
the judge cannot render a “fair and impartial trial or hearing” because of prejudice against
the party or attorney, or their interests. Such a motion can be made only once per side in
a given case, and is granted without further factual inquiry if the procedural requirements
are met. (Code Civ. Proc., § 170.6, subd. (a)(4).) This amounts to a single “peremptory
challenge” of a judge. (See Code Civ. Proc., § 170.6, subd. (a)(6).)
In civil cases that are assigned to a judge for all purposes, such a motion
must be made within 15 days of the all purpose assignment, or within 15 days after a
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party’s first appearance in the matter. (Code Civ. Proc., § 170.6, subd. (a)(2).) While the
initial notice of assignment is not present in the record, the history of this case, including
our various prior decisions, demonstrates that the matter has been assigned to Judge
Sykes for several years, and that appellant has been a party to the matter for the duration
of that period. Therefore, the trial court correctly concluded appellant had not filed his
motion within the 15-day period prescribed by the statute. 4
b. The Trial Court’s Denial of Appellant’s Request for a Restraining Order
Appellant argues the trial court erred by denying his request for a
restraining order. Appellant contends his former wife isolated him from his children by
refusing to participate in counseling sessions, and that this amounted to domestic
violence. In other words, appellant challenges the trial court’s finding that there was
insufficient evidence of domestic violence. “On appeal from a determination of failure of
proof at trial, the question for the reviewing court is ‘“whether the evidence compels a
finding in favor of the appellant as a matter of law.’” [Citation.] Specifically, we must
determine ‘“whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’
and (2) ‘of such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.’”’” (Almanor Lakeside Villas Owners Assn.
v. Carson (2016) 246 Cal.App.4th 761, 769.) “‘Where, as here, the judgment is against
the party who has the burden of proof, it is almost impossible for him to prevail on appeal
by arguing the evidence compels a judgment in his favor. That is because unless the trial
court makes specific findings of fact in favor of the losing plaintiff, we presume the trial
court found the plaintiff’s evidence lacks sufficient weight and credibility to carry the
4
Appellant’s arguments regarding bias appear directed toward his separate request
to disqualify Judge Sykes for bias against “Mexican-Heritage, Catholic Christian Male
Father[s]” like appellant under Code of Civil Procedure sections 170-170.9, a copy of
which is attached to his opening brief. However, there is no file-stamped copy of this
motion in the record, nor is there a ruling. As a result, there is no lower court action that
we can review.
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burden of proof. [Citations.] We have no power on appeal to judge the credibility of
witnesses or to reweigh the evidence.’” (Patricia A. Murray Dental Corp. v. Dentsply
Internat., Inc. (2018) 19 Cal.App.5th 258, 270.)
In the context of a domestic violence restraining order, domestic violence is
“abuse perpetrated against a spouse or the child of a party.” (In re Marriage of Davila &
Meija (2018) 29 Cal.App.5th 220, 226.) Abuse is (1) intentionally or recklessly causing
or attempting to cause bodily injury; (2) sexual assault; (3) placing a person in reasonable
apprehension of imminent serious bodily injury to that person or to another; or (4)
engaging in any behavior that has been or could be enjoined pursuant to Family Code
section 6320. (Fam. Code, § 6203.) Section 6320 permits issuance of an injunction
preventing “molesting, attacking, striking, stalking, threatening, sexually assaulting,
battering, credibly impersonating . . . , falsely personating . . . , harassing, telephoning
. . . , destroying personal property, contacting. . . , coming within a specified distance of,
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or disturbing the peace of the other party.”
There is no evidence in the record of any sexual assault, bodily injury,
attempt to cause bodily injury, or placing anyone in reasonable apprehension of imminent
serious bodily injury. Instead, the only evidence of “abuse” is appellant’s contention that
his former wife avoided participating in court-ordered counseling sessions, effectively
isolating him from his children. Arguably, this could constitute abuse. (See In re
Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, 120, fn. 5 [“We observe … that if
the evidence establishes that father has cut off access to their eldest daughter in violation
5
In his opening brief, appellant quotes Family Code, section 6320 as it exists
today, including language indicating that “isolating the other party from friends, relatives,
or other sources of support” may be enjoined and therefore may constitute “abuse.” This
language was not operative at the time of the trial court’s ruling. The statute was
amended in 2020 to add this language, which became effective January 1, 2021.
However, the new language was intended to codify existing case law, and we treat
appellant’s reference to this language as a reference to the existing case law.
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of the court’s order granting mother sole legal and physical custody, that may constitute
abuse.”].) However, we lack a reporter’s transcript of the hearing, and therefore must
presume appellant’s former wife testified she had not violated the court’s order or
improperly avoided participation in the counseling sessions. As discussed above,
appellant can only prevail if we can conclude the evidence—and all of it—compels a
finding contrary to the trial court’s ruling as a matter of law. The absence of a reporter’s
transcript is thus fatal to appellant’s challenge to the court’s factual findings.
DISPOSITION
The trial court’s orders are affirmed. No costs are awarded, as no
appearance was made on behalf of any respondent.
ZELON, J.*
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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