Soofi v. Contreras Law Firm CA4/1

Filed 3/25/21 Soofi v. Contreras Law Firm 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RASHEED SOOFI, D076884
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00040211-CU-PN-CTL)
CONTRERAS LAW FIRM et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Affirmed.
Rasheed Soofi, in pro. per. for Plaintiff and Appellant.
Klinedinst, Heather L. Rosing, Daniel L. Agle, and Catherine M.
Asuncion for Defendants and Appellants.
INTRODUCTION
After Rasheed Soofi filed a complaint against Contreras Law Firm and
individual attorneys who had represented him in two separate legal matters,
the defendants propounded discovery. Soofi’s initial response was
incomplete, and after the parties engaged in the meet and confer process, the
defendants filed a motion to compel discovery, which the trial court granted.
However, Soofi’s amended responses to the discovery continued to lack
compliance with the court’s orders, and following the issuance of two
additional orders that included monetary and evidentiary sanctions, the court
eventually issued terminating sanctions, resulting in the dismissal of the
entire action with prejudice.
Soofi contends the court improperly issued terminating sanctions, that
it acted with bias in doing so and throughout the matter, and that it also
incorrectly granted demurrer on two causes of action. We conclude the court
did not abuse its discretion in issuing terminating sanctions, and because it
terminated the entire action with prejudice, we do not reach the challenges to
the demurrer or motion to strike. We further conclude the court did not act
with bias in reaching its decision, and we will accordingly affirm.
I
BACKGROUND AND PROCEDURAL FACTS
In August 2018, Soofi filed a lawsuit against the Contreras Law Firm
and Dolores Contreras, Anna Encinias, and Rene Degolier (collectively,
Defendants).1 He alleged four causes of action: (1) breach of fiduciary duty;
(2) false promise, negligent misrepresentation, and concealment;
(3) professional negligence and legal malpractice; and (4) fraud, intentional
misrepresentation, and concealment.2 He also sought exemplary damages,
alleging malice, oppression, and fraud. Defendants filed a demurrer to the
1 Soofi later amended the complaint to add Darlene Sandez as a
defendant as well.
2 Soofi hired Defendants to represent him in two cases, one based on a
property dispute and the other a family law matter. The facts of the
underlying lawsuits are not relevant to our disposition in this case.
2
first four causes of action and a motion to strike the request for exemplary
damages. Soofi amended the complaint in October 2018.
On November 2, 2018, Defendants served their first set of discovery
requests. Soofi filed a motion to stay discovery pending the outcome of the
demurrer, a motion Defendants opposed, and the court ultimately denied.
Defendants filed a demurrer and motion to strike the first amended
complaint on December 3, 2018. The court considered Soofi’s late-filed
opposition in rendering its decision. It granted the motion in part, dismissing
the second and fourth causes of action without leave to amend. The court
explained these causes of action had not been pleaded with sufficient
particularity. It also granted the motion to strike the portions of the first
amended complaint related to punitive damages and attorney fees. It denied
Defendants’ motion with respect to the first and third causes of action.
Defendants filed their answer on February 27, 2019.
Soofi provided his first responses to discovery on December 19, 2018.
On January 14, 2019, Defendants sent a meet and confer letter seeking
supplemental responses. This letter identified several flaws, including that
Soofi had altered the language of Request for Admission Nos. 193 and 204 in
his responses, and the letter asked him to amend his response to reflect the
3 Request for Admission No. 19 asked Soofi to “[a]dmit that had YOU
read any of the documents provided to YOU by defendants in the PROPERTY
CASE, YOU would not have bought the PROPERTY.” Soofi modified the
request to read, “Admit that YOU read any of the documents provided to
YOU by defendants in the PROPERTY CASE.”
4 Request for Admission No. 20 asked Soofi to “[a]dmit that YOU admitted
that had you read any of the documents provided to YOU by the defendants
in the PROPERTY CASE, YOU would not have bought the PROPERTY, in
YOUR DEPOSITION.” Soofi treated the word “defendants” in this admission
as the defendants in the malpractice lawsuit he filed rather than the
defendants in the property matter.
3
requests as originally worded. It noted that he had referenced emails in
response to Special Interrogatory No. 19, but those emails were not included
in the document production as requested. And it explained that there were
inconsistencies and missing information related to Form Interrogatory
No. 6.5 regarding medication and treatment required as a result of Soofi’s
relationship with Defendants.5
Soofi responded to the meet and confer letter on February 16, 2019, and
Defendants replied February 28.
On March 5, 2019, Defendants emailed and mailed Soofi another meet
and confer letter, requesting a reply by March 11, 2019. On March 6, 2019,
Soofi emailed Defendants and said he would not respond until he received a
hard copy of the correspondence in the mail. He emailed March 8, 2019 to
say he had not received a hard copy of the correspondence and could not meet
the March 11 deadline. Defendants offered to extend the deadline. On
March 11, Soofi emailed again and told Defendants he could not open PDF
files on his phone, and he did not have internet access at home. Defendants
then provided a Word version of the letter. Defendants informed Soofi they
would file a motion to compel because he was refusing to provide any
substantive response, or even a timeline for providing amended responses to
the discovery.
5 Form Interrogatory No. 6.5 asked Soofi what medication he had been
taking as a result of the injuries caused by Defendant’s alleged misconduct
during their legal representation. Soofi provided a list of medications
prescribed by “various provide[r]s” on “various dates” “[s]ince June 2017.” He
did not produce documentation of the medication prescriptions, as requested
by Request for Production No. 3. Instead, he provided documents pertaining
to psychological treatment which did not reference the medications or his
relationship with Defendants.
4
Defendants filed a motion to compel further responses to their
discovery requests on March 15, 2019. They sought monetary sanctions for
abuse of discovery.
Soofi provided second amended discovery responses on March 25, 2019.
These consisted of objections to the requests.
On April 19, 2019, the court ruled that Soofi had not shown he was
“substantially justified in failing to timely serve amended responses or
show[n] that his objections to the discovery requests were valid.” It awarded
$2,000 in sanctions and directed Soofi to produce the requested documents
within five court days and to complete the discovery responses within 15
court days.
Soofi provided third amended responses to discovery April 24, 2019.
Defendants sent meet and confer correspondence in reply on May 1, 2019,
which Soofi responded to the following day.
Soofi provided fourth amended responses May 10, 2019.
On May 20, 2019, Defendants filed an ex parte application to shorten
time to file a motion for an order to show cause regarding contempt and
further motions to compel responses and production of documents. The court
granted this motion and set a hearing for terminating sanctions for June 28,
2019. Soofi asked to move this hearing date because it conflicted with his
travel outside the country, and the court agreed.
Defendants moved for terminating sanctions, arguing Soofi had refused
to comply with the court’s April 19, 2019 order. They noted that Soofi
responded to discovery requests in a single document, included only a single
verification, and contained variants of the statement that he did not have
more to say on the matter. Soofi’s opposition argued that he had complied
with all discovery statutes and with the court’s order. He also argued that he
5
had been unjustly ordered to provide more discovery without detail regarding
what that discovery was. He had paid $100 of the $2,000 sanction and
planned to pay monthly in similar increments.
Following a hearing on June 21, 2019, the court issued a ruling in
which it highlighted some of Soofi’s insufficient responses.6 The court
expressed concern that Soofi was not acknowledging and correcting his
failures and indicated it would issue non-monetary sanctions if Soofi did not
properly supplement discovery responses by July 26, 2019. The court
awarded additional monetary sanctions in the amount of $6,000.
Soofi served fifth amended discovery responses July 24, 2019. The
parties exchanged emails July 24, 25, 26, and 29. 7 Following these
communications, Defendants moved for sanctions again. They argued Soofi
had paid only $400 of the $8,000 in sanctions, which was due in full by
July 31, 2019. They also highlighted several form interrogatories and special
interrogatories to which they alleged Soofi had not adequately responded.
Soofi’s opposition argued the only complaints to his amended responses
really regarded document production, but he had provided to Defendants all
the documents “in relevance to this action that I currently have in my
possession, barring some information that may be discovered later . . . .” He
also insisted that he had “satisfactorily answered” all interrogatories and
requests for admissions and that he had no income to pay the sanctions.
6 The court identified specific problems with Soofi’s responses to Form
Interrogatory Nos. 6.5 and 17.1, Special Interrogatory Nos. 1, 13, and 27,
Request for Admission Nos. 19 and 24, and the single response he provided to
all 20 Requests for Production.
7 A copy of these emails was not provided in the record but were lodged
directly with the superior court at the time.
6
Following a hearing August 23, 2019, the court issued a ruling that
detailed deficiencies with Soofi’s responses to Form Interrogatories Nos. 6.5
and 17.1, Special Interrogatory No. 1, and the request for production related
to Special Interrogatory No. 25, among others. The court noted that Soofi
had shown efforts to supplement his responses, but his failure to
acknowledge his insufficiencies was problematic. It also noted monetary
sanctions had been an insufficient motivator for compliance. The court
imposed evidentiary sanctions and awarded $4,000 to Defendants. It also
warned Soofi that noncompliance, even a single failure to comply with the
court order, would result in terminating sanctions.
Soofi produced sixth amended responses and a supplemental
production of documents on September 5, 2019.
On September 13, 2019, Defendants filed a motion for terminating
sanctions, arguing Soofi’s responses were improper, highlighting among other
problems the continued insufficient response to Request for Admission
No. 19, which did not match the propounded request, the problems with his
response to Form Interrogatory No. 17.1, and the incomplete nature of the
production of documents.
In his opposition, Soofi argued he was a self-represented plaintiff with
no previous exposure to the legal profession and acknowledged he made
numerous mistakes in litigating his claim due to his misunderstandings of
procedural requirements. He argued that he never refused to provide
discovery responses, he responded in timely fashion, he complied with the
court’s April 19, June 21, and August 23 orders, and he made monthly
payments on his sanctions. Then he argued the dispute regarded only six
problems, which he characterized as insignificant.
7
The court explained that Soofi’s failure to answer questions and comply
with discovery requirements was impeding Defendants’ ability to form its
affirmative defenses, causing them to operate in the dark. Following the
hearing, the court granted terminating sanctions, dismissing the entire
action with prejudice. This appeal timely followed.
II
DISCUSSSION
A. Terminating Sanctions
“ ‘California discovery law authorizes a wide range of penalties for
conduct amounting to “misuse of the discovery process,” ’ including
terminating sanctions. [Citations.]” (Los Defensores, Inc. v. Gomez (2014)
223 Cal.App.4th 377, 390 (Los Defensores), citing Code Civ. Proc.,
§ 2023.030.) Code of Civil Procedure “[s]ection 2023.030 authorizes a trial
court to impose monetary sanctions, issue sanctions, evidence sanctions, or
terminating sanctions against ‘anyone engaging in conduct that is a misuse of
the discovery process.’ ” (Doppes v. Bentley Motors, Inc. (2009) 174
Cal.App.4th 967, 991.) Misuse of the discovery process includes “ ‘[f]ailing to
respond or to submit to an unauthorized method of discovery’ [citation]
‘[m]aking, without substantial justification, an unmeritorious objection to
discovery’ [citations]; ‘[m]aking an evasive response to discovery’ [citations];
and ‘[d]isobeying a court order to provide discovery’ [citations].” (Ibid., citing
Code Civ. Proc., § 2023.010, subds. (d)-(g).)
A trial court has broad discretion to impose discovery sanctions, subject
to reversal only if the court’s action is arbitrary, capricious, or whimsical.
(Los Defensores, supra, 223 Cal.App.4th at p. 390.) “In general, a court may
not impose issue, evidence, or terminating sanctions unless a party disobeys
a court order.” (Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1,
8
11.) This requirement “ ‘provides some assurance that such a potentially
severe sanction will be reserved for those circumstances where the party’s
discovery obligation is clear and the failure to comply with that obligation is
clearly apparent.’ ” (Ibid.) However, a trial court may order terminating
sanctions for discovery abuse after considering the totality of the
circumstances: (1) whether the party’s actions were willful; (2) any detriment
to the propounding party; (3) and the informal and formal efforts to resolve
the dispute. (Los Defensores, supra, 223 Cal.App.4th at p. 390.)
We review a court’s entry of an order granting terminating sanctions
for abuse of discretion. (Liberty Mutual Fire Ins. Co. v. LcL Administrators,
Inc. (2008) 163 Cal.App.4th 1093, 1101-1102 (Liberty Mutual).) The
appellant bears the burden of establishing the court abused its discretion.
(Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366.) “We presume
the trial court’s order was correct and indulge all presumptions and
intendments in its favor on matters as to which it is silent.” (Williams v.
Russ (2008) 167 Cal.App.4th 1215, 1224; Los Defensores, supra, 223
Cal.App.4th at pp. 390-391.)
Soofi argues that he initially made mistakes in his responses to
discovery because he misunderstood the discovery statutes, did not have an
experienced attorney guiding him through the process, and only had access to
an old computer with technological limitations and the law library, but no
internet access at home. He contends he is the victim of “clever counsel” who
confused him by serving meet and confer letters knowing he would have
difficulty meeting the timeline requested and who “bank[ed] on” an
“empathetic Court for good results.” He also insists that any noncompliance
was not willful and therefore did not justify terminating sanctions.
9
In Soofi’s first set of discovery responses, he provided one response to
all Defendants for each type of propounded discovery request, failed to
provide all the requested documents, and submitted several answers that
were incomplete. By his seventh amended responses, he had addressed many
of the initial deficiencies, but not all of them. And those corrections came
after repeated attempts at informal resolution through meet and confer
correspondence over a period of nearly 10 months and after the court
repeatedly ordered compliance and issued monetary and evidentiary
sanctions. The court recognized Soofi’s improvements and told Soofi it was
taking an incremental approach to issuing sanctions, and it detailed the
specific problems with Soofi’s responses multiple times. But Soofi
continuously failed to correct persistent errors.
Although Soofi maintains that he had attempted to cure his deficiencies
and had not actually refused to provide discovery responses, his failure to
actually repair the issues and provide responses that directly addressed the
admissions and other information sought may as well have been a refusal.
Whether or not Soofi’s nonresponsiveness was willful, as the court explained,
his failure to provide the requested discovery impeded Defendants’ ability to
mount an affirmative defense. (Los Defensores, supra, 223 Cal.App.4th at
p. 390.)
The court told Soofi the terminating sanctions were being issued not
just because of a failure to answer a single question or a failure to comply
with requirements in a single regard, but because Soofi’s errors were replete
and multitudinous. It acknowledged that it could not know what was in
Soofi’s heart, but when it considered all the circumstances objectively, it
concluded Soofi had repeatedly failed to comply with discovery requests, with
court orders, with payment of sanctions, and with the discovery process more
10
broadly. It also explained that Soofi’s failure to answer the discovery
requests and comply with the discovery requirements was impeding
Defendants’ ability to develop its affirmative defenses and causing them to
operate in the dark. (See Los Defensores, supra, 223 Cal.App.4th at p. 390.)
The trial court’s decision to terminate the action, in light of the totality of the
circumstances, was not arbitrary or capricious (ibid), and it therefore did not
abuse its discretion. (See Liberty Mutual, supra, 163 Cal.App.4th at
pp. 1101-1102.)
Even accepting that Soofi simply misunderstood discovery statutes and
requirements initially, he continuously provided incomplete or nonresponsive
information to Defendants for 10 months and over the course of seven sets of
amended responses. This was ample time to correct his errors and
supplement the information sought by Defendants. And while we recognize
that Soofi is an in propria persona litigant, “ ‘such a party is to be treated like
any other party and is entitled to the same, but no greater consideration than
other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case
with attorneys, pro. per. litigants must follow correct rules procedure.
[Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu).)
Finally, because the terminating sanctions dismissed the “entire case,”
this included the court’s earlier order sustaining the demurrers and the
motion to strike. Accordingly, we need not evaluate the court’s reasoning
regarding its earlier order.
B. Judicial Bias
Soofi argues that the court’s determinations were fraught with bias and
the result of impatience and favoritism for Defendants, warranting reversal
and a different judge on remand.
11
1. Additional Facts
April 19, 2019 Hearing
At the April 2019 hearing, Soofi told the court he had responded to the
discovery requests to the best of his ability “without jeopardizing the merit”
of his case. Soofi complained to the court about a variety of issues8 before he
addressed the discovery issues before the court. He told the court he had
complied with discovery rules and did not understand the motion to compel.
The court told Soofi that in representing himself, he was required to abide by
all the rules of law, rules of court, and rules of discovery, and it explained it
could not give him legal advice. The court told Soofi that the problems with
his discovery responses were explained and written out, referring to the meet
and confer communications and the motion to compel. The court also
suggested to Soofi that he could ask opposing counsel to reiterate the
information in the hallway after the hearing.
June 21, 2019 Hearing
At the June 21, 2019 hearing on Defendants’ motion for sanctions, Soofi
told the court there were a number of inaccuracies in the information upon
which the court had based its decision. After Soofi argued that he had
provided the requested information during the discovery process, the court
asked him if he had explained everything in his pleadings, and Soofi said he
had. The court told him it had read and considered Soofi’s papers. Soofi said
he was concerned the court may have missed reading some areas, and the
8 He did not think it was appropriate that Defendants had scheduled a
hearing date for a motion to compel before knowing whether his responses
would be satisfactory. He had to print materials one at a time in order to
provide them. He was having difficulty receiving discovery responses. He
was “harasse[d]” during his deposition to share notes he took while being
deposed.
12
court told Soofi to just highlight the points. Soofi told the court he lost track
of his thoughts, and the court told him to take some time.
When Soofi began speaking about what had occurred during two
previous hearings before the court, the court interrupted him and said it
needed to take recess in a few minutes and to give opposing counsel an
opportunity to respond. The court permitted Soofi to read an additional page
of his argument. Soofi continued to argue for several more minutes, and he
made arguments again after opposing counsel spoke.
Soofi asked the court to supply a list of discovery deficiencies, and the
court directed him to discuss them with opposing counsel.
August 23, 2019 Hearing
At the August 23, 2019 hearing on Defendants’ motion for sanctions,
the court detailed several deficiencies in Soofi’s discovery responses,
including the incomplete response to Form Interrogatories Nos. 6.5 and 17.1.
It outlined what information was missing. Soofi told the court he had not
been properly heard because he was a self-represented plaintiff, complained
that the court had used language from Defendants’ papers in its ruling, and
suggested the court had not read his arguments or had done so poorly.
After making several arguments, he commented twice more that it
seemed the court did not read his opposition or his declaration, and the court
responded: “Everything that you filed was read thoroughly by this Court. I
can guarantee you that.” But Soofi insisted the court missed information in
its reading of the materials. Following some additional argument by Soofi,
the court asked him to wrap up his argument because Soofi had given a five-
minute estimate. Soofi told the court he had actually requested 15 minutes,
then continued reading from his papers. The court told him that it had
already read all his papers, and Soofi did not need to read them to the court.
13
Soofi disagreed, and the court explained that the information had been
presented in writing, and unless Soofi had new information, he did not need
to repeat it—and that was true for anyone appearing in the court.
Soofi replied, “But, your Honor, I’m disputing whether it’s been read
because it’s obvious information here that has not been—” The court again
told Soofi that it had read the materials. Soofi continued identifying items
from his filing.
Soofi asked the court if it had an obligation to tell Soofi the ways in
which Soofi had not complied with discovery requests, and the court
responded that it was not his attorney, and that it had already “spelled out in
great painstaking detail the deficits in the discovery responses.” The court
noted that it had looked at the information impartially and fairly, as it does
with any attorney or party. Soofi then told the court: “I [am] 63 years old.
My IQ is higher than 99 percent of the population. English is my third
language. I have highest educational degree this land can offer. I’ve traveled
extensively. [¶] If I, as plaintiff in pro per, cannot represent myself and
cannot read the law, I have reviewed hundreds and hundreds of case laws
and hundreds of statutes, if I cannot understand what a statute is asking,
nobody else can.” He continued, “I’m telling you that every statute has been
complied. The three citation that—four citation that your assistant probably
reviewed in this case have mentioned . . . have been responded properly
according to law.”
The court told Soofi that Soofi was questioning its judgment, which was
not a good path, that Soofi had thrice accused the court of not reading his
pleadings, but it had read every word of Soofi’s pleadings. Soofi said, “I
apologize if I insulted the Court.” The court told Soofi it was applying the
law.
14
Soofi accused the court of having already decided it would terminate
the case, and the court clarified that it could not prejudge what would occur,
but if it were shown that Soofi did not comply with the court order, there was
a possibility of terminating sanctions: “I can’t say that’s going to happen
now. I’m not going to prejudge it. We’ll see what your responses are. You’ve
got an additional opportunity to comply with the Court’s order.”
The court told Soofi it needed to move on, and it understood his
position. Soofi asked to go on the record that he was not being properly
heard. Soofi began to argue that he had suffered emotional harm, and the
court interrupted him to conclude the matter.
October 16, 2019 Hearing
At the October 16, 2019 hearing at which terminating sanctions were
issued, the court explained that Soofi’s failure to answer questions and
comply with discovery requirements was impeding Defendants’ ability to
bolster its affirmative defenses, causing them to operate in the dark. After
back-and-forth about the volume of discovery issues and the repetitious non-
compliance, Soofi argued that the court was saying he could not bring a
complaint because he was not a lawyer and could not afford a lawyer. The
court replied, “That’s in no way, shape, or form the basis of what I’ve been
talking about.”
Before closing out the matter, the court reiterated that its decision had
nothing to do with Soofi’s self-representation or whether he could afford an
attorney, but instead was the result of persistent failure to comply with the
court’s discovery orders.
15
2. Analysis
Every litigant has a due process right to an impartial decisionmaker. 9
(Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013)
57 Cal.4th 197, 212.) Due process requires judicial disqualification only
under the “ ‘most “extreme facts.” ’ ” (People v. Cowan (2010) 50 Cal.4th 401,
456-457.) The appellant bears the burden of showing the actual probability
of bias by the judge. (Id. at p. 456.) It is not our role to examine whether the
trial court’s comments may have been better left unsaid or whether the trial
judge’s behavior left something to be desired. (Schmidt v. Superior Court
(2020) 44 Cal.App.5th 570, 589.) Further, a trial court’s rulings against a
party do not establish judicial bias. (Andrews v. Agricultural Labor Relations
Bd. (1981) 28 Cal.3d 781, 795-796.)
Soofi cites to Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247
(Catchpole) for the proposition that the appearance of bias requires reversal
of judgment. However, our Supreme Court has disapproved of this
proposition, noting that the trial court’s behavior in Catchpole “amounted to a
showing of actual bias based on comments by the judges” because it involved
9 Soofi’s briefing confuses the constitutional due process right to an
impartial jurist with the statutory right to disqualify a judge for bias. The
statutory basis for disqualifying judges is provided in Code of Civil Procedure
section 170.1, and other sections detail the procedures for determining the
motion. Review of such a determination is available only through a petition
for writ of mandate. (See People v. Freeman (2010) 47 Cal.4th 993, 1000
(Freeman).) In any event, the record does not reveal that this procedure was
used in this matter, and we accordingly address only the issue of judicial bias
under due process.
16
a pattern of conduct that “rendered a fair trial impossible.”10 (Freeman,
supra, 47 Cal.4th at p. 1006, fn. 4.)
Soofi’s citation to Liteky v. United States (1994) 510 U.S. 540 is also
unhelpful to his argument. The U.S. Supreme Court there explained that
judicial remarks “that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion that derives
from an extrajudicial source; and they will do so if they reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible. . . .
Not establishing bias or partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of
what imperfect men and women, even after having been confirmed as federal
judges, sometimes display. A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at
courtroom administration—remain immune.” (Id. at pp. 555-556.) Even if
the trial court’s behavior here demonstrated impatience, dissatisfaction, or
annoyance with Soofi, the court did not indicate a high degree of favoritism
10 In his reply brief, Soofi compares his situation to the situation of the
wife in In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1499-1500.
There, the court’s statements indicated preconceptions about the parties
based on their gender, and the preconceptions influenced the court’s
perceptions of the parties’ credibility. We find the comparison inapt as the
court in Iverson made biased statements about the parties’ genders while the
court here merely stated the law regarding self-represented litigants.
Moreover, the Supreme Court disapproved of Iverson for the same reason it
disapproved of Catchpole: although language in those decisions addressed
the appearance of bias, the facts demonstrated actual bias. (Freeman, supra,
47 Cal.4th at p. 1006, fn. 4.) Cases that involve the mere appearance of bias,
without the probability of bias, should be resolved under disqualification
statutes, not as violations of the due process clause. (Id. at p. 1005.)
17
for Defendants; nor was the court so antagonistic toward Soofi that it made
fair judgment impossible.
Soofi maintains that the trial court’s behavior was not “incidental
temperamental impatience.” He describes the court as “disinterested,” “half
attentive,” “missing the point,” “pretending to be listening,” belittling,
rushing plaintiff and cutting him off, and Soofi maintains this behavior
continued “all the way through the last hearing on this case.” Soofi also
complains that the court told him it could not give him advice and suggested
he consult with an attorney, which he claims was evidence that the court had
deemed him incompetent, implying bias against self-represented litigants.
Our review of the transcripts does not uncover evidence of either
apparent or actual judicial bias. The court raised Soofi’s status as a litigant
in propria persona only at the first hearing, to explain that in representing
himself, Soofi was required to abide by all the rules of law, rules of court, and
rules of discovery, and it explained it could not give him legal advice. But
that does not reflect any bias; it reflects the status of the law. (Nwosu, supra,
122 Cal.App.4th at p. 1247 [propria persona litigants entitled to same
consideration as licensed attorneys].) In subsequent hearings as well as
filings, it was Soofi who raised his self-represented status as an issue
repeatedly.
During the August 2019 hearing, Soofi argued he was not properly
being heard because of his self-represented status, and it was only after Soofi
asked the court if it was obligated to tell him all the ways in which he had
failed to comply with discovery requirements that the court said it was not
his attorney. Even so, the court provided him details regarding the
deficiencies in his discovery responses. In his opposition to Defendant’s
second motion for terminating sanctions, Soofi argued his status as a self-
18
represented party explained his failures, implying it justified the discovery
deficiencies. And during the October 2019 hearing, it was Soofi who
referenced his status as a pro per litigant, arguing he believed the court’s
ruling meant he could not bring a complaint because he was not a lawyer and
could not afford lawyers.
Soofi also asserts the court was biased because it did not identify for
him explicitly on the record what to do to bring his discovery responses into
compliance, instead directing Soofi to read the correspondence from opposing
counsel, which detailed that information, and suggesting Soofi talk with
opposing counsel to ask for clarification. While the court did direct Soofi to
communicate directly with opposing counsel for this information, it also
detailed for him deficiencies in his discovery responses, both orally during
hearings and in its written discovery orders.
It appears that Soofi’s frustration is not really that the court did not
hear him, but that the court did not agree with him. At the June 21 hearing,
Soofi told the court he believed the court missed some of his arguments in
reviewing the papers he submitted. And at the August 23 hearing, Soofi told
the court it seemed the court had not read his opposition or his declaration
and that the court missed information in reading his materials. Then, after
repeatedly disputing whether the court had read his papers Soofi told the
court that he had complied with every statute, that if he could not
understand what a statute was asking, no one could, that it was probably the
court’s assistant who had reviewed the paperwork, and that the deficiencies
the court had identified had been responded to properly. Even then, the
court’s response was measured, telling Soofi it had read every word of his
pleadings. And after Soofi apologized “if [he] insulted the [court],” the court
explained that it was simply applying the law. There is simply nothing in
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these exchanges that indicates the court was biased against Soofi because of
his status as a litigant in propria persona.
Finally, Soofi argues that the court’s denial of his separate ex parte
requests for access to discovery showed bias and were material to his ability
to defeat Defendants’ motion for terminating sanctions. But Soofi merely
needed to comply with the discovery statutes to avoid terminating sanctions
here. He does not explain how or why the court’s decision to deny an ex parte
request to compel a third-party witness to deposition or to deny any of his
other discovery requests has anything to do with his ability to defend against
the motion to compel at issue here.11 (Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852 [when appellant fails to support a point with
reasoned argument, we treat that point as waived].)
11 Soofi references these discovery motions in the context of the court’s
alleged bias. However, these discovery requests and orders are not the
subject of this appeal, which focuses on the order issuing terminating
sanctions.
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DISPOSITION
The judgment is affirmed. Parties to bear their own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
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