A.K. v. R.K. CA2/5

Filed 11/25/20 A.K. v. R.K. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
A.K., B299143
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19TRFL00417)
R.K.,
Defendant and Respondent.
R.K., (Los Angeles County
Super. Ct. No.
Plaintiff and Respondent, 19TRO00195)
v.
A.K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Rolf M. Treu, Judge. Affirmed.
The Appellate Law Firm, Corey Parker and Berangere
Allen-Blaine, for Appellant A.K.
No appearance for self-represented Respondent R.K.
_________________________________
I. INTRODUCTION
A.K. (husband) appeals from the trial court’s orders
granting his former wife R.K.’s (wife) request for a domestic
violence restraining order (DVRO) against him and denying his
request for a DVRO against wife.1 Husband contends that the
trial court’s statements and rulings during the consolidated
hearing on the requested DVROs demonstrate that the trial court
prejudged the case and was biased against him. We affirm.
II. PROCEDURAL BACKGROUND
On March 15, 2019, wife filed a request for a DVRO against
husband. The trial court granted wife a temporary restraining
order against husband; their children were named as additional
protected persons.
On April 25, 2019, husband filed a request for a DVRO
against wife. The trial court granted husband a temporary
1 Husband’s opening brief does not make clear whether he is
appealing both orders or just the order granting wife’s request for
a DVRO. Nevertheless, our decision includes the trial court’s
denial of his request for a DVRO.
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restraining order against wife; their children were named as
additional protected persons.
The trial court ordered husband’s and wife’s requests for a
DVRO consolidated. It set the matter for a long cause hearing on
June 4, 2019.
Wife and husband were the only witnesses who testified at
the hearing of the matter, which took place on June 4, 5, and 6,
2019. Each testified about the other’s alleged transgressions, and
each denied, for the most part, the other’s allegations. At the
conclusion of the hearing, the trial court found husband lacked
credibility and granted wife’s request for a DVRO and denied
husband’s request for a DVRO.
III. FACTUAL BACKGROUND
Husband does not contend on appeal that substantial
evidence did not support the trial court’s order granting wife’s
request for a DVRO. Nor does he contend that, based on the
evidence, the trial court erred in denying his request for a DVRO.
Instead, he argues that the court displayed judicial bias when it
twice expressed its belief that wife had, prior to the presentation
of husband’s evidence, presented sufficient evidence to establish a
prima facie case of domestic violence. He further argues that the
court displayed judicial bias by interrupting his testimony more
often than it interrupted wife’s testimony and by sanctioning him
$50 for twice violating its order that he answer “yes or no”
questions “yes” or “no.” We recite the underlying facts of these
arguments in our discussion below.
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IV. DISCUSSION
Husband contends that the trial court’s bias against him in
finding that wife had demonstrated a prima facie case of domestic
violence prior to his presentation of evidence and in its conduct of
the hearing deprived him of due process. We disagree.
A. The Domestic Violence Prevention Act (DVPA)
“Pursuant to the DVPA, (Fam. Code, § 6200 et seq.)[2], a
court may issue a protective order ‘“to restrain any person for the
purpose of preventing a recurrence of domestic violence and
ensuring a period of separation of the persons involved” upon
“reasonable proof of a past act or acts of abuse.”’ [Citations.]
“The DVPA defines domestic violence, as relevant here, as
abuse perpetrated against a spouse or the child of a party.
(§ 6211, subds. (a) & (e).) Abuse includes ‘plac[ing] a person in
reasonable apprehension of imminent serious bodily injury to
that person or to another’ or ‘engag[ing] in any behavior that has
been or could be enjoined pursuant to [s]ection 6320.’ (§ 6203,
subd. (a)(3), (4).) Enjoined conduct includes molesting, striking,
stalking, threatening, [sexually assaulting, battering,] or
harassing. (§ 6320, subd. (a).) The DVPA requires a showing of
past abuse by a preponderance of the evidence. [Citations.]” (In
re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225–
226, fn. omitted.)
2 All statutory references are to the Family Code unless
otherwise noted.
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B. Factual Background
1. The Trial Court’s Prima Facie Case Statements
Wife testified that she and husband were married in 2008.
They had two children together. Husband’s domestic violence
began in 2017 and continued until wife filed her request for a
temporary restraining order in March 2019.
From 2017 to March 2019, husband physically assaulted
wife. He also threatened her by saying that she had to leave the
house immediately, he would cancel her H-4 visa and her work
authorization, and he would separate her from her children.
Daily, husband checked the phone call logs on wife’s cell phone.
He either requested or took wife’s cell phone. Wife tried to resist
giving husband her phone once or twice and husband pulled her
hand to “snatch away” the phone violently.
On March 5, 2019, husband told wife that she was not
permitted to speak with her mother on the phone for more than
10 minutes and she had spoken with her mother for an hour.
Husband held her arm “badly,” “pulling it behind” in an effort to
take her phone.
Asked if there were physical acts of violence in general,
wife responded that it happened every other day. Husband
forcefully threw her on the couch, closed her mouth so she could
not breathe or speak, pulled her hands, and dragged her out of
the house and closed the door.
On one occasion in 2017, husband dragged wife down the
stairs and threw her out of the house. It was after midnight, and
wife did not have her phone, so she could not call anyone for help.
On another occasion, in July 2018, husband presented wife with
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divorce papers and told her to sign them or leave the house. Wife
refused to sign and began recording husband on her cell phone.
Husband became “really violent” and tried to “snatch” wife’s
phone. Wife tried to call 911 on the home’s landline, but husband
“snatched” it away and “dismantled” it. Husband then pushed
wife out of the house and closed the door. The assault occurred in
front of their eight-year-old son.
Husband also physically assaulted wife on June 25, 2018,
holding her tightly by her shoulders and pulling on her hand so
that she could not free herself. Husband had presented wife with
divorce papers that she refused to sign.
During the period from 2017 to March 2019, husband
sexually assaulted wife five to six times. On March 6, 2019,
husband forced wife to have sexual intercourse with him.
Husband told wife every day that if she wanted to stay in the
house with the children, she had to “fulfill [her] duties” as his
wife and “satisfy” him. Because she had no choice, she complied.
On March 6, husband was “very wild” and “act[ed] like an
animal.” “There was a lot of force in his actions,” which caused
wife pain. Wife stopped husband and told him he “need[ed] to be
gentle,” but “[t]here was a lot aggression on his face, he was very
angry, and he continued doing that.” Wife objected two or three
times, but husband did not stop. Husband sexually assaulted
wife in the same manner five or six times.
Prior to the sexual assault wife described, husband forced
her to have anal intercourse. Wife had refused husband’s
demand, and he told her to comply or it “will be even worse.”
Husband said, “[Y]ou will not be able to bear my force.” Wife
resisted, trying to push him back, but she was unsuccessful—
husband held her “by his hand and [she] was in pain.”
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In December 2018 or January 2019, husband inspected
wife’s vagina with a flashlight. He told her his intention was to
determine if she was “doing something wrong outside” of the
house. Husband touched wife during the incident, causing her
pain.
About a month prior to the flashlight incident, husband
forced wife to have anal intercourse. It was by force and painful
and occurred under essentially the same circumstances as the
later incident set forth above.
At that point, the trial court recessed. When proceedings
resumed, the court inquired of wife’s counsel how much longer he
intended for wife to testify. Counsel estimated about 45 minutes
to an hour and 15 minutes. The court stated, “You have
presented several instances on a prima facie basis of abuse, of
course subject to cross-examination and other evidence. But if
you feel you need to present more, it’s up to you. But be guided
by your time.”
Counsel resumed his examination of wife and she testified
about other matters in support of her requested DVRO. After
wife concluded her testimony, counsel sought to call husband
pursuant to Evidence Code section 776.3 The trial court stated,
“I’ve told you, you presented a prima facie case subject to cross-
examination, and subject to cross-examination of him when he
testifies. Why—what is the need for this procedure?” Counsel
responded that he wanted to address inconsistencies in a
3 Evidence Code section 776, subdivision (a) provides, “A
party to the record of any civil action, or a person identified with
such a party, may be called and examined as if under cross-
examination by any adverse party at any time during the
presentation of evidence by the party calling the witness.”
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declaration husband submitted in response to wife’s DVRO
request. The court told counsel that he could address the matter
in cross-examination. Counsel agreed and rested wife’s case.
2. The Trial Court’s Evidentiary Rulings
Throughout the hearing, the trial court interrupted wife’s
and husband’s testimony, instructing them to answer questions
directly, particularly yes or no questions. At some point in
husband’s testimony, after the court repeatedly had admonished
husband to answer the question put to him, the court stated, “I’m
going to warn you for the last time to answer the question only.”
It added, “The next time there will be a penalty.” Husband said
he understood.
Shortly thereafter, husband again failed to answer a yes or
no question “yes” or “no” and the trial court sanctioned him $25
for failing to obey its order. Husband’s counsel told the court that
English was not husband’s native language and he would speak
to husband and “explain to him exactly how he should be
answering the questions, [ ] if you give him one more
opportunity.” The court suspended imposition of the sanction
“pending compliance” with its order.
Later in his testimony, husband again failed to answer a
yes or no question “yes” or “no.” The trial court imposed the
previously suspended $25 sanction. The court later imposed
another $25 sanction for the same violation, stating to husband,
“Why can you not get this message?”
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C. Analysis
1. Forfeiture
A party’s failure to object in the trial court to the court’s
alleged bias forfeits the issue on appeal. (People v. Snow (2003)
30 Cal.4th 43, 78; Moulton Niguel Water Dist. v. Colombo (2003)
111 Cal.App.4th 1210, 1218 (Moulton).) Husband did not object
in the trial court to any of the court’s actions that he claims on
appeal demonstrate bias. Accordingly, he has forfeited this issue.
Even if he had not forfeited his argument on appeal, we would
reject it on the merits.
2. Merits
Parties have “a due process right to an impartial trial judge
under the state and federal Constitutions. [Citations.] The due
process clause of the Fourteenth Amendment requires a fair trial
in a fair tribunal before a judge with no actual bias against [a
party] or interest in the outcome of the case. [Citation.]” (People
v. Guerra (2006) 37 Cal.4th 1067, 1111 (Guerra), disapproved on
another ground by People v. Rundle (2008) 43 Cal.4th 76, 151.)
“Mere expressions of opinion by a trial judge based on
actual observation of the witnesses and evidence in the courtroom
do not demonstrate a bias. (Moulton[, supra,] 111 Cal.App.4th
[at pp.] 1219–1220 . . . ; [citation].) Moreover, a trial court’s
numerous rulings against a party—even when erroneous—do not
establish a charge of judicial bias, especially when they are
subject to review. [Citations.]” (Guerra, supra, 37 Cal.4th at
pp. 1111–1112; Andrews v. Agricultural Labor Relations Bd.
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(1981) 28 Cal.3d 781, 795–796 (Andrews) [“numerous and
continuous rulings against a litigant, even when erroneous, form
no ground for a charge of bias or prejudice”].)
a. Prima facie case statements
The trial court’s statements to wife’s counsel that he had
“presented several instances on a prima facie basis of abuse”
were not judicial bias for a number of reasons. First, they were
“[m]ere expressions of opinion by a trial judge based on actual
observation of the witnesses and evidence in the courtroom . . . .”
(Guerra, supra, 37 Cal.4th at pp. 1111–1112; Moulton, supra, 111
Cal.App.4th at pp. 1219–1220.) Second, they did not show that
the trial court had prejudged the ultimate issue in the case—
whether husband had engaged in domestic violence—as the court
explained that its preliminary view of the evidence was “of course
subject to cross-examination and other evidence.” Third, their
purpose was to cause wife’s counsel to manage his and the court’s
time. (Code Civ. Proc., § 128, subd. (a)(3) [a trial court has the
power to “provide for the orderly conduct of proceedings before
it”].)
b. Evidentiary rulings
Husband asserts that the trial court’s evidentiary rulings
demonstrated judicial bias. According to husband, the trial court
interrupted him at least 12 times and wife about 10 times.
Further, the court sanctioned husband twice for failing to follow
its order that he answer yes or no questions “yes” or “no” and did
not sanction wife when she failed to follow the same order.
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As we explained above, adverse evidentiary rulings—even
when numerous, continuous, and erroneous—do not establish
judicial bias. (Guerra, supra, 37 Cal.4th at p. 1112; Andrews,
supra, 28 Cal.3d at pp. 795–796.) Moreover, by husband’s own
estimate, the trial court’s interruptions of his and wife’s
testimony were relatively even—12 to 10—and did not
demonstrate even an inference of bias.
The trial court’s imposition of sanctions also did not show
bias.4 The court first warned husband that if he continued to fail
to answer questions directly there would be a penalty. Husband
said he understood. When husband violated the court’s order and
the court sanctioned husband, the court suspended the sanction
on husband’s counsel’s promise to explain to husband how he
should answer questions. Thereafter, when husband failed to
answer a yes or no question “yes” or “no” on two occasions, the
court sanctioned him. That the court did not also sanction wife
does not establish that the court was biased against husband.
4 Although husband cites the trial court’s imposition of
sanctions as evidence of bias, he does not directly challenge the
court’s imposition of sanctions for his conduct.
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V. DISPOSITION
The orders are affirmed. Wife is awarded her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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