Filed 2/11/14 Cook v. Smith CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


CONSTANCE COOK,
         Plaintiff and Respondent,
v.                                                                       A130939
GWENDOLYN SMITH,
                                                                         (Sonoma County
         Defendant and Appellant.                                         Super. Ct. No. SCV-247027)



         In this landlord-tenant action, defendant Gwendolyn Smith appeals from a
judgment in which plaintiff Constance Cook was awarded the aggregate sum of
$49,635.66 (past due rent for the period from July 6, 2009 to March 9, 2010, hold over
damages for the reasonable rental value from March 10, 2010 to August 10, 2010, the
cost of witness fees, and damages pursuant to Code of Civil Procedure section 735), and
the court dismissed Smith’s cross-complaint alleging causes of actions for, among other
things, breach of warranty of habitability, retaliatory eviction, and personal injury and
property damages. On appeal, Smith challenges the judgment on various grounds, none
of which requires reversal. Accordingly, we affirm.




                                                             1
                                          FACTS1
       A.     Background
       On February 19, 2009, after an inspection Smith took possession and began to live
in a rental unit that was owned by Constance Cook, as trustee of the 2004 Constance
Cook Revocable Trust. Smith stopped paying rent in July 2009.
       On March 15, 2010,2 Cook filed an unlawful detainer action against Smith based
on a notice to quit for failure to pay rent. The trial court denied Smith’s motion to quash
service and directed her to file an answer. Smith’s requests for writ relief challenging the
denial of her motion to quash were denied. After she unsuccessfully sought a change of
venue, Smith filed an answer on July 26, and the next day, requested the court to
schedule a date for trial. On July 27, Cook propounded discovery requesting documents
and answers to interrogatories from Smith.
       On August 10, the parties appeared before Hon. Gayle C. Guynup. Cook was
represented by counsel and Smith appeared in propria persona. At that time, the judge
announced the trial would start the next day at 9:00 a.m., a jury panel had been requested,
and the parties were directed to report at that time. Smith stated she had surrendered
possession of the premises and asked the court to return the case to the regular civil
calendar. Cook’s counsel confirmed that possession was no longer at issue and the case
should be transferred to a regular civil calendar. The court agreed, vacated the trial date,
and directed Cook’s counsel “to file an at-issue” memorandum identifying pending
issues. The case was set for a “short cause hearing” on September 1 at 8:30 a.m. On
August 23, Smith made her first request to amend her answer and file a cross-complaint
by filing a “notice of motion,” which was denied by the court. Two days later, Cook filed
a trial brief and witness list. On August 30, Smith filed “an ex parte application”


1
       The facts are taken in part from the trial court’s statement of decision and the
register of actions. The record on appeal does not include any of the parties’ pleadings or
motion papers filed in the trial court or a copy of the reporter’s transcript of the hearing
held on September 1, 2010.
2
       All further dates are in the calendar year 2010.


                                              2
requesting reinstatement of a jury trial and a trial continuance, which was denied by the
court.
         On September 1, the case appeared on the “short cause master calendar” before
Judge Mark Tansil. Cook was present with her counsel. Smith was not present, but
counsel Duane Light specially appeared for her. Light said that Smith was receiving
emergency surgery that day in Los Angeles, and he asked the court to continue the trial.
Over Cook’s objection, the court continued the trial to October 27, and directed that at
that time Smith was to submit proof of her medical emergency on September 1. Two
days before the scheduled trial date, on October 25, Smith made a second request to
amend her answer and file a cross-complaint by filing “an ex parte application,” which
was denied by the court.
         B.    Trial Proceedings
         On Wednesday, October 27, the parties appeared in court before Judge Tansil.
Cook was represented by counsel and Smith appeared in propria persona. When the case
was first called, the court stated, “So th[is] case will be tried today.” Smith replied,
“Your Honor, Gwendolyn Smith for Smith here, and it cannot be tried today.” The court
stated, “We will not talk about that right now. We’ll come back to that. It will be tried
today.” The court heard several other matters, and then recalled the case “for trial.”
Cook’s counsel responded that all of her witnesses were under subpoena but not all of
them had yet arrived in court. Smith asserted she was “completely unprepared for trial,”
she had been in Southern California undergoing some medical treatment and had since
“come back,” moved and enrolled her son in a new school. She further claimed she had
filed several requests to exercise her statutory right to amend her answer. At that point,
the court asked Smith to “[p]lease stop.” The court explained that the case had been
continued for about six weeks to give Smith plenty of time to prepare for trial and to
make any amendments that were necessary in what was “a pretty simple case that came
out of an unlawful detainer department.” The court asked Smith for proof demonstrating
that on September 1 at the call of the short cause calendar she was unable to appear based
on a medical emergency. Smith proffered a letter, which the court found did not


                                              3
demonstrate that Smith had a medical emergency on September 1. Smith offered to get
another, more detailed letter, and apologized if the court found the proffered letter
insufficient. The court denied Smith’s request to supplement the letter, noting the court
needed to move on.
       The court then asked Smith to explain why the trial could not commence that day.
Smith explained that she had sought to amend her pleadings, but the court had improperly
treated the motion as an application requesting ex parte relief and denied that relief. The
court confirmed it had denied the motion “because it was not presented in a proper
manner. This was presented ex parte. It is not an emergency. It should have been
presented in a normal pleading fashion with notice to the other side,” and had the motion
been filed in a timely manner, the court would have considered it. The court further
found that during the six-week continuance since September 1, Smith had made no
efforts to bring the issue of amending her pleadings to the attention of either Cook or the
court until just a few days before trial, which was “dilatory conduct” and “prejudicial” to
Cook who had been ready for trial on September 1. When Smith complained that a six-
week continuance was insufficient, the court replied that on September 1 Smith’s
attorney had not said anything about the length of the continuance granted by the court.
Smith did not reply to the court’s inquiry as to what discovery she had done in the six
weeks prior to the October 27 trial date. Instead, she described her claims against Cook
and what would be shown “in discovery,” and again explained why she had not retained
counsel and was not otherwise prepared for trial. The court replied, “I do understand this
point of view. Have a seat. We’ll proceed with the trial. We certainly want you to stay.”
The court further informed Smith that she might be allowed to amend her answer based
on the evidence that was presented at trial. However, the court would not continue the
trial because Smith had been completely dilatory and dishonest regarding a medical
emergency that caused a six-week continuance during which time Smith took no action
and she came in at the very last minute asking for another continuance.
       After further colloquy between the court and Smith, the court stated, “If you want
to have a seat and relax we’ll proceed on the hearing on the facts. At that point, Smith


                                             4
left the courtroom without comment. The court stated: “Well, this is an unusual case.
The Defendant has left the courtroom. I assume she is abandoning the hearing for
whatever reason. I never had that happen before, but I’ve been doing this for a long time
and unusual things occur. So at this time [we] will proceed with hearing evidence.” The
court ruled it would hold a trial in absentia because Smith “has voluntarily left the trial. I
tried to get her to stay but apparently all she wants is a continuance, and she does not
want to present information or question witnesses or possibly amend her answer based
upon the state of the evidence in the trial. So that is her choice. So we’ll proceed with a
court trial.”
       During Cook’s examination by her counsel, Smith reentered the courtroom. The
court asked Smith if she wanted to sit at the defense table and participate. Smith replied,
“Sure, Your Honor. The reason I’m back in the courtroom -- I spoke with my attorney
on [a related] case, which is so closely allied to this case, and which you were excused
for prejudicial conduct, and [the attorney] expressed some concern that on appeal this
entire process would be overturned.” Although the court attempted to stop Smith, she
continued: “That if I left the courtroom that might not happen. So I am back here to hear
you take one-sided testimony while I’m here with one witness and have not been given
the amended complaint and accused of dilatory action even though I offered to present
the Court with further medical documentation with [regard] to the emergency.” Smith
again asked the court to take the case off calendar, to which the court replied, “We’ve
been through that before.” When Smith continued to object, the court interrupted and
said: “You need to stop talking. We are right in the middle of some testimony. So you
are welcome to be here. You can listen and ask questions later.” As Cook’s counsel
continued his examination of Cook, Smith again left the courtroom without comment. At
that point the court stated, “If I can say again, Ms. Smith has left the courtroom. Maybe
she will be coming back. I don’t know. She did leave.”
       At the conclusion of Cook’s examination by her counsel, the court asked the
bailiff to see if Smith was outside the courtroom. After a few minutes, Smith returned to
the courtroom. The court asked Smith if she wanted to ask Cook any questions. Smith


                                              5
replied that she was sorry, she was “consulting with the attorney on another matter and I
missed [Cook’s] testimony. If you can be so kind to recap the highlights of it, I would
appreciate that.” The court declined to recap Cook’s testimony because Smith had
chosen to voluntarily leave the courtroom during the witness’s testimony. Because Smith
could call Cook as her own witness, the court indicated it would be “a little bit liberal in
allowing questions” that might exceed the scope of Cook’s direct examination. During
Smith’s examination of Cook, the court both sustained opposing counsel’s objections and
sua sponte informed Smith that some of her questions were inappropriate as they
assumed facts not in evidence, sought to elicit hearsay, were argumentative, or asked the
witness to speculate about certain matters.
       At the afternoon session on October 27, Cook completed her testimony, and she
called as witnesses Robert Herr, an environmental health specialist for the Sonoma
County Permit Resource Management Department; Annette Hill, a laboratory manager at
Brelje & Race Laboratories; and Smith as an adverse witness pursuant to Evidence Code
section 776. After Cook rested her case in chief, Smith called as witnesses Devorah
Blum and Zeus Harrison Smith, Smith’s 16-year-old son.
       At the beginning of the second trial day, Thursday, October 28, the court granted
Smith’s request to file her cross-complaint.3 When Smith attempted to discuss the
admission into evidence of other documents, the court admonished Smith that she was
not running the courtroom and she needed to then finish questioning her son. Smith
complied, and continued her examination of her son. Smith also called Cook as an


3
        The court’s statement of decision indicates that in the cross-complaint Smith
alleged causes of action for “(1) Breach of Warranty of Habitability, (2) Retaliatory
Eviction, (3) Breach of Covenant of Quiet Enjoyment of Lease Premises, (4) Fraudulent
Inducement, (5) Constructive Eviction, (6) Forcible Detainer, (7) Breach of Fiduciary
Duty to Protect Against Criminal Acts of Third Parties, (8) Conversion, (9) Trespass,
(10) Abuse of Process, (11) Defamation Per Se, (12) Assault and Battery, (13) Intentional
Infliction of Emotional Distress, (14) Conspiracy, (15) Personal Injury and Property
Damage from Toxic Mold, (16) Personal Injury from Carbon Monoxide Poisoning,
(17) Personal Injury and Property Damage from Lead Poisoning, and (18) Personal Injury
from Hydrogen Sulfide and Ammonia.”


                                              6
adverse witness pursuant to Evidence Code section 776. At the end of the day the court
asked the parties to indicate the number of witnesses each side expected to call at the next
court session on Monday, November 1. Smith anticipated that she would need time to
conclude her examination of Cook, and, then she planned to call eight additional
witnesses. The court told Smith that on Monday, November 1, she would be required to
be fully prepared to present witnesses back to back so that the case could be concluded.
       On the third day of trial, Monday, November 1, before the commencement of any
testimony, Smith again asked the court for a continuance. Smith asserted she had been
unable to subpoena certain witnesses to appear at trial. After Smith stated the proposed
testimony of one of the witnesses, the court replied, “Please stop making speeches. We
are not continuing the trial.” The court then heard from Deputy County Counsel Debbie
Lathum, who stated that on Friday afternoon, October 29, Smith had attempted to
subpoena a county employee but the notice was insufficient. Smith argued the notice was
sufficient because she had not served a subpoena duces tecum. Smith also asked for a
continuance because a “second expert witness,” who had been properly subpoenaed, was
not in court. The court replied, “Stop. Please stop. You were not prepared going into
this. You are trying to get witnesses in with inadequate notice. That is why the [c]ounty
[counsel] was here this morning. In any event, we need to finish [the] examination.”
When Smith asked the court why it had denied her a continuance to get expert witnesses,
the court replied that “[n]o good cause” had been proffered for the continuance. The trial
proceeded, with Smith and Cook’s counsel completing their examinations of Cook. The
court denied Smith’s request to recall as witnesses her son and Blum because they had
already testified concerning the issues before the court.
       At the conclusion of closing arguments, Smith stated she had an emergency and
she was sure that her presence was no longer required in the courtroom and she thanked
the court for its impartial hearing of the matter. When the court asked if Smith was
“leaving again,” Smith said, “Yes, Your Honor, I know that I have preserved my
objections on appeal and that what the Court has done today is reversible error.” The
court then stated that Smith was “again, abandoning the court,” and the court would take


                                             7
no further argument. The court issued its ruling in favor of Cook on her complaint, and
found against Smith on her cross-complaint. After the court issued an extensive
statement of decision, it entered a judgment in favor of Cook on her complaint and
against Smith on her cross-complaint. Smith timely appeals.
                                       DISCUSSION
       Smith presents several arguments in support of her claim that the judgment should
be reversed and the matter remanded for a jury trial. As we now discuss, we conclude
her contentions are without merit.
I.     Trial Court’s Denial of Smith’s Requests for Trial Continuances
       Smith argues the trial court’s denials of her requests for continuances were
“reversible error per se” because the time period from August 10, 2010 to October 27,
2010, was insufficient as a matter of law to allow her to retain counsel or properly
prepare for trial and present essential expert testimony. We conclude Smith’s argument
is unavailing. “Although continuances of trial are disfavored, each request for a
continuance must be considered on its own merits. The court may grant a continuance
only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of
Court, rule 3.1332(c).) As we now discuss, we conclude Smith has failed to demonstrate
that the trial court erred in its rulings addressing her requests for continuances.
       On August 30, twenty days after the action was returned to the regular civil
calendar, Smith made her first request for a trial continuance by filing an ex parte
application, which was denied by the court. However, Smith has elected to proceed in
this appeal without requesting that the clerk’s transcript include a copy of her ex parte
application filed on August 30. In the absence of that application, we cannot conclude
the trial court erred in denying the requested relief for a trial continuance at that time.
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (Ballard) [“[i]t is well settled, of course,
that a party challenging [an order] has the burden of showing reversible error by an
adequate record;” in the absence of an adequate record “we have no occasion to consider
further the merits”].)



                                               8
       Thereafter, on September 1, the trial judge granted Smith’s request for a
continuance and the trial was continued for six weeks until October 27. Smith’s counsel,
who specially appeared at that time, raised no objection to the length of the continuance
on the ground that it was insufficient to allow Smith to retain counsel or secure leave to
amend her answer, conduct discovery, and subpoena witnesses. Consequently, Smith’s
challenge to the six-week trial continuance on the ground of insufficiency is forfeited.
(Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [“[a]n appellate
court will ordinarily not consider . . . erroneous rulings, in connection with relief sought
. . ., where an objection could have been but was not presented to the lower court by some
appropriate method;” “[t]he circumstances may involve . . . acquiescence as to be
appropriately classified under the headings of estoppel or waiver;” “[o]ften, however, the
explanation is simply that it is unfair to the trial judge and to the adverse party to take
advantage of an error on appeal when it could easily have been corrected at the trial”].)
       We are also not persuaded by Smith’s arguments challenging the denial of her
request for a trial continuance on October 27. Smith contends she was entitled to a
continuance at that time as a matter of law because “[i]n no universe” could the six-week
continuance “be held to be sufficient time to prepare for trial on an action [in which]
discovery had yet to be conducted, counterclaims were at issue, no trial conference had
yet been held, no witnesses subpoenaed – in short, there was no time at all calendared for
the properly requested . . . jury trial.” However, once Smith learned that the trial had
been continued for only six weeks, she could not rely on her belief that six weeks was
insufficient. Instead, she was required to timely request an additional continuance with a
showing of good cause supported by written declarations. (Cal. Rules of Court, rule,
3.1332(b) 4.) Smith did not make the requisite written request for a continuance. She
waited until the date set for trial, at which time her request was made “without submitting
4
        California Rules of Court, rule 3.1332(b), reads: “A party seeking a continuance
of the date set for trial . . . must make the request for a continuance by a noticed motion
or an ex parte application under the rules . . . with supporting declarations. The party
must make the motion or application as soon as reasonably practical once the necessity
for the continuance is discovered.”


                                              9
a written declaration or providing prior notice [to either the trial court or Cook].
Although a trial court may excuse failure to comply with the requirement of a declaration
in support of a motion for continuance [citations], the court is not required to do so.”
(Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d
167, 172 (Mahoney).) 5
       In all events, Smith’s overarching argument that the denial of a continuance on
October 27 violated her right to due process is based on an incorrect legal premise.
“[T]here is no right to a continuance as a matter of law.” (Fisher v. Larsen (1982) 138
Cal.App.3d 627, 648.) Nor is there a “policy . . . of indulgence or liberality in favor of
parties seeking continuances.” (Mahoney, supra, 223 Cal.App.3d at p. 171, and the cases
cited therein.) More importantly, “ ‘[i]t is not every denial of a request for more time that
violates due process even if the party fails to offer evidence or is compelled to defend
without counsel.’ [Citation.] Instead, ‘[t]he answer must be found in the circumstances
present in every case, particularly in the reasons presented to the trial judge at the time
the request is denied.’ ” (People v. Howard (1992) 1 Cal.4th 1132, 1171-1172.) As an
appellate court, we cannot disturb a trial court’s denial of a continuance “ ‘except upon a
clear showing of an abuse of discretion.’ ” (Foster v. Civil Service Com. (1983) 142
Cal.App.3d 444, 448.)
       Several factors support the trial court’s refusal to grant Smith’s request for a
continuance on October 27. First, in the trial court Smith made no attempt to explain her
failure to file a written request for a continuance or why she should be excused from
doing so. Second, the trial court was free to reject Smith’s arguments that she proffered
on October 27. (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [“[p]rovided the trier of
5
        Smith’s arguments challenging the denial of her pretrial requests to file amended
pleadings are not properly before us. If she wanted us to consider her arguments that
there was no merit to those denials, she was “obligated to provide this court with the
documents necessary to make such a determination.” (United Teachers of Ukiah v.
Board of Education (1988) 201 Cal.App.3d 632, 643, fn. 8.) Because Smith did not
request that the clerk’s transcript include her pretrial motion papers seeking to amend her
pleadings, we cannot conclude those denials were erroneous. (Ballard, supra, 41 Cal.3d
at pp. 574-575.)


                                              10
fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though
the witness is uncontradicted”].) Third, the trial court reasonably found that during the
six-week continuance (September 1 to October 27), Smith had not made diligent efforts
to retain counsel and prepare for trial (by securing leave of the court to amend her
answer, conducting discovery, and subpoenaing expert witnesses). The register of
actions shows that during the six-week continuance Smith filed one ex parte application,
two days before the date set for trial, seeking only leave to amend the answer and to file a
cross-complaint. Fourth, the trial court could consider that a continuance would be
prejudicial to its calendar as the case would have to be rescheduled at some later
indeterminate time. Fifth, the trial court could consider that a continuance would be
prejudicial to Cook who had been prepared for trial on September 1, and again prepared
for trial on October 27 and had subpoenaed witnesses to appear that day. Accordingly,
we conclude Smith has failed to demonstrate that the trial court abused its discretion or
violated her due process rights in proceeding with the trial on October 27.
II.    Trial Court’s Denial of Smith’s Request for a Jury Trial
       Smith’s contention that the trial court improperly denied her request for a jury trial
is not supported by the record. At the morning session of the first day of trial, after the
trial judge denied Smith’s request for a continuance and said the case was going to
proceed “on the hearing on the facts,” Smith left the courtroom without comment and
gave no indication she was planning to return. Because Smith made no request for a jury
trial, the trial court was not required to either empanel a jury or retain any prospective
jurors and could consider Smith’s conduct as a waiver of a jury trial. (Code Civ. Proc.,
§ 631, subd. (f)(1) [a party waives a jury trial “[b]y failing to appear at the trial”]). The
trial judge then appropriately proceeded with a bench trial. When Smith returned to the
courtroom, she raised several objections and engaged the trial judge in a lengthy
colloquy. But, at no time did she object to the trial proceeding without a jury. Instead,
Smith sat through a portion of Cook’s direct examination, left the courtroom again
without comment, returned to the courtroom after Cook had completed her direct
examination, and questioned Cook on cross-examination. When the trial judge


                                              11
reconvened the court for the afternoon session, Smith apparently recognized that her
conduct during the morning session may have been considered a waiver of a jury trial.
She stated for the first time that she had forgotten to remind the court that she had filed
motion papers seeking to have a jury trial and at no time did she waive a jury trial. The
court replied, “We had a panel on hold. No one requested [a] jury and you clearly
waived that issue. So we are going forward.” 6 Smith insisted that any doubt about
whether she waived her right to a jury trial should be resolved in her favor. The court
replied, “Stop. You actually left the courtroom and were gone for a period of time,
abandoning the testimony by the Plaintiff. Then you suddenly, after talking to a lawyer
who is not here, came back in. Clearly, you waived any request for a jury today.” At the
end of the second day of trial, October 28, 2010, Smith again brought up the matter of a
jury trial when discussing the witnesses that she wanted to call to testify at trial. The
court again explained, “Ma’am, you left the courtroom. You abandoned the trial. We
started a court trial and you left.” Smith replied, “that’s not my recollection of the
events,” to which the court responded, “That’s what happened.” To which Smith replied,
“And I returned because I did not want you to slam dunk a default judgment.” When
Smith again asserted that she never waived a jury trial, the court interrupted and said,
“You did, in fact, abandon the trial. We made a finding on the record after you said you
were leaving that we were going to do a court trial.” Smith replied, “After I left, I came
back in and after the first witness was completely finished on direct and rejoined a trial in
progress. So at that point – I needed to take a break at this point.” On this record, we
conclude the trial court properly ruled that Smith had waived her right to a jury trial by
her conduct during the morning session of the first day of trial.
       Concededly, a court “may, in its discretion upon just terms, allow a trial by jury
although there may have been a waiver of a trial by jury.” (Code Civ. Proc., § 631, subd.


6
        Contrary to Smith’s appellate contentions, during the first few minutes of the
morning session before she left the courtroom the trial judge was under no obligation to
tell her that he had a jury panel on hold and the trial judge did not prevent her from
requesting a jury trial after the denial of her request for a continuance.


                                              12
(g).) However, “[b]cause the matter is one addressed to the discretion of the trial court,
that court’s denial of a request for relief of jury waiver cannot be reversed in the absence
of proof of abuse of discretion.” (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.) “In
exercising its discretion, a trial court may consider diverse factors: ‘[D]elay in
rescheduling the trial for jury, lack of funds, timeliness of the request and prejudice to all
the litigants.’ [Citations.] The court may also consider, ‘prejudice to . . . the court, or its
calendar’ [citation], the reason for the demand, i.e. whether it is merely a ‘pretext to
obtain continuances and thus trifle with justice’ [citation], whether the parties seeking the
jury trial will be prejudiced by the court’s denial of relief [citation] and whether the other
parties to the action desire a jury trial.” (Day v. Rosenthal (1985) 170 Cal.App.3d 1125,
1176.) In this case the trial court could reasonably find that Smith was not entitled to be
relieved of her jury waiver for several reasons. By the time Smith raised the issue of a
jury trial, the trial judge had commenced a bench trial, and Cook had presented a portion
of her case in chief and subpoenaed witnesses to appear at the afternoon session of the
trial. Granting Smith relief from her waiver would have caused prejudice to both the
court and its calendar and Cook. (Id. at p. 1176.) Had the court granted Smith’s request,
the matter would have had to be continued to allow for the empanelling of a jury and for
Cook to subpoena witnesses for a new trial. Additionally, “[t]he timing of [Smith’s]
request for relief from [her] jury waiver suggests that it was a ploy to obtain a
continuance. [Her earlier request for a] continuance[ ] had been denied. . . . What better
way to compel a continuance than to demand a jury trial? The implication is plain, and
the trial judge most likely perceived it: [Smith’s] request for relief from [her] waiver was
a back door path to a continuance. The trial court was justified in denying [Smith’s]
relief on the basis that [her] request was being used as a ‘pretext to obtain [a]
continuance[ ] and thus trifle with justice.’ ” (Id. at pp. 1177-1178.) Accordingly, we
conclude that “[t]here existed in this case ‘reasonable or even fairly debatable
justification, under the law, for the action taken.’ [Citation.] The trial court exercised its
discretion in the context of what it perceived to be these justifications. It did not act
arbitrarily; rather it proceeded reasonably in making its decision.” (Id. at p. 1178.)


                                              13
III.   Smith’s Claims of Judicial Bias
       Finally, we are not persuaded by Smith’s argument that the trial proceedings were
tainted by judicial bias. Smith did not file a statutory disqualification motion against
Judge Tansil in this action. Consequently, she has forfeited any arguments that either
Judge Tansil was statutorily disqualified, or that Judge Tansil was statutorily precluded
from accepting a trial assignment of this case because Smith had previously disqualified
the judge in another case. (See People v. Freeman (2010) 47 Cal.4th 993, 1000
(Freeman); see People v. Williams (1997) 16 Cal.4th 635, 652 & fn. 5.) Accordingly, we
evaluate Smith’s claims of judicial bias based on whether “the due process clause
require[s] judicial disqualification based on the mere appearance of bias.” (Freeman,
supra, at p. 1000.)
       In contrast to a statutory disqualification of a trial judge for the reason that “[a]
person aware of the facts might reasonably entertain a doubt that the judge would be able
to be impartial” (Code Civ. Proc., § 170.1 subd. (a)(6)(A)(iii)), “the United States
Supreme Court’s due process case law focuses on actual bias. This does not mean that
actual bias must be proven to establish a due process violation. Rather, consistent with
its concern that due process guarantees an impartial adjudicator, the court has focused on
those circumstances where, even if actual bias is not demonstrated, the probability of bias
on the part of the judge is so great as to become ‘constitutionally intolerable.’ (Caperton
v. A.T. Massey Coal Co. [(2009) 556 U.S. 868, 877] (Caperton).) The standard is an
objective one.” (Freeman, supra, 47 Cal.4th at p. 1001.) “Where only the appearance of
bias is at issue, a litigant’s recourse is to seek disqualification under state disqualification
statutes: ‘Because the codes of judicial conduct provide more protection than due
process requires, most disputes over disqualification will be resolved without resort to the
Constitution.’ ([Caperton, supra,] 556 U.S. at p. [ 890].) Finally, the [Caperton] court
emphasized that only the most ‘extreme facts’ would justify judicial disqualification




                                               14
based on the due process clause. (Id. at pp. [886-887].)” (Freeman, supra, 47 Cal.4th at
p. 996).7
       We conclude that “[t]his case does not implicate any of the concerns – pecuniary
interest [Tumey v. Ohio (1927) 273 U.S. 510, 523], enmeshment in contempt proceedings
[In re Murchison (1955) 349 U.S. 133, 136-138], or the amount and timing of campaign
contributions [Caperton, supra, 556 U.S. at p. 883-884] – which were the factual bases
for the United States Supreme Court’s decisions in which it found that due process
required disqualification.” (Freeman, supra, 47 Cal.4th at p. 1006.) We also reject
Smith’s claim that her prior disqualification of Judge Tansil in another case, standing
alone, constitutes “the kind of showing that would justify a finding that [her] due process
rights were violated.” (Ibid.) Smith knew she had a statutory right to disqualify Judge
Tansil and failed to pursue it. “Having forfeited that remedy, she cannot simply fall back
on the narrower due process protection without making the heightened showing of a
probability, rather than the mere appearance, of actual bias to prevail.” (Ibid.)
       Our review of the record does not support Smith’s claim of judicial bias or
prejudice in violation of her due process rights. “ ‘To ensure that the proceedings appear
to the public to be impartial and hence worthy of their confidence, the situation must be
viewed through the eyes of the objective person.’ [Citations.] While this objective
standard clearly indicates that the decision on disqualification not be based on the judge’s
personal view of his own impartiality, it also suggests that the litigants’ necessarily
partisan views not provide the applicable frame of reference.” (United Farm Workers of
America v. Superior Court (1985) 170 Cal.App.3d 97, 104, fn. omitted.) “ ‘[O]ur role . . .
is not to determine whether the trial judge’s conduct left something to be desired, or even
7
        We decline Smith’s request that we consider People v. Freeman (2007) 147
Cal.App.4th 517, which was reversed by our Supreme Court’s opinion in Freeman,
supra, 47 Cal.4th 993. Once an opinion is no longer published, it must not be cited or
relied by a court or a party in any other action. (See Cal. Rules of Court, rules
8.1105(e)(1) [“an opinion is no longer considered published if the Supreme Court grants
review . . .”]; 8.1115(a) [“an opinion of the California Court of Appeal . . . that is not
certified for publication or ordered published must not be cited or relied on by a court or
a party in any other action”].)


                                             15
whether some comments would have been better left unsaid. Rather, we must determine
whether the judge’s behavior was so prejudicial that it denied [Smith] a fair, as opposed
to a perfect, trial.’ ” (People v. Snow (2003) 30 Cal.4th 43, 78 (Snow), quoting United
States v. Pisani (2d Cir. 1985) 773 F.2d 397, 402 (Pisani).)
        Applying the above law, we first conclude that no charge of bias or prejudice can
be based on the trial judge’s rulings denying Smith a trial continuance and a jury trial.
(McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11.) We also see no merit to
Smith’s contention that the trial proceedings evidence that the trial judge’s “biased
conduct” went “well beyond any characterization of judicial control of the courtroom.”
A party appearing in propria persona is subject to the same rules and restrictions of an
attorney. Thus, “ ‘[i]t is well within [a trial court’s] discretion to rebuke [a party
appearing in propria persona], “sometimes harshly, when that [party] asks inappropriate
questions, ignores the court’s instructions, or otherwise engages in improper or delaying
behavior.’ ” (Snow, supra, 30 Cal.4th at p. 78, quoting United States v. Donato (D.C.
Cir. 1996) 99 F.3d 426, 434.) A review of the record here reveals nothing improper
about Judge Tansil’s attempts to stop Smith from talking at certain portions of the
proceedings. Nor do we see anything improper about Judge Tansil’s sua sponte
objections or comments addressing the inappropriate manner in which Smith framed her
questions to witnesses. (Pisani, supra, 773 F.2d at p. 402 [if a party “pursues an
objectionable line of questioning, he can hardly cry ‘foul’ when the judge sustains [an
opposing party’s] objection or even excludes the testimony sua sponte” (italics added)].)
When viewing the exchanges between Judge Tansil and Smith, either separately or
together, we do not believe the effect of the court’s remarks was to “discredit” Smith “or
create the impression it [was] allying itself with” Cook, and “we perceive nothing that
crossed the line into improper behavior.” (People v. Carpenter (1997) 15 Cal.4th 312,
353.)




                                              16
                                 DISPOSITION
     The judgment is affirmed. Constance Cook is awarded costs on appeal.



                                            _________________________
                                            Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




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