Filed 4/2/15 Nathaniel D. v. Kristy W. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


NATHANIEL D. III,                                                     B254960

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. BF047416)
         v.

KRISTY W.,

         Defendant and Respondent.



         APPEAL from orders of the Superior Court of Los Angeles County,
David S. Cunningham III, Judge. Affirmed.


         Nathaniel D. III, in pro. per., for Plaintiff and Appellant,


         No appearance for Defendant and Respondent.




                                            _____________________
                                    INTRODUCTION
       Father Nathaniel D. appeals from the court’s order finding that Mother Kristy W.
would be the primary caregiver of the child and from an order denying his motion to stay
Mother’s request for child support. Father contends that the trial court erred when it
refused to take testimony from Father and his witnesses at the custody hearing, when it
refused to find that Mother’s request for child support was barred by res judicata or claim
preclusion, and when it denied Father’s request to issue a statement of decision upon
denying Father’s request to stay the child support hearing. We conclude that the trial
court did not abuse its discretion as it had good cause to refuse the testimony. As to the
trial court’s decision denying Father’s motion to stay the child support hearing, res
judicata and collateral estoppel were inapplicable and the court was not required to issue
a statement of decision on this motion. We affirm on all grounds.
                   FACTS AND PROCEDURAL BACKGROUND
       Father and Mother have a five-year-old child together and are unmarried.
Although they lived together for the first three years of the child’s life, Mother moved out
of the home with the child in 2012. Father brought the present petition requesting joint
custody and visitation in April 2013. In support of his petition, Father submitted his own
declaration as well as declarations from 23 individuals, which attested to Father’s
positive relationship with the child and spoke negatively about Mother. At the hearing
regarding child custody and visitation, the expert child custody evaluator, Mother, and
one of Father’s witnesses testified. The court refused to hear testimony from Father
because he appeared by phone rather than video, and testimony from Father’s sister
because it was cumulative. The court awarded primary physical custody to Mother and
ordered Father to have weekend visitation several times per month. The court also
ordered the parents to share legal custody, but gave Mother final decision making power
in the event of a conflict between the parents.




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        Subsequently, Father moved to stay Mother’s request for orders regarding child
support, arguing that the amount he owed in child support had already been adjudicated
in an action brought by the Los Angeles County Child Support Services Department.
While waiting for the court to complete its hearings regarding Mother’s request for orders
as to child support, the County of Los Angeles initiated an action against Father to
recover child support, because as a recipient of welfare, Mother had assigned her rights to
past and present child support to the County of Los Angeles. The court denied
Defendant’s motion and refused to issue a statement of decision as to the motion to stay,
which Father had requested.
                                      DISCUSSION
        Father contends that the trial court erred when it refused to take testimony from
Father and his witnesses, when it refused to find that Mother’s request for child support
was barred by res judicata or claim preclusion, and when it denied Father’s request to
issue a statement of decision upon denying Father’s request to stay the child support
hearing. We review custody and visitation orders for abuse of discretion. (Ragghanti v.
Reyes (2004) 123 Cal.App.4th 989, 995-996.) The family law court is vested with
discretion to receive evidence and, where necessary, take a matter off calendar and
continue it. (See Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1327; see Fam.
Code, § 217, subd. (b) [In making a custody determination, the court has discretion to
refuse to receive live testimony for good cause.].) We review the family court’s exercise
of its discretionary authority for abuse of discretion. (See In re Marriage of Falcone &
Fyke (2012) 203 Cal.App.4th 964, 995.) Under this deferential standard, we must uphold
the trial court’s ruling as correct on any legitimate basis. (Ragghanti, at pp. 995–996.)
“The issue whether collateral estoppel applies is itself a question of law, which question
we review de novo.” (Jenkins v. County of Riverside (2006) 138 Cal. App. 4th 593,
618.)




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       In reviewing any order or judgment we also start with the presumption that the
judgment or order is correct, and if the record is silent we indulge all reasonable
inferences in support of the judgment or order. (Yield Dynamics, Inc. v. TEA Systems
Corp. (2007) 154 Cal.App.4th 547, 556–557.) It is the appellant’s burden to demonstrate
error, and provide adequate citation to the record, and to present reasoned argument with
citation to supporting legal authorities. (Id. at p. 557.) Even where error is established,
we will only reverse where it is reasonably probable that absent the error, the appellant
would have obtained a more favorable result. (Ibid.)
1.     The Court Did Not Abuse Its Discretion in Refusing to Hear Testimony From
       Father and Father’s Non-Party Witnesses
       Father argues that the trial court committed reversible error when it refused to hear
testimony from Father and from his witnesses at the custody hearing in violation of
Family Code section 217. To the extent that Family Code section 217 requires the court
to receive “any live, competent testimony that is relevant and within the scope of the
hearing,” it also requires the party seeking to present live testimony to serve a witness list
prior to the hearing, and vests the trial court with discretion to refuse to receive live
testimony for good cause. (Fam. Code, § 217, subds.(a)–(c); see also Chalmers v.
Hirschkop (2013) 213 Cal.App.4th 289, 313.)
       When determining whether to refuse live testimony, the court must consider the
rules of evidence as well as: “(1) Whether a substantive matter is at issue--such as child
custody, visitation (parenting time), parentage, child support, spousal support, requests
for restraining orders, or the characterization, division, or temporary use and control of
the property or debt of the parties; [¶] (2) Whether material facts are in controversy;
[¶] (3) Whether live testimony is necessary for the court to assess the credibility of the
parties or other witnesses; [¶] (4) The right of the parties to question anyone submitting
reports or other information to the court; [¶] (5) Whether a party offering testimony from
a non-party has complied with Family Code section 217(c); and [¶] (6) Any other factor
that is just and equitable.” (Rules of Court, rule 5.113, subd. (b).)



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       a.     Exclusion of Father’s Testimony
       Here, Father’s counsel first proffered testimony from Doris Feely, the child’s
alleged nanny, and from Father. The court heard testimony from Feely. Then, the court
did not permit Father to testify because the proper arrangements were not made for Father
to testify remotely. Due to Father’s physical disability, he was not able to attend court in-
person. At previous hearings, Father appeared via video conference with the court, and
the court indicated that this method of appearing was appropriate for providing
testimony. Yet, at the custody hearing, Father appeared via court call, without video.
Mother’s counsel objected to Father’s testimony by way of phone, and the court refused
to hear testimony without live video. The court explained that the problem with taking
testimony over the phone is that the court cannot confirm the identity of the witness,
ascertain whether someone is feeding the witness answers, or assess the witness’s
demeanor. The court made the point that Father was permitted to testify, but not over the
phone. The court concluded that “[t]he problem with [Father] testifying is that he is not
physically present and the appropriate accommodations for him have not been made.”
       Under Evidence Code section 780, “the court . . . may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove or disprove
the truthfulness of his testimony at the hearing, including . . . [¶] (a) [h]is demeanor while
testifying and the manner in which he testifies.” As the Supreme Court has stated, “a
witness’s ‘demeanor is always relevant to credibility.’ [Citations.]” (People v. Scott
(2011) 52 Cal.4th 452, 493; accord Jordan v. O’Connor (1950) 99 Cal.App.2d 632, 641
[“The manner of the witness in testifying may impress the court with a doubt as to the
accuracy of his statement and influence it to disregard the witness’ positive testimony as
to a particular fact. It is the province of the trial court to determine what weight shall be
given to the testimony of any witness.”].) Determining the credibility of a witness and
assigning weight to testimony is an essential function of the finder of fact when hearing
testimony. Without the ability to perform those basic functions, or even verify the
witness’ identity, the court cannot properly evaluate the evidence. We thus conclude that



                                              5
the court had good cause to exclude Father’s phone testimony based on the court’s
inability to judge Father’s demeanor and credibility, or confirm his identity.
       b.     Exclusion of Non-Party Testimony
       Next, Father argues that the court improperly prevented him from introducing
testimony from “his mother and other family members and friends, [who were] outside
the courtroom, waiting to testify.” Yet, at the hearing, Father’s counsel indicated that
Father’s mother, who was in the courtroom, would not be testifying. Outside of Father
and Feely, the only additional witness Father’s counsel offered was Father’s sister.
Counsel stated that the sister would testify to “whether or not [Father] exerted undue
influence upon [Mother].” The court informed counsel that the undue influence
argument was unpersuasive and did not carry weight. The court stated: “What is
important for the court is who is going to take care of this child and under what
circumstances and who is most likely to provide this child with appropriate care so that
both parties have appropriate access to this child.” Father’s counsel then proposed that
the sister would testify to the strong relationship between Father and the child. The court
told counsel that such testimony would be cumulative. Father’s counsel then indicated
that he did not have any other witnesses to call and submitted on the evidence already
produced to the court.
       We conclude the court did not abuse its discretion in refusing to hear testimony
from Father’s sister. We read Family Code section 217, subdivision (a)’s requirement that
the court receive “any live, competent testimony that is relevant and within the scope of
the hearing,” in tandem with the rules of evidence, particularly Evidence Code section
352. (Rules of Court, rule 5.113, subd. (b) [stating that a court must consider the rules of
evidence in making a finding of good cause to exclude live testimony under Family Code
section 217]; see In re Romeo C. (1995) 33 Cal.App.4th 1838,1845 [The mandate in
Welfare and Institutions Code section 706 for the juvenile court to consider all “ ‘relevant
and material evidence that may be offered’ ” is not literal or absolute, but rather is subject
to the court’s appropriate exercise of discretion and must be read in conjunction with
Evidence Code section 352.].) Under Evidence Code section 352, subdivision (a), “The


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court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time . . . .” It is well established that trial courts “must exercise their discretion to
exclude under Evidence Code section 352 evidence that is unduly cumulative.” (People
v. Brady (2010) 50 Cal.4th 547, 583; Douillard v. Woodd (1942) 20 Cal.2d 665, 669
[“A trial judge is not bound to allow cumulative testimony upon the same point”].)
       Here, the trial court properly exercised its discretion to exclude the sister’s
testimony as cumulative evidence. As the court noted, Feely testified to the strong bond
between Father and the child. Additionally, Father submitted his own declaration in
addition to declarations from 23 individuals, spanning over 140 pages of the record,
which attested to Father’s positive relationship with the child and denied that Father had
undue influence over Mother. The testimony from Father’s sister, who we note had
already submitted a declaration on behalf of Father that attested to Father’s positive
relationship with the child, would have been clearly cumulative. We thus conclude that
the court did not abuse its discretion in excluding the sister’s testimony in the interest of
judicial efficiency.
       Moreover, there is no evidence in the record that Father complied with Family
Code section 217, subdivision (c), which requires the party seeking to present live
testimony of non-parties to serve a witness list prior to the hearing. This too weighs
against finding an abuse of discretion in excluding the testimony from Father’s non-party
witnesses.
       For all of these reasons, we conclude that the court established good cause to
exclude the testimony. Therefore, we find no reason to reverse the trial court’s order.
2.     Mother’s Request For Child Support Was Not Barred by Res Judicata or
       Collateral Estoppel
       Father asserts that the court erred in not granting his request to stay or take off
calendar Mother’s pending request for an order regarding child support. Father asserted
below and again argues on appeal that Mother’s request was barred by res judicata and
that Mother was collaterally estopped from attacking a prior judgment on this issue of


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support. Our Supreme Court in Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788
explained: “ ‘As generally understood, “[t]he doctrine of res judicata gives certain
conclusive effect to a former judgment in subsequent litigation involving the same
controversy.” [Citation.] The doctrine “has a double aspect.” [Citation.] “In its primary
aspect,” commonly known as claim preclusion, it “operates as a bar to the maintenance of
a second suit between the same parties on the same cause of action. [Citation.]”
[Citation.] “In its secondary aspect,” commonly known as collateral estoppel, “[t]he
prior judgment . . . ‘operates’ ” in “a second suit . . . based on a different cause of
action . . . ‘as an estoppel or conclusive adjudication as to such issues in the second action
as were actually litigated and determined in the first action.’ [Citation.]” [Citation.]
“The prerequisite elements for applying the doctrine to either an entire cause of action or
one or more issues are the same: (1) A claim or issue raised in the present action is
identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding
resulted in a final judgment on the merits; and (3) the party against whom the doctrine is
being asserted was a party or in privity with a party to the prior proceeding.
[Citations.]” ’ [Citation.]” (Id. at p. 797.)
       Here, Mother commenced the hearing regarding an order for child support on July
25, 2013. The court heard evidence but ran out of time to complete the hearing, and
continued it to February 2014. In August 2013, the Los Angeles County Child Support
Services Department initiated an action against Father to recover child support from
Father, because as a recipient of welfare, Mother had assigned her rights to past and
present child support to the County of Los Angeles. The hearing on the County’s action
occurred in December 2013, and Mother did not appear because she did not receive
notice of the hearing. Based on evidence of income submitted by Father, the court
ordered that Father was to pay $0.00 in monthly child support. Father asserts that this
order adjudicated the issue of child support, and that Mother is estopped from litigating
her child support claim.




                                                8
       We disagree because the County’s claim was not identical to Mother’s claim for
support. Mother’s “assignment of support rights to the County, by the terms of the
statute, is not an assignment of all future rights, but is rather an assignment of her rights
which have accrued at the time of the assignment, i.e., past due obligations. (See Welf.
& Inst. Code, § 11477.) Neither this statute nor any other statute of which we are aware
divests [Mother] of the right to seek security for future obligations. The County has a
concurrent right to sue for reimbursement for child support paid, but that right is not
stated to be exclusive as to future obligations or as to the right to seek security. (See
Welf. & Inst. Code, § 11350.)” (Taylor v. Superior Court (1990) 218 Cal.App.3d 1185,
1188.) Thus, Mother’s and the County’s causes of action can coexist without implicating
res judicata or collateral estoppel. Where the County sought to obtain payment for past
support in obtaining the December order, Mother, on the other hand, sought to establish
Father’s liability for future support payments. The claims and issues in the County’s
action and Mother’s action are clearly different.
       Furthermore, the Family Code expressly states that an order of child support “may
be modified or terminated at any time as the court determines to be necessary.” (Family
Code § 3651, subd. (a).) Mother is not precluded from seeking modifications of support
orders, and can petition for modification even after the court has made a determination
regarding the amount of child support. On this basis as well, res judicata and collateral
estoppel would be improper to apply under these circumstances.
       In sum, we conclude that the circumstances of this case clearly did not satisfy the
prerequisite elements for asserting res judicata or collateral estoppel as Mother’s action is
not identical to that brought by the County. In addition, this aspect of Father’s appeal
stems from an interlocutory order and is not proper for appeal. We therefore affirm the
court’s denial of Father’s motion to stay the support proceedings.




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3.     A Statement of Decision Was Not Required
       Father also asserts that the court erred in refusing to issue a statement of decision
as to the motion to stay or take off calendar the hearing regarding child support. “Code
of Civil Procedure section 632 requires the trial court to issue a statement of decision
‘upon the trial of a question of fact’ when it receives a request therefor by a party
appearing at trial. In general, however, section 632 applies when there has been a trial
followed by a judgment. [Citation.] It does not apply to an order on a motion.
[Citation.] This is true even if the motion involves an evidentiary hearing and the order is
appealable. [Citation.]” (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040
(Askmo).) Here, the hearing on Father’s motion to stay or take off calendar the child
support hearing did not involve a trial, nor was it followed by a judgment. As such, the
court was not required to issue a statement of decision. (See Ibid. [“Since the proceeding
on respondent’s order to show cause was not a trial and was not followed by a judgment,
under the general rule, the trial court was not required to issue a statement of decision.”].)
       “Exceptions to the general rule [regarding when to issue a statement of decision]
have been created for special proceedings. [Citation.] In determining whether an
exception should be created, the courts balance ‘ “(1) the importance of the issues at stake
in the proceeding, including the significance of the rights affected and the magnitude of
the potential adverse effect on those rights; and (2) whether appellate review can be
effectively accomplished even in the absence of express findings.” [Citation.]’
[Citation.]” (Askmo, supra, 85 Cal.App.4th at p. 1040.) Yet, Father neither argues that
this proceeding was special such that it warranted a statement of decision, nor provides us
with authority for that principle. Nonetheless, this proceeding does not satisfy the two
prong test required to create an exception because appellate review of this issue can be
and was effectively accomplished here. An exception to the general rule for issuing
statements of decision is thus inapplicable.
       Based on the foregoing, we affirm because the court was not required to issue a
statement of decision.



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                                   DISPOSITION
       The orders are affirmed. We award no costs on appeal as Respondent Kristy W.
failed to appear.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              KITCHING, J.

I concur:




                    EDMON, P. J.




                    ALDRICH, J.




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