Opinion
G037233
4-18-2007
LINDA GONZALEZ, Plaintiff and Respondent, v. HEATHER OREY, Defendant and Appellant.
Heather Orey, in pro. per., for Defendant and Appellant. Linda Gonzalez, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Heather Orey appeals from the trial courts grant of a civil harassment restraining order against her. She argues the inadequacy of her attorney and judicial error and bias. She also contends that attorney fees and costs of $1860 were improperly awarded. We find that none of these contentions have merit and affirm the judgment.
I
FACTS
We begin by noting that both Orey and Gonzales appear in this case in propria persona. Their briefs suffer from various deficiencies. We have done our best to parse their arguments, particularly those in Oreys brief. (Gonzalezs brief includes only a list of facts without record references.) We remind both parties, however, that propria persona litigants are required to follow the rules of procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) This includes citing the record adequately and providing argument and authority on each legal issue. The failure to do so results in a waiver of the argument. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.)
Rule 8.204(2)(C) of the California Rules of Court requires the appellant to provide "a summary of the significant facts limited to matters in the record." Orey has failed to do so. To the extent we are unable to address any of her arguments based on her failure to provide a pertinent statement of facts, that argument is deemed waived.
We have gleaned the following from our review of the record. In March 2006, Gonzales filed a request for a civil harassment restraining order in superior court against Orey, her neighbor, for both herself and her family members. The petition included a four-page list of alleged acts of harassment. Gonzales was represented by counsel at the time and requested $ 2,500 in attorney fees.
A lengthy hearing was held on April 24, 2006. Orey was represented by an attorney identified in the record as "Mr. LaCilento." In addition to the instant case, the hearing was also addressing other related matters. The court identified "six or eight of them." LaCilento stated that he represented both Orey and a party named Hoogland on all matters, whether they were petitioner or respondent. Another party, Mendoza, appeared in propria persona.
At the conclusion of the hearing, the court granted Gonzalezs request for a restraining order. The court found Gonzales to be "the most credible witness thats been in this courtroom for quite some time." The court also found that awarding Gonzalez her attorney fees was proper and directed counsel to file the appropriate paperwork. Gonzalez filed a memorandum of costs seeking $1860 in costs and attorney fees on April 26. The court received no opposition and granted the costs award on June 7.
II
DISCUSSION
Violation of Sixth Amendment Right to Counsel
Oreys first argument and principal argument is that the performance of her attorney was so deficient as to violate the right to counsel guaranteed by the Sixth Amendment of the United States Constitution. This argument, however, is misplaced. "As a general rule, `. . . there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation. [Citations.] [Citation.]" (People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942.)
There is no indication that Oreys physical liberty was in jeopardy in this civil case, and therefore, the exception to the general rule does not apply. As there is no constitutional right to counsel in civil cases, an attorneys performance, no matter how deficient the client perceives it to be, cannot be the basis for reversal on due process grounds.
"Judicial Bias" and "Judicial Error"
Orey claims she was subject to "judicial bias" and "judicial error" because the trial court ruled on some of the pending petitions (which were heard together in a single hearing) before the conclusion of the hearing. Orey states this created "bias and partiality." Apparently, the trial court ruled on Orey and Hooglands request for a restraining order against another party, Mendoza, and denied the request for the injunctions based on insufficient evidence. The court found a lack of clear and convincing evidence necessary to issue an injunction.
The trial court was acting as the trier of fact. The cases were being heard together. If the court had reached conclusions about the credibility of certain witness testimony at that point in the hearing, those conclusions would exist whether the court had issued its ruling at that time or had waited until the end of the hearing. The standard for judicial bias is whether a reasonable person would doubt the courts impartiality. (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 262.) Reaching conclusions about the credibility of witnesses is part of the trial courts proper role when it is acting as the trier of fact. By finding certain witnesses incredible after their testimony, the court did not demonstrate a lack of impartiality — it was merely exercising its judgment, as was entirely proper.
Oreys next assertion of error is that the trial court "ruled on a case that did not exist. Judicial error occurred when the judge denied restraining orders by Mr. Alberto Gonzalez against Orey and Hoogland. There were no cases by Mr. Gonzalez against Orey and Hoogland. This judicial error also creates partiality and bias, as it does not take into account the fact that only Mrs. Linda Gonzalez brought restraining orders and her husbands conduct was at issue and should have been considered when the restraining orders were granted against Orey and Hoogland in Mrs. Gonzalez [sic] cases."
We first note that no objection to the courts ruling or explanation of its ruling was made below, and therefore it is not properly raised on appeal. (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.) Indeed, we cannot tell from the record before us whether Oreys contention is even correct. Assuming that it is, for the sake of argument, she claims the error resulted in "bias" against her. We find this assertion unsupported. The trial court questioned Mr. Gonzalezs credibility and found his testimony problematic. This hardly demonstrates bias or partiality. To the extent Mr. Gonzalezs testimony was relevant to Gonzalezs application for a restraining order against Orey, there is no indication that the court did not properly consider it in that context. The burden is on Orey, as the appellant, to demonstrate error and resulting injury, and she has failed to do so. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.)
Fees and Costs
Orey next argues that the courts award of $1860 in fees and costs was unreasonable. The only documentation provided in the record is the summary memorandum of costs, which lists $ 60 for service of process and $1800 for attorney fees. This was filed on April 26. The record also includes a June 7 memorandum to the trial court, which apparently recommended denying the costs without prejudice because no factual basis had been provided for the attorney fees request. The court crossed out this recommendation, wrote "granted" and signed the memorandum. Apparently, Orey never filed a motion to tax costs.
Even assuming that Orey can properly raise this issue on appeal without filing a motion to tax costs below, we do not find the costs and fees unreasonable. Orey states that the $60 for service of process was improper, because the petition was served on her without cost by the sheriffs department. It is unclear, however, whether this was the only service of process that was performed in this case. This is precisely the kind of factual issue best handled by the trial court in a motion to tax costs, and in any event, Orey has failed to demonstrate error.
We review attorney fee awards for abuse of discretion. (Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156.) Orey complains that the crossed-out notation on the June 7 memo, which apparently recommended denying the requests for costs for failure to provide the factual basis for the attorney fees, demonstrates that attorney fees should have been denied because Gonzalez never provided such information. This is irrelevant, as the court did not find additional information necessary, but crossed out the recommendation and granted the motion. It is not difficult to see why. The parties appeared in court for a hearing that resulted in a 300 page transcript. Based on the attorneys hearing and preparation time, even without further information, we cannot say that $1800 is an unreasonable amount of attorney fees. We find no abuse of discretion.
III
DISPOSITION
The judgment is affirmed. In the interests of justice, each party shall bear their own costs on appeal.
We Concur:
RYLAARSDAM, Acting P. J.
ARONSON, J. --------------- Notes: Apparently, there was another case, which may be related to the facts here, pending at the time, but the details of that case are not in the record.