Opinion
H050685
07-08-2024
MARIA G., Petitioner and Respondent, v. PATRICK M., Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 18CH008214
LIE, J.In 2018, Maria G. obtained a three-year civil harassment restraining order protecting her and her family from their neighbor, Patrick M. This court affirmed the order in Maria G. v. Patrick M. (Apr. 30, 2021, H046411) [nonpub. opn.]. On Maria's timely application, the trial court renewed the order for an additional three years, at a noticed hearing from which Patrick, a self-represented lawyer, was absent. Patrick appeals from the renewal order, arguing, among other things, that (1) renewal of the order was contrary to Code of Civil Procedure section 527.6; (2) he was denied the right to be heard, and (3) the trial judge's relationship to a member of the Maria G. v. Patrick M. panel biased the judge against him. Patrick also challenges the order granting Maria attorney fees as the prevailing party.
To protect their personal privacy interests in keeping with California Rule of Court, rule 8.90(b)(5), we refer to both parties by their first names and last initials in the first instance and thereafter by first name only for simplicity.
Undesignated statutory references are to the Code of Civil Procedure.
We affirm.
I. BACKGROUND
A. Maria's Request to Renew Civil Harassment Restraining Order
Maria obtained a civil harassment restraining order against Patrick in 2018 and sought to renew the order in 2021. Upon filing her renewal request, Maria did not initially succeed in personally serving Patrick with the notice of the hearing to renew the restraining order. But Patrick, licensed to practice law in California, learned of Maria's renewal request through what he called "unofficial [c]ourt records" and moved to dismiss her renewal application. In March 2022, both parties appeared in court, Patrick accepted service of the request, and the court scheduled Patrick's dismissal motion and Maria's renewal request to be heard together in May.
Dates with undesignated years are in 2022.
B. The May Trial and Renewal Order
On the May date, Maria appeared with counsel before the Honorable Socrates P. Manoukian. There being no appearance by Patrick nor any motion for a continuance with Patrick's recent filings, the court took Patrick's motion to dismiss off calendar. According to minutes of the unreported trial on the renewal request, Maria testified, and the trial court took judicial notice of and "reviewed the unpublished Court of Appeal's decision in case [No.] H046411." Finding "based on papers submitted by Defense and testimony of Plaintiff . . . sufficient evidence for . . . extension of the Civil Harassment Restraining Order," the trial court granted Maria's renewal request, extending the restraining order for another three years.
C. Posttrial Motions
1. Patrick's Motion to Vacate and to Disqualify Trial Judge
Two weeks after the hearing, Patrick moved to "vacate and set a new trial date," citing "irregularity in [the] proceedings" (capitalization and boldface omitted) that he contended denied him the fair trial to which he was entitled under sections 527.6 and 659 and the state and federal Constitutions. The irregularities Patrick identified were the trial court's decision to proceed to trial in his absence and its consideration of this court's prior appellate decision. Patrick further asserted that the trial judge's spousal relationship with a member of the appellate panel that had affirmed the original restraining order independently required the judge's disqualification, an irregularity only compounded by the trial court's reliance on the appellate opinion. Patrick also faulted Maria's attorney for failing to inform the court of the reason for Patrick's absence. Patrick did not seek relief under section 473 but argued, "It was a surprise that [r]espondent had an accident and was hospitalized. Ordinary prudence could not have guarded against such a development." (See § 657, subd. 3 [identifying "Accident or surprise, which ordinary prudence could not have guarded against" as a basis for a new trial].)
In a concurrently filed declaration supporting the motion, Patrick stated he had been hospitalized and required emergency surgery a few days before the hearing and was consequently unable to attend court. Patrick referred in his declaration to an attached "[d]eclaration letter" from El Camino Hospital as proof of his hospitalization, but no letter was attached to the declaration as filed.
Patrick further represented in his declaration that he had attempted shortly before trial to notify both court and counsel of his inability to appear. Specifically, Patrick left a voicemail for the "Superior Court Clerk at the number given by the Clerk's Office" on the eve of trial, "stat[ing] the details about his hospitalization and inability to physically get to the court hearing." On the day of trial, he was unable to leave a voicemail at the "Superior Court clerk phone number listed on the Court's webpage for Department 20" because the mailbox was full. Patrick left a voicemail for Maria's attorney, Dmitry Stadlin, stating he was "in the hospital and unable to physically get to the court hearing." He called the same number for Mr. Stadlin a few minutes later, spoke with "Roxy," and conveyed the same message to her.
Patrick also moved to disqualify Judge Manoukian under section 170.1, citing Judge Manoukian's relationship with the Honorable Patricia Bamattre-Manoukian, a member of the panel that decided Patrick's prior appeal.
Patrick incorrectly asserts that Justice Bamattre-Manoukian authored the opinion in the prior appeal, when she was a member of the panel.
In July, Patrick filed a stand-alone document titled "supplemental declaration . . . [to] motion to vacate," (capitalization and boldface omitted) which included a letter from El Camino Hospital, reporting Patrick's hospitalization from April 28 to May 3, and a letter from a skilled nursing facility, reporting Patrick's inpatient status from May 3 to May 15.
Later in July, Judge Manoukian struck the disqualification motion in an order disputing some of Patrick's factual allegations. Patrick petitioned for a writ of mandate challenging the order striking his disqualification motion, which this court summarily denied.
2. Maria's Motion for Attorney Fees
In September, Maria filed a motion for attorney fees. Patrick then filed a "Motion for Monetary Sanctions, Disgorgement of Lawyer's Fees Paid, and Opposition to [Maria's] Motion for Fees." (Some capitalization and boldface omitted.) The trial court heard arguments on both motions in October, along with Patrick's motion to vacate.
D. Order Denying Patrick's Motions and Granting Maria's Motion for Attorney Fees
In October, the parties appeared on their respective posttrial motions. After hearing argument in response to its tentative decisions in Maria's favor, the trial court denied Patrick's motion to vacate, which the court construed as a timely motion for a new trial under section 659, subdivision (a)(2). Adopting its written tentative decision, the court declined to credit Patrick's assertion that he had notified court and counsel of his absence before trial, observing that on the day of trial, "No reason for [Patrick's] nonappearance was ever conveyed to this Department." The trial court also questioned Patrick's account of his incapacitation and denied receiving any corroboration of Patrick's hospitalization: "At the prior hearings on this motion, [Patrick] referred to documentation of his hospitalization. The Court file contains none, and neither this Court nor counsel for [Maria has] received them, even at this late date." The court ruled that Patrick was not entitled to have the renewal order vacated based on the trial judge's purported conflict of interest, noting that the court had already stricken Patrick's disqualification motion.
The trial court granted Maria's motion for costs and attorney fees under section 527.6, subdivision (s). Although Patrick opposed Maria's fees motion on the basis that the fees were being paid by a third party (a purported political opponent of Patrick's), the court noted that Patrick had not disputed the amount of fees sought. Accordingly, the court awarded Maria prevailing party costs and attorney fees in the amount of $11,214. The court denied Patrick's motion for sanctions.
Patrick timely appealed within 60 days of notice of entry of judgment. (See Cal. Rules of Court, rule 8.104(b).)
II. DISCUSSION
On appeal, Patrick challenges the trial court's May order renewing Maria's civil harassment restraining order, and the October order awarding Maria attorney fees. As to the May renewal order, Patrick argues that Maria's failure to timely serve him, the trial court's failure to afford him a timely merits hearing, and the insufficiency of the evidence at trial require "revers[al] without remand." He also contends that the May trial in absentia violated both his due process right to be heard and his right to reasonable accommodation under the Americans with Disabilities Act (ADA). Patrick further argues that the trial judge should have been disqualified from hearing the case under section 170.1 and exhibited actual bias against him at trial and beyond. Finally, Patrick challenges the renewal order on the theory that section 527.6 obliged Maria to proceed to trial no later than August 2021 and that the evidence at the May trial failed to establish a likelihood of great or irreparable future harm.
As for the October order, Patrick contends that the court erred in awarding Maria attorney fees, both because Maria did not pay the fees herself and because the fees awarded were excessive. None of his claims withstand scrutiny.
A. Renewal of the Civil Harassment Restraining Order
Section 527.6 authorizes a person who has suffered harassment to seek both "a temporary restraining order [TRO] and an order after hearing" prohibiting such conduct. (§ 527.6, subds. (a)(1), (b)(3).) Whether or not the trial court issues a pre-hearing TRO, upon "clear and convincing evidence" at the hearing "that unlawful harassment exists," the court "shall issue" an order after hearing prohibiting the harassment. (§ 527.6, subd. (i); Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 88-89 (Cooper).) Although the maximum duration of a restraining order after hearing is limited to five years, the order may be renewed on a party's request for up to five more years "without a showing of any further harassment since the issuance of the original order." (§ 527.6, subd. (j)(1).) But to qualify for renewal without a showing of further harassment, the request must be made "within the three months before the order expires." (Ibid.)
Patrick challenges the renewal order based on his interpretation of section 527.6's procedural requirements and the sufficiency of Maria's evidence on the merits. But his legal theory is flawed, and the selective record he has supplied does not meet his burden of establishing that the evidence before the trial court was insufficient.
1. Notice and Opportunity to be Heard Ex Parte
Patrick argues that the renewal order is invalid because Maria violated section 527.6, subdivision (m)(1) by failing to serve him with notice of her renewal request and ex parte application for a temporary restraining order pending hearing. Patrick does not dispute he was personally served with the renewal request as of March 2022. Nevertheless, likening Maria's filing of her renewal request to an ex parte application for a temporary restraining order, he asserts an entitlement under section 527.6, subdivision (m)(1) to service of Maria's request at the time of its filing, on the theory that he had a right to be heard on scheduling and on any interim extensions of the restraining order; he also asserts a right to a trial on renewal of the restraining order within 25 days of filing, under subdivisions (f) and (g). Patrick contends that, absent such notice, the trial court was obliged to grant his motion to dismiss the renewal request, and that irrespective of notice, the trial court's failure to hear the merits within 25 days of Maria's request compelled dismissal.
Patrick misunderstands the statutory scheme. Section 527.6, subdivision (m)(1) by its plain terms requires service of a petition at least five days before the eventual "hearing of the petition," not immediately on filing. And he offers no authority holding that the extension-pending hearing on a request for renewal-of a restraining order after hearing issued on clear and convincing evidence is governed by section 527.6's provisions for temporary restraining orders (TROs) issued on ex parte application." 'When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'" (Wozniak v. YouTube, LLC (2024) 100 Cal.App.5th 893, 918, fn. 7.) But even assuming section 527.6's provisions for TROs govern a renewal request under subdivision (j), the statute authorizes a trial court to issue an initial "temporary restraining order . . . with or without notice." (§ 527.6, subd. (d), italics added; see also D.Z. v. L.B. (2022) 79 Cal.App.5th 625, 635 [" 'an initial temporary restraining order may be obtained ex parte on affidavit' "].) For all these reasons, Patrick's challenge to the renewal order for lack of notice fails.
2. Time Limit for Hearing
Nor is Patrick entitled to invalidation of the order because the renewal hearing took place well beyond section 527.6, subdivision (g)'s deadline for hearing a petition for a civil harassment restraining order within 21 to 25 days "from the date that a petition for a temporary order is granted or denied." (§ 527.6, subd. (g).)
The record does not establish that Maria, in her renewal request, "petition[ed] for a temporary [restraining] order," only that she met the time limit of section 527.6, subdivision (j) by filing her request "within the three months before the [restraining order after hearing] expires." (§ 527.6, subds. (g), (j)(1).) But even assuming section 527.6's provisions for temporary restraining orders issued ex parte upon affidavit govern requests for renewal of orders issued after a noticed hearing, "[u]nless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory." (People v. Allen (2007) 42 Cal.4th 91, 102.) And when "a provision is mandatory, cases have held that the failure to comply with its requirements does not necessarily mean a court loses fundamental jurisdiction resulting in 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.'" (Id. at p. 101, fn. 5; see also Arbaugh v. Y &H Corp. (2006) 546 U.S. 500, 510 ["time prescriptions, however emphatic, 'are not properly typed "jurisdictional"' "].)
Nothing in section 527.6 suggests that the 21- or 25-day limit on the duration of the initial temporary restraining orders is jurisdictional. Indeed, section 527.6 itself contemplates a continuance of the hearing on the petition, providing that "[t]he respondent shall be entitled, as a matter of course, to one continuance, for a reasonable period"-a continuance apparently not limited to the initial 21 or 25 days under subdivisions (f) and (g). (See § 527.6, subd. (o).) And beyond the respondent's entitlement to a continuance as a matter of right, "[e]ither party may request a continuance of the hearing, which the court shall grant on a showing of good cause.... The court may also grant a continuance on its own motion." (§ 527.6, subd. (p)(1).)
Thus, even if the trial court erred in setting the hearing on Maria's renewal request beyond the natural expiration of the three-year order issued after hearing in 2018 and more than 25 days "from the date that a petition for a temporary order is granted or denied" under section 527.6, subdivision (g), we decline to conclude that the error voided the renewal order eventually issued.
3. Sufficiency of Evidence
Patrick next argues that insufficient evidence supported renewal of the restraining order, in that Maria failed to present the "clear and convincing evidence of unlawful harassment" that section 527.6, subdivision (i) requires. But "[i]n deciding to renew a restraining order under section 527.6, the trial court may rely solely on the record in the original case," and the order may be renewed" 'without a showing of any further harassment since the issuance of the original order.'" (Cooper, supra, 242 Cal.App.4th at pp. 90-91.) "Indeed, it would be 'anomalous to require the protected party to prove further [harassment] occurred in order to justify renewal of [the] original order.'" (Id. at p. 91.) All that is required is "a reasonable probability that the defendant's wrongful acts would be repeated in the future." (Id. at p. 90.) We review for abuse of discretion a trial court's decision to renew a civil harassment restraining order. (Id. at p. 89.) The limited record shows no abuse of discretion under section 527.6.
"Appealed judgments and orders are presumed correct, and error must be affirmatively shown." (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall), citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "Without a record, either by transcript or settled statement, a reviewing court must make all presumptions in favor of the validity of the judgment." (Randall, at p. 935.) Ultimately, it is Patrick's obligation, as appellant, "to provide an adequate record to demonstrate error as well as our obligation to presume that the decision of the trial court is correct absent a showing of error on the record." (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.) "In many cases involving the . . . abuse of discretion standard of review . . . a reporter's transcript or an agreed or settled statement of the proceedings will be indispensable." (Ibid.) This is one of those cases.
We recognize the challenge the absence of a court reporter represents for an appellant, but this does not relieve Patrick of his "burden to provide an adequate record" on appeal, as he could have elected to proceed by settled statement. (See Randall, supra, 2 Cal.App.5th at p. 932.) "Where . . . no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters." (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics omitted (Estate of Fain).) As applied here, "it is presumed that the unreported trial testimony would demonstrate the absence of error." (Ibid.; see id. at p. 994 [presuming sufficiency of evidence to support trial court's unexplained fee calculation].)
Despite the practical challenges of settling a statement of a hearing he missed, Patrick could have tested his theory that Maria testified at the May trial only about conduct predating the original renewal order by proposing a settled statement to that effect.
Nor do we accept Patrick's invitation to treat the absence of a court reporter from the May renewal hearing as a violation of his due process rights. Noting that proceedings in November 2021 and January 2022 (before a different judicial officer) had been reported, Patrick argues, "No notification or reason was provided for removing the court reporter for the May . . . hearing." But at least since January 1, 2019, the Santa Clara County Superior Court has warned that "[a] party must make arrangements for a reporter in advance of the proceeding if the party wishes the proceedings to be reported." (Super. Ct. Santa Clara County, Local Rules, Gen. Ct. &Admin. Rules, rule 7B, eff. Jan. 1, 2019.) And Patrick, who did not appear at the November 2021 or January 2022 hearings where a reporter was present, makes no claim that his appearance in March gave him any reason to believe the May hearing would be reported. To the extent Patrick insists that the proceedings at the May renewal hearing supported his contentions on appeal, it was incumbent upon him to initiate settlement of a statement.
Compounding the omission of a record of the oral proceedings, Patrick has omitted from his designation of the record Maria's original restraining order request and her request for renewal of the restraining order, both of which would have included her declaration under penalty of perjury explaining her reasons for requesting injunctive relief. (See Judicial Council Forms, mandatory forms CH-100 ["Request for Civil Harassment Restraining Orders"] &CH-700 ["Request to Renew Restraining Order"].) It is well established that Maria's declarations would be admissible in hearings under section 527.6. (See Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728-729; see also Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550, 557 [holding that declarations are admissible in hearing on workplace violence restraining orders under § 527.8]; San Diego Police Dept. v. Geoffrey S. (2022) 86 Cal.App.5th 550, 569 [extending Kaiser to gun violence restraining orders under Pen. Code, § 18175].)
Thus, in reviewing Patrick's challenge to the sufficiency of the evidence, we have only the minute order indicating that Maria testified and the trial court's subsequent orders relating to the granting of the renewal. Neither discloses any inadequacy in the substance of Maria's testimony or declaration. Accordingly, we presume, as we must, that sufficient evidence supported the order. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
B. Denial of Continuance
Whereas Patrick's claim under section 527.6 was that the May trial was too late, he also contends that the trial should have been continued on the court's own motion, in view of his inability to appear, and that failure to so continue the trial denied him due process and his rights under the Americans with Disabilities Act. We have no reason to question Patrick's posttrial explanation of the reason for his nonappearance at the May trial: Patrick supplied the court with documentation of those reasons as exhibits to a supporting declaration filed months before the court denied his motion and faulted him for purportedly failing to provide that same documentation. But on appeal, Patrick sets himself a more daunting task than establishing the trial court erred by failing to consider that documentation in denying his new trial motion. Instead, he challenges the renewal order itself rather than the denial of his posttrial motion under section 659. Specifically, he asserts that the trial judge "denied [Patrick] a fair hearing" on the day of trial by proceeding "while knowing that [Patrick] was in the hospital and was medically prevented from attending." His theory appears to be either that the voicemail message to the clerk's office constituted an actionable motion for a continuance or that the fact and timing of the message establishes the trial judge's actual or constructive knowledge of his circumstances and request, entitling Patrick to a day-of-trial continuance. Patrick's theory is factually unsupported and legally unsound.
To the extent the trial court questioned Patrick's diligence in "wait[ing] until [May 18] to bring this matter to the attention of the Court," we note that Patrick's documentation indicates he was discharged from inpatient medical treatment only three days before he filed his section 659 motion. (Cf. Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 [holding that trial court abused its discretion in denying continuance to a party whose attorney was dying of cancer].)
The record reflects that the trial judge at the time set for trial knew nothing of the reason for Patrick's nonappearance, let alone any request for a continuance. Indeed, Patrick's allegation of opposing counsel's lack of candor with the trial court appears to concede as much. Patrick's declaration describing a deputy clerk's confirmation, posttrial, that his pretrial message was in her own voicemail, likewise gives no reason to doubt the trial court's factual finding that "[n]o reason for [r]espondent's nonappearance was ever conveyed to this Department." (Italics added.)
Patrick has supplied no authority that would impute to a trial judge constructive knowledge of a voicemail message to the clerk's office, and we are aware of none. Nor are we aware of authority that would require the judge, without that knowledge, to presume from a party's nonappearance that accommodation is required under the Americans with Disabilities Act. Rather, when an appellant asserts error in a court's decision to proceed with litigation rather than continue the proceedings, we assess the claim based on the particular circumstances of the case at the time the court allows the trial to proceed," 'particularly in the reasons presented to the trial judge at the time.'" (People v. Howard (1992) 1 Cal.4th 1132, 1171-1172, disapproved on other grounds in People v. Rhoades (2019) 8 Cal.5th 393, 425, fn. 12, quoting Ungar v. Sarafite (1964) 376 U.S. 575, 589, 591.)
Because Patrick has not shown that the trial court knew of his medical incapacitation at the time it decided to proceed to trial, he cannot show that the trial court denied him an accommodation based on the incapacitation. We note that Patrick makes no claim that any of his efforts to contact court staff were directed to the court's ADA coordinator.
Patrick having fixed the decision to proceed in his absence as the violation of his right to be heard, it is incumbent on him to establish the circumstances known to the court at that time. Having failed to establish any, he has not affirmatively shown error in the decision to proceed.
C. Alleged Disqualification and Bias of the Trial Judge
Having been unable to meaningfully participate at the May trial, Patrick contends that the resulting order must nonetheless be reversed based on his statutory motion to disqualify the trial judge and the constitutional dimension of the judge's alleged actual bias. To the extent Patrick seeks to relitigate his claim that the trial judge should have been disqualified under section 170.1, subdivision (a)(6), the trial court's striking of his disqualification motion "is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal...." (§ 170.3, subd. (d); People v. Panah (2005) 35 Cal.4th 395, 444 (Panah); Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 671.) This court having denied Patrick's petition for review of the order striking his disqualification motion, Patrick has already "received the appellate review of his statutory claim to which he was entitled." (Panah, at p. 445.) The unavailability of appellate review of Patrick's section 170.1 claim does not foreclose his claim that he was denied his due process right to an impartial judge (Panah, at p. 445, fn. 16), but we find no indication of actual bias.
A disqualification motion must be filed "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification" (§ 170.3, subd. (c)(1)) and untimely filing "constitutes forfeiture or an implied waiver of the disqualification." (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337). The parties were notified in January 2022-nearly nine months after this court, including Justice Bamattre-Manoukian, decided Patrick's appeal from the 2018 restraining order-that the matter was assigned to Judge Manoukian. To the extent their assignment for trial was unknown until a few days before the May hearing, Patrick filed his disqualification motion more than six weeks after the hearing on the renewal, and after having filed a prior intervening motion to vacate.
Although the appearance of bias is "an explicit ground for judicial disqualification in California's statutory scheme," a party asserting a due process claim for a judge's failure to disqualify must "focus[] 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 [United States Supreme Court] has focused on those circumstances where, even if actual bias is not demonstrated, the probability of bias on the part of a judge is so great as to become 'constitutionally intolerable.' [Citation.] The standard is an objective one." (People v. Freeman (2010) 47 Cal.4th 993, 1001, quoting Caperton v. A. T. Massey Coal Co., Inc. (2009) 556 U.S. 868, 882.) But "the due process clause should not be routinely invoked as a ground for judicial disqualification. Rather, it is the exceptional case presenting extreme facts where a due process violation will be found. [Citation.] Less extreme cases-including those that involve the mere appearance, but not the probability, of bias-should be resolved under more expansive disqualification statutes and codes of judicial conduct." (Freeman, at p. 1005.) "[A]dverse or erroneous rulings, especially those that are subject to review, do not establish a charge of judicial bias." (People v. Guerra (2006) 37 Cal.4th 1067, 1112, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
1. Proceeding to Trial in Patrick's Absence
At the heart of Patrick's challenge is that the trial court abused its discretion by proceeding to trial in his absence, even though he had attempted to notify both court and counsel of his inability to attend court due to his hospitalization. Patrick contends that in light of his incapacitation, "[t]he best course of action" would have been to continue the hearing date, and the trial court's failure to do so reflected the trial judge's bias against him.
We see no hint of bias in the trial judge's decision to proceed in Patrick's absence, given what little was known to the judge at that time." '[T]he right of a litigant to be present to defend or prosecute an action is not absolute,'" and" 'the mere absence of a party furnishes no ground for a continuance, unless it is made to appear that such absence is unavoidable and that the party will suffer damage in his interests if he is unable personally to attend the trial.'" (Thorpe v. Thorpe (1946) 75 Cal.App.2d 605, 609, italics added.) As we have explained, Patrick has not shown the court was aware at the time of trial of the reason for his absence. Because Patrick has not shown that the court proceeded to trial with knowledge of Patrick's hospitalization, we reject his supposition that the court's conduct reflected bias against him.
2. Review of Prior Appellate Opinion
Patrick next argues that the trial court's reliance on the prior appellate opinion created bias. Patrick's argument is premised on the trial court's May 4 minute order: "The court reviewed the unpublished Court of Appeal's decision in [the prior appeal] and [took] [j]udicial [n]otice of the decision." Patrick argues that the court relied on the appellate opinion as "evidence" in renewing the restraining order and thus treated Justice Bamattre-Manoukian "a close family member . . . as an unsworn witness," raising at least an appearance of impropriety. As we have explained, however, we have no authority to review statutory disqualifications relating to an asserted appearance of impropriety on direct appeal. (See Panah, supra, 35 Cal.4th at p. 444.) Nor do we have a basis to construe the limited consideration of our appellate opinion as suggesting bias, given the legitimate and limited basis for judicial notice of the opinion.
An appellate court does not engage in factfinding, and judicial notice of an appellate court opinion aids only in establishing the finality of the original order. Under section 527.6, "the trial court's decision granting the initial restraining order 'necessarily implies that the trial court found that [the respondent] knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed [the petitioner], and that [the petitioner] actually suffered substantial emotional distress.' [Citation.] Likewise, the decision necessarily implies that the court found that [the petitioner] met the clear and convincing standard and that a reasonable person in Cooper's situation would have suffered substantial emotional distress. (§ 527.6, subds. (b)(3) &(i).) At the point where a protected party seeks a renewal of a restraining order and the restrained party . . . has lost on appeal, the restrained party cannot challenge the findings and evidence underlying that original order nor the validity of that order." (Cooper, supra, 242 Cal.App.4th at p. 92.)
Any judge hearing Maria's renewal request, then, would have been bound by the trial court's 2018 findings, without any personal relationship with any appellate justices who affirmed the restraining order on deferential review for substantial evidence. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) What remained for the trial judge here was to determine whether, in the context of those prior findings, there was "a reasonable probability that [Patrick's] wrongful acts would be repeated in the future," such that the court should exercise its discretion to renew the restraining order for a specified term. (Cooper, at p. 90.) Accordingly, the minutes of the trial reflect that the trial court granted Maria's renewal request based on her testimony and not the appellate opinion: "The Court believes, based on papers submitted by Defense and testimony of Plaintiff, that there is sufficient evidence to granting an extension of the Civil Harassment Restraining Order."
As we will explain, we likewise find no error, let alone evidence of bias, in the trial court's order awarding Maria attorney fees. Having considered Patrick's claims, we do not view the assumed appearance of impropriety from the trial judge's relationship with an appellate justice to rise to a probability of actual bias that would offend due process.
D. Order Granting Attorney Fees
Finally, Patrick argues the trial court abused its discretion in awarding costs and attorney fees to Maria. Maria sought attorney fees under section 527.6, subdivision (s), which authorizes the trial court to award prevailing party attorney fees in the court's discretion. Reviewing the fee award for abuse of discretion, we find no error. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.)
We find inapt Patrick's reliance on sections 659 and 1008 to argue that the attorney fees motion was untimely: Maria sought neither a new trial nor reconsideration, so neither statute offers any guidance. Maria filed her attorney fees motion before the court adopted its tentative ruling denying Patrick's motion to vacate, and nothing in section 527.6's provision for prevailing party fees suggests this was too late.
Patrick next argues the Supreme Court's decision in Gray v. Don Miller &Associates, Inc. (1984) 35 Cal.3d 498, precluded the trial court from awarding Maria attorney fees. But Gray merely recited "the American rule"-that "as a general proposition each party must pay his own attorney fees"-before acknowledging an exception to this general rule where "a statute or the agreement of the parties provides otherwise." (Id. at p. 504.) Section 527.6, subdivision (s) provides otherwise.
Patrick next argues the trial court abused its discretion by awarding attorney fees to Maria in that Maria's attorney fees were being paid by a "long-time political opponent of" Patrick's to undermine Patrick's work on the Sunnyvale city council. The trial court deemed it "inconsequential whether fees claimed by counsel for [Maria] were paid by [Maria], or by a third party, or not at all."
We discern no error. Patrick has provided no authority, and we have found none, to support the proposition that a prevailing party must personally have paid the attorney fees incurred to merit a fee award. Rather, "in cases involving a variety of statutory fee-shifting provisions" like section 527.6, subdivision (s), "California courts have routinely awarded fees to compensate for legal work performed on behalf of a party pursuant to an attorney-client relationship, although the party did not have a personal obligation to pay for such services out of his or her own assets." (Lolley v. Campbell (2002) 28 Cal.4th 367, 373.) Moreover, the limited record contains no evidence that would support Patrick's claim that his political nemesis was underwriting Maria's litigation, let alone that the litigation was for political purposes. The trial court declined to credit Patrick's bare assertion of the claim, and we do not reassess that credibility determination on appeal.
Finally, Patrick argues the court's award of $11,214 was "unreasonable, inflated and unjustified." In support, Patrick sets forth in his opening brief an extensive summary of what we infer are some of the fees Maria requested in her motion, alongside Patrick's commentary as to why the requests are unreasonable or unwarranted. But it does not appear from the motion for sanctions he filed instead of an opposition to Maria's fees motion (or elsewhere in the record) that he raised any of these points in the trial court, beyond disputing Maria's claim to any award of fees, however quantified. He has therefore forfeited this claim. (Cable Connection, Inc. v DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12 [noting that to permit a party on appeal to" 'adopt a new and different theory on appeal . . . would not only be unfair to the trial court, but manifestly unjust to the opposing litigant' "].)
Even if he preserved this challenge to the fee award in the trial court, the record Patrick has designated is once again inadequate to meet his burden of affirmatively demonstrating an abuse of discretion. He has omitted Maria's fees motion. He has also omitted her attorney's supporting declaration, which typically sets forth counsel's reasonable hourly rate, the number of hours worked, and the tasks performed. (Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237-238 (Cruz).) Maria represents in her appellate brief that as part of her fees motion, she "submitted detailed invoices that listed all activities performed in this matter, the attorney's hourly rate, his paralegal's hourly rate, the hours charged for each task, and the actual amount charged to [Maria]," and that her attorney "submitted a declaration which listed the hours he spent prosecuting the [civil harassment restraining order] renewal and [successfully defending] additional . . . motions filed by the Appellant." The trial court's order granting Maria's fees motion also referenced "[a] verified bill," as well as "[a] declaration attesting to the accuracy of the fee bill." Patrick elected not to designate any of these documents for inclusion in the record on appeal. Nor did he provide a record of the oral proceedings at the hearing on the fees motion. As the Supreme Court has held, without a reporter's transcript, Patrick could have proceeded by a settled statement of the proceeding, but having "failed to furnish an adequate record of the attorney fee proceedings, [his] claim must be resolved against [him]." (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Without an adequate record, Patrick cannot show that the trial court's fees award was" 'clearly wrong' "-that is," 'manifestly excessive in the circumstances.'" (Cruz, supra, 57 Cal.App.5th at p. 237.) We accordingly affirm the award.
III. DISPOSITION
The trial court's May 4, 2022 order renewing the civil harassment restraining order, and October 4, 2022 order granting Maria's motion for costs and attorney fees, are affirmed. In the interest of justice, each party to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278.)
WE CONCUR: GROVER, ACTING P. J., BROMBERG, J.