0 2 / 2 5 / 2 0 1 0 at 08: 30 am in Departm ent 75, Carol Boas Goodson, Presiding
MOTI ON - ATTORNEY FEES - Grant ed
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Court Order - Com plet ed
0 1 / 2 2 / 2 0 1 0 at 08: 30 am in Departm ent 75, Carol Boas Goodson, Presiding
Below is the amicus brief.
RADHA BHARADWAJ v. WILLIAM MEARS
RADHA BHARADWAJ, Plaintiff and Appellant, v. WILLIAM MEARS, Defendant and Respondent. B222991-- July 27, 2011Filed opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
introduction
Plaintiff and appellant Radha Bharadwaj appeals from a judgment of the superior court denying her petition under Code of Civil Procedure section 527.6
1 for an injunction preventing harassment against her by respondent William Mears. She further appeals the
grant of
attorney fees to Mears. Bharadwaj contends that during the hearing conducted on her section 527.6 petition, the trial judge exhibited bias against her, in part based on her ethnicity, in violation of her constitutional due process right to a fair hearing. Bharadwaj further argues that the trial judge engaged in acts of judicial misconduct and committed errors of law that deprived her of a fair trial. We do not reach the question whether Bharadwaj's constitutional due process rights were violated because we conclude that a new trial is warranted under section 657 due to irregularities in the section 527.6 hearing and the court's erroneous exclusion of evidence. Because we vacate the judgment, the attorney fees award in favor of Mears is necessarily vacated as well. We further exercise our discretion to remand the matter for a hearing in front of a new judge.
factual and procedural background
Bharadwaj and Mears are next-door neighbors in a condominium project with two detached units; Bharadwaj and her husband live in the rear unit, and Mears lives with his girlfriend Odette Leonelli in the front unit. Bharadwaj and Leonelli were once
friends, but beginning in 2003 their relationship deteriorated over a number of property disputes, such as Leonelli's barking dog, overgrowth of foliage from Leonelli's property onto Bharadwaj's property, parking issues, and driveway access. Mears apparently entered the picture in 2007.
In March 2009, Bharadwaj sought and was granted a temporary restraining order (TRO) against Mears based on an affidavit she submitted documenting a number of alleged incidents of harassment beginning in 2007. As required by section 527.6, a hearing was set for several weeks after the date the TRO was issued, the purpose of which was to determine whether a permanent injunction should be issued. At the outset of the hearing on April 10, 2009, the trial court initially assigned to the case suggested that the parties engage in mediation of their dispute. The parties agreed to a continuance of the hearing to July 23, 2009, while they engaged in mediation. The parties stipulated to a stay in enforcement of the TRO conditioned on all parties adhering to the terms of the TRO “in a reciprocal manner,” even though the TRO was directed only at Mears.
2 The parties subsequently stipulated to several further continuances of the hearing, with the terms of the TRO as ordered by the court on April 10, 2009 remaining in full force and effect, pending the evidentiary hearing.
The section 527.6 hearing ultimately took place on January 22, 2010, before a different judge. Bharadwaj's counsel called two witnesses – Mears and Bharadwaj – and attempted to call five other witnesses but the court excluded the witnesses' testimony on the grounds that it was either speculative, repetitive, or irrelevant. The court further ruled that incidents prior to 2009 were irrelevant for purposes of determining whether a permanent injunction should issue. The court denied the petition for an injunction.
Bharadwaj filed a “motion for a new trial and/or in the alternative for reconsideration” alleging that she “was not given a fair opportunity to present her case,” and that she and her counsel “had to fight through a one-sided onslaught of hostility, impenetrable skepticism, sarcasm, mockery, insult and interruption from the court.” Bharadwaj accused the court of prejudging her case, and of unfairly preventing her from calling additional witnesses, introducing rebuttal evidence, and properly examining and cross-examining witnesses. Bharadwaj also contended that on at least three occasions during the hearing, the court “attempted to mimic in a mocking fashion the ethnic accent of [Bharadwaj], a foreign-born naturalized U.S.
citizen.” Bharadwaj further alleged that the court committed legal error in requiring proof of actual physical violence or explicit death threats as a condition of granting the injunction, and in excluding evidence of incidents prior to 2009 that were necessary to establish a pattern of harassment by Mears. Bharadwaj did not request that the judge recuse herself, or request that the matter be assigned to a different judge for a new trial.
Construing Bharadwaj's motion as a motion for reconsideration on the ground that the section 527.6 hearing “was not a trial,” the court denied it, finding that it was procedurally deficient, and in any event, “has not stated any new facts, circumstances or law.” The court granted Mears' motion for attorney fees in the amount of $22,700.
It appears that the court never entered judgment in favor of Mears. Bharadwaj filed a notice of appeal from three unsigned minute orders denying the petition for an injunction, notifying counsel that the motion for a new trial would be treated as a motion for reconsideration, and denying Bharadwaj's motion for reconsideration and granting Mears'
attorney fees motion. Unsigned minute orders are not appealable orders. (Palazzi v. Air Cargo Terminals, Inc. (1966) 244 Cal.App.2d 190, 192; § 581d.) However, in the interests of justice and to avoid delay, we deem the minute order denying the petition for an injunction prohibiting harassment to incorporate a judgment of dismissal and will treat the notice of appeal as applying to that judgment. (Nystrom v. First Nat.
Bank of Fresno (1978) 81 Cal.App.3d 759, 762–763.)
discussion
I. Claim of Bias In Violation of Constitutional Due Process
On appeal, Bharadwaj argues that her federal constitutional rights to due process were violated because the trial judge was biased against her based on her ethnicity, as evidenced by the judge's “derisive mocking” of her accent on several occasions when repeating the phrase “focused malevolence” that Bharadwaj used to describe the manner in which Mears allegedly glared at her. Bharadwaj also suggests that other conduct by the court during the section 527.6 hearing – including showing hostility towards her counsel and improperly interfering with her counsel's questioning of witnesses, and argumentative questioning of Bharadwaj and ridiculing of her testimony –demonstrated that the judge was biased against her, in violation of her constitutional rights to due process.
“ ‘A fair trial in a fair tribunal is a basic requirement of due process.’ [Citation.]” (People v. Freeman (2010) 47 Cal.4th 993, 1000 (Freeman ).) The federal due process clause requires reversal based on judicial bias where there exists “ ‘ “the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.” ’ ” (Freeman, supra, 47 Cal.4th at p. 996, quoting Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. _, 129 S.Ct. 2252, 2257.)
3 It is only “the exceptional case presenting extreme facts where a due process violation will be found.” (Freeman, supra, 47 Cal.4th at p. 1005.)
It is not necessary for us to decide whether Bharadwaj's constitutional due process rights were violated as a result of the trial judge's alleged bias against her. “It is a well-settled rule that if statutory relief is adequate, it is unnecessary and inappropriate for a court to reach constitutional issues.” (Americans for Safe Access v. County of Alameda (2009) 174 Cal.App.4th 1287, 1295; see Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 17, fn. 13 [“As a prudential matter, we routinely decline to address constitutional questions when it is unnecessary to reach them.”].) Such judicial restraint is warranted here, because, as further discussed below, we have concluded that a new trial is mandated under section 657 and that a new judge should preside over the retrial.
II. Errors Alleged to Justify a New Trial Under Section 657
We now address the alleged “irregularities” in the proceedings and errors of law committed by the court, of which Bharadwaj complained in her motion for a new trial pursuant to section 657. (Estate of Friedman (1918) 178 Cal. 27, 39 [“On a motion for a new trial, upon the ground of irregularities in the proceedings of the court, we are dealing with those irregularities, and it is immaterial whether they result from bias and prejudice or not.”]; Develop–Amatic Engineering v.
Republic Mortgage Co. (1970) 12 Cal.App.3d 143, 150.)
A. Court's Error in Refusing to Consider Motion for a New Trial
After Bharadwaj filed a “motion for a new trial and/or in the
alternative for reconsideration,” the court issued a minute order stating that “the court will be treating [the] motion as a motion for reconsideration as the hearing on 1/22/10 was not a trial.” Later, the court considered the motion only as a motion for reconsideration and then denied it, finding that the motion was defective in failing to comply with the specific requirements for a motion for reconsideration, and further did not state any new facts, circumstances, or law.
Bharadwaj contends, and Mears concedes, that the trial court erred in refusing to consider her motion a motion for a new trial based on the rationale that the evidentiary hearing pursuant to section 527.6 was not a trial. We agree that the trial court wrongly concluded that a motion for a new trial may not be taken from a section 527.6 hearing. Section 527.6 sets forth a procedure “for what is in effect a highly expedited lawsuit on the issue of harassment” (Schraer v. Berkeley Property Owners' Assn. (1989) 207 Cal.App.3d 719, 732 (Schraer )), and “[t]he role of the court in a section 527.6 hearing does not differ from its role in other trial settings where the court is the trier of fact.” (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1110.) Accordingly, a party to a section 527.6 hearing may move for a new trial, and the court should have construed Bharadwaj's motion as such.
We now turn to the question whether the motion for a new trial should have been granted, examining the entire record and making an independent assessment of whether there were grounds for granting the motion. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) Bharadwaj argued that a new trial was warranted due to “[i]rregularity in the proceedings of the court ․ by which either party was prevented from having a fair trial.” (§ 657, subd. (1).) Bharadwaj alleged numerous acts of judicial misconduct that prevented Bharadwaj from fairly presenting her case, including the court's prejudging of the case; its “assumption of the role of de facto counsel for [Mears],” including by aggressively cross-examining Bharadwaj and repeatedly expressing skepticism of her testimony; its constant interruptions of counsel preventing him from eliciting testimony from Bharadwaj and from effectively cross-examining Mears; and the refusal to allow Bharadwaj to call several witnesses. Bharadwaj further argued that a new trial should be granted based on the trial court's “error in law” in improperly excluding evidence of events prior to 2009 to show a “course of conduct” justifying a permanent injunction under section 527.6. (§ 657, subd. (7); § 527.6, subd. (b)(3).)
B. Irregularities in the Section 527.6 Proceeding
The purpose of a section 527.6 hearing is to determine whether the plaintiff can prove, by clear and convincing evidence, that he or she is the victim of harassment justifying a permanent injunction against the harasser. (§ 527.6, subd. (d).) Section 527.6 defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” (§ 527.6, subd. (b).) A “course of conduct” is further defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means.” (§ 527.6, subd. (b)(3).)
From our review of the transcript of the section 527.6 hearing, we conclude that there were indeed “irregularities” in the manner in which the court conducted the proceeding that interfered with Bharadwaj's right to a fair hearing on the question whether Mears engaged in a willful and harassing course of conduct that reasonably caused her emotional distress.
At the outset, we recognize the significant leeway that courts have to control the conduct of a trial. (People v. Fudge (1994) 7 Cal.4th 1075, 1108.) In particular, we note that section 527.6 expressly authorizes courts to make an “independent inquiry” during a hearing to determine whether an injunction prohibiting harassment should be issued. (§ 527.6. subd. (d).) Further, “[m]ere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom” should not be the basis for reversing a judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) However, in this hearing, the court exceeded the bounds of reasonable conduct for a judge seeking to exercise control of the proceedings and reach a fair and efficient result.
First, the record strongly suggests that the trial judge prejudged the case. (McVey v. McVey (1955) 132 Cal.App.2d 120, 123 [“A trial judge should not prejudge the issues but should keep an open mind until all of the evidence is presented to him.”].) In Murr v. Murr, a non-jury divorce proceeding, the judge was found to have committed judicial misconduct in prejudging the case. (Murr v. Murr (1948) 87 Cal.App.2d 511, 521 (Murr ).) Soon after the trial started, the judge stated: “How much more time are we going to waste on this?” and “You both know what is going to happen, so let us get through as quickly as possible.” (Murr, supra, 87 Cal.App.2d at p. 517.) He proceeded to make numerous comments to the plaintiff's attorney about his wasting the court's time, including: “Well, it seems to me you must be getting paid by the hour, and want to waste as much of the Court's time as possible”; “I suggest that if you have any evidence to prove your complaint that you put it on, and not waste so much time”; “Have you any evidence in support of your complaint?”; and “[C]annot you try the case without wasting so much time? This case should have been tried in 10 or 20 minutes, just like an ordinary divorce case.” (Id. at p. 517.)
The trial judge here seemed similarly predisposed to rule against Bharadwaj based on a preconceived notion that the case involved run-of-the-mill property disputes between neighbors, as opposed to harassment that deserved to be enjoined. At the very outset of the hearing, when counsel for Mears advised the court that he had witnesses who would not arrive until the afternoon, the court responded, “I have a feeling we'll finish by morning.” Before any witness took the stand, the court questioned Bharadwaj's counsel narrowly about some of the incidents that took place, and immediately characterized them as “very small.”
When Bharadwaj's counsel attempted to examine his first witness, Mears, the court interrupted him before he could even finish his first question:
“Mr. Cohen: Okay. Mr. Mears, I just wanted to –
“The Court: I want to hear about the road rage. I don't want to hear about the fact that the neighbors don't like each other. So many of my cases are cases where people don't like each other. I want to know how a quasi-criminal event should evolve out of the two neighbors who don't like each other. I want to hear why your client is legitimately in fear of her life. Just being harassed is not grounds –
“(Court and counsel are talking over one another.)
“Mr. Cohen: Okay. It is not how I planned to start.
“The Court: Well, you know, I think that is where this case is getting off record. There has been a lot of attorney fees being generated for issues I don't like. What is the property line? Who owns what? ․ Where is the parking?”
The record suggests the trial judge had already made up her mind before the testimony even began that the case was a waste of time. The court interrupted Bharadwaj's counsel repeatedly during his attempted examination of Mears, making statements such as: “You have wasted this court's time so far for 20 minutes, and I haven't heard one piece of evidence”; “I think the record is pretty
clear that you have proven nothing. You haven't proved anything yet”; and “I think the record reflects you are going for more than an hour and you haven't elicited any information that would support your case.” As in Murr, the court's many “ill-advised and unnecessary comments with respect to wasting [her] time establish definitely that [she] did not consider that the issues presented by plaintiff were worthy of consideration.” (Murr, supra, 87 Cal.App.2d at p. 520.)
When Bharadwaj took the stand to submit to direct examination, the court essentially took over the examination, questioning her in a one-sided manner and characterizing her testimony to fit the court's view that Bharadwaj's request for an injunction was motivated solely by minor property disputes, rather than a fear of continued harassment. We acknowledge that “ ‘ “if a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them. Considerable latitude is allowed the judge in this respect as long as a fair trial is indicated [to both parties].” ’ ” (Conservatorship of Pamela J. (2005) 133 Cal.App.4th 807, 827.) Moreover, in a nonjury trial a judge may have greater leeway to examine witnesses than in a jury trial, and particularly so here, given the court's authority under section 527.6 to “make an independent inquiry.” (§ 527.6, subd. (d).) But the inquiry must be reasonable and respectful. Here, the record reflects that the court repeatedly cut off Bharadwaj, belittled her, and mischaracterized her testimony while questioning her in a way that was not consistent with permitting her to present her case.
After permitting Bharadwaj's counsel to ask only three questions of Bharadwaj, the court assumed the role of a cross-examiner focused on getting Bharadwaj to admit that Mears had never physically harmed or explicitly threatened to harm her, which the trial court seemed to view as a prerequisite for issuing the injunction. In response to the court's questions, Bharadwaj attempted to testify about an incident that culminated in what she considered “road rage” against her by Mears. She testified that the incident began when she pulled out of her driveway and saw Mears standing on the nearby sidewalk, glaring at her. When the court asked her what she meant, Bharadwaj stated that he was “looking with focused, monovalent eyes on me.” (Obviously, the court reporter transcribed the word “monovalent” a term that makes no sense in this context, in lieu of “malevolent,” and did so throughout the hearing.) The court then stated, “He looked at you in a mean way.” Bharadwaj attempted to explain that “it goes beyond that,” but the court did not permit her to elaborate, and instead asked Bharadwaj, “Has he ever physically harmed you? Yes or no.” Bharadwaj then testified that Mears'
car soon caught up to her several blocks away, and Mears gunned his engine,
sped into the wrong lane, and intentionally cut her off, coming within a foot of her
car and causing her to panic. The court was dismissive of this testimony, following it up with the question, “Now, but the entire time you have known him ․ there has never been any physical contact between you?”
Bharadwaj attempted to testify about another incident with Mears that grew out of a disagreement over driveway access and allegedly escalated to the point that Mears was swearing and yelling at her and attempted to enter her garage. However, the court repeatedly interrupted her before she could finish explaining what had happened, mischaracterizing her testimony as establishing only that “there was an argument over access to a parking area that you initiated verbal contact with the respondent and he responded by saying, ‘I can't hear you,’ which you interpreted as being monovalent focus.” When Bharadwaj attempted to explain that there was more to the incident than that, because Mears continued to swear and yell at her and tried to come into her garage, the judge commented, “Again over the parking?” and made it clear she wanted to move on to another topic. Bharadwaj managed to come back to the event to add that ten minutes after she shut the garage door before Mears could enter, she went outside to take out the trash, and found Mears still there, yelling. The court responded, “Yelling that he owned the property and he has a right to the parking?”
When Bharadwaj's counsel attempted to interject a question and asked Bharadwaj why she was afraid of Mears, the court immediately interrupted before Bharadwaj could answer, stating, “He has never touched you. He has never sworn at you. He has never threatened you and the most he has done is give you a monovalent look and the finger when you were arguing about the parking situation.” Despite counsel's objection to this mischaracterization of Bharadwaj's testimony, the court continued: “The point is, ma‘am, your argument really relates to neighborhood issues and particularly parking, and blocking the driveway.” Repeatedly, the court cut off counsel's attempt to elicit testimony on other incidents and the reasons Bharadwaj was afraid of Mears, inserting comments such as, “The one incident that was described is absolutely meaningless. We know that the argument is over parking spaces in the neighborhood dispute and monovalent looks for her psychological fear.” The court added: “You are neighbors, ma‘am. If I gave you a TRO, I can only shudder at the thought how you would be calling
the police to have him arrested every time you interpret a look from him as monovalent focus.” Looking at the examination of Bharadwaj as a whole, we conclude that she was not given a fair opportunity to present her case for an injunction preventing harassment.
Relying on the principle that “a judge's examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred” (People v. Corrigan (1957) 48 Cal.2d 551, 556), Mears contends that Bharadwaj failed to object when the court took over the questioning and thus has forfeited the claimed error. We do not find such a forfeiture here. Only a few minutes into the trial, Bharadwaj's counsel objected, “Your Honor, I declare a mistrial. You are not letting me continue. I want this on the record. I ask for a mistrial. You know, you have interrupted me at every single stage.” A few minutes later, Bharadwaj's counsel again protested: “Your Honor, I haven't had a chance to finish. Every time I say something, you have cut me off. I would like to try my own case.” In addition, counsel frequently objected to the court's mischaracterizations of Bharadwaj's testimony. Given the tenor of these proceedings, inserting objections each time the court interrupted and took over the questioning would have been futile. (People v. Sturm (2006) 37 Cal.4th 1218, 1237; Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1007.)
The trial court's repeated criticisms of Bharadwaj's counsel further prevented counsel from properly putting on Bharadwaj's case. (See Murr, supra, 87 Cal.App.2d at pp. 517–521.) To be sure, counsel's questions were sometimes rather far afield, and thus it was not unreasonable for the court to steer counsel back to the conduct constituting a pattern of harassment. (People v. Guerra, supra, 37 Cal.4th at p. 1111 [“When an attorney engages in improper behavior, such as ignoring the court's instructions or asking inappropriate questions, it is within a trial court's discretion to reprimand the attorney, even harshly, as the circumstances require.”].) However, the court was gratuitously harsh, making statements such as, “Counsel, I am really surprised at the job you are doing”; “I am kind of shocked [at your questioning] to tell you the truth”; “You have to be kidding me, counsel”; and “You certainly did a good job of making [Mears'] case so that his attorney really doesn't have to get him on direct.” As the proceedings continued to deteriorate, the court told counsel, “You can't put words in [Bharadwaj's] mouth. You have done a good job of that.” Bharadwaj's counsel responded, “Is there anything at all good you can say about me?” The court replied, “No,” at which point counsel renewed his request for a mistrial. The court's treatment of counsel throughout the hearing was “the antithesis of judicial decorum and courtesy.” (Haluck v. Ricoh Electronics, Inc., supra, 151 Cal.App.4th at p. 1003.)
The trial judge's prejudgment of the case, her improper questioning and mischaracterizing of Bharadwaj's testimony, and her pattern of hostility towards Bharadwaj's counsel constituted judicial misconduct and “irregularities” in the proceedings.
4Error in Law
Bharadwaj also contends that a new trial must be granted because the court committed an “error in law” in improperly excluding evidence of harassing incidents prior to 2009. (§ 657, subd. (7).)
5 We review the trial court's exclusion of evidence for an abuse of discretion. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.)
Section 527.6 directs the court to “receive any testimony that is relevant” at the hearing on a petition for a permanent injunction against harassment. (§ 527.6, subd. (d).) As discussed above, under section 527.6, harassment may consist of “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose,” and that reasonably causes the plaintiff to suffer substantial emotional distress. (§ 527.6, subd. (b).) A course of conduct is further defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” (§ 527.6, subd. (b)(3).) Thus, in a section 527.6 hearing, the court is “required to receive relevant testimony” regarding the alleged “course of conduct,” “subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by ․ section 527.6.” (Schraer, supra, 207 Cal.App.3d at p. 730, 733, fn. 6.)
The incidents forming the basis for Bharadwaj's application for a restraining order allegedly first began in 2007. Despite counsel's argument that he needed to establish a pattern of harassment prior to the date the TRO was entered in March 2009 and Mears' harassing conduct was enjoined, and despite the fact that many of the alleged instances of harassment took place in 2007 and 2008, the trial court arbitrarily limited the evidence regarding instances of harassment to the three months prior to the date the TRO was entered.
Mears suggests that during Bharadwaj's testimony, the trial court withdrew its rulings excluding evidence of incidents prior to 2009. At the outset of Bharadwaj's testimony, however, when she attempted to testify to intimidation and threats by Mears for the two years prior to the March 3, 2009 incident, the judge told Bharadwaj that she did not want to hear about events before 2009. Although the court let Bharadwaj testify about two incidents in 2008, the court subsequently stated it was “not interested” in testimony about events in 2007. Mears thus incorrectly asserts that the court made an “obvious change” in its ruling excluding evidence of incidents prior to 2009.
The trial court's ruling hampered Bharadwaj's ability to prove a pattern of harassment or “course of conduct.” We conclude that the trial court committed an “error in law” in categorically excluding evidence of these prior events to establish a pattern of harassing conduct, without any articulation of a reasonable basis for such a ruling.
Taken individually, it is possible that none of the above acts of judicial misconduct or the error in excluding evidence of incidents prior to 2009 would constitute an error that “materially affect[ed] the substantial rights” of Bharadwaj such that a new trial was necessary. (§ 657). However, “the cumulative effect of the trial judge's conduct requires reversal.” (People v. Sturm, supra, 37 Cal.4th at p. 1243.) “The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand.” (Pratt v. Pratt (1903) 141 Cal. 247, 252.) We therefore reverse the judgment and remand the matter to the superior court for a new trial before a different judge. (§ 187; Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 455, disapproved on another ground in Freeman, supra, 47 Cal.4th at p. 1006, fn. 4.) In doing so, we do not mean to suggest that the new judge should not impose “such reasonable limitations as are necessary to conserve the expeditious nature” of a section 527.6 proceeding. (Schraer, supra, 207 Cal.App.3d at p. 733, fn. 6.) We also do not mean to suggest that Bharadwaj is or is not entitled to an injunction. We only conclude that both parties must be treated fairly before a ruling on that issue is made.
6disposition
The judgment is reversed and remanded for a new trial, with directions to the presiding judge of the superior court to assign the matter to a different judge. Each party shall each bear its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
FOOTNOTES
1. FN1. All references to code sections herein are to the California Code of Civil Procedure.
2. FN2. After agreeing to the stay, Bharadwaj sought to disqualify the original judge under sections 170.1, 170.3, and 170.6, contending that the court was biased against Bharadwaj and conducted a de facto settlement conference without her consent. The judge denied the motion for disqualification, finding that it lacked merit, but ultimately recused herself in “the interest of justice” because she deemed it essential that the parties to a restraining order proceeding perceive they have been provided a full and fair hearing.
3. FN3. California law calls for the disqualification of a judge based on the mere appearance of bias (§ 170.1, subd. (a)(6)(A)(iii); Freeman, supra, 47 Cal.4th at p. 1001), and thus imposes standards to protect against judicial bias that are more rigorous and expansive than the “ ‘ “constitutional floor” ’ ” set by the due process clause. (Freeman, supra, 47 Cal.4th at p. 1005.) Therefore, most disputes over disqualification may be resolved under California's statutory law and “ ‘without resort to the Constitution.’ ” (Ibid.) Here, however, Bharadwaj never sought the disqualification of the trial judge under section 170.1 based on the appearance of bias.
4. FN4. While Bharadwaj complains of other conduct by the judge, such as refusing to permit other witnesses to testify, we find that Bharadwaj has not carried her burden of showing any misconduct on the judge's part in such rulings.
5. FN5. Bharadwaj also asserts that the trial court erroneously interpreted section 527.6 to require proof of actual physical violence or the express threat of violence in order for an injunction against harassment to be issued. As Mears points out, Bharadwaj failed to timely request a Statement of Decision (§ 632). In the absence of a Statement of Decision, even if the record of the hearing indicates that the trial court was applying the wrong legal standard, we must assume that the trial court corrected any error and applied the proper legal standard in denying Bharadwaj's request for an injunction. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.)
6. FN6. Because we necessarily reverse the grant of attorney's fees in favor of Mears as well, we need not reach Bharadwaj's contention that the award was otherwise erroneous.
WILLHITE, J.
EPSTEIN, P. J.SUZUKAWA, J.
