Filed 6/17/20 Corso v. Bruhl CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MICHAEL CORSO,

Plaintiff and Appellant,

v.

JAY BRUHL,

Defendant and Respondent.

D075804

(Super. Ct. No. 37-2018-00009177-
CU-HR-NC)

APPEAL from an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed.

Michael Corso, in pro per., and for Plaintiff and Appellant.

Fascenelli & Associates and Frederick W. Fascenelli, Jr., for Defendant and Respondent.

I

INTRODUCTION

Michael Corso appeals an order awarding his neighbor, Jay Bruhl, attorney fees after the court denied Corso’s request for a civil restraining order against Bruhl. Corso contends the trial court: (1) denied him due process by dismissing his request for a civil restraining order, (2) abused its discretion in allowing Corso’s former attorney to withdraw from the case, and (3) abused its discretion in awarding “absurd” attorney fees tainted by judicial bias. We have no jurisdiction to consider Corso’s challenges to either the order dismissing his request for a civil restraining order or the order granting the motion to withdraw filed by Corso’s former attorneyl because Corso did not timely appeal those orders. Therefore, our consideration is limited to the order awarding attorney fees, which is an appealable post-judgment order. (Code Civ. Proc., § 904.1, subd. (a)(2).) On that issue, we conclude the court did not abuse its discretion and Corso has failed to establish judicial bias requiring reversal. Accordingly, we affirm the order.

II

BACKGROUND

Corso requested a civil harassment restraining order and obtained a temporary restraining order in February 2018 on behalf of himself and his family members against Bruhl, who lived on their street. Corso contended Bruhl ran up to Corso’s truck and yelled angrily at him. He also alleged there were other occasions when Bruhl drove by the Corsos’ house honking his horn and staring at them in a provocative manner while another neighbor, John Holtman, gave them threatening stares as he held a camera. In a related action, Corso also sought a restraining order against Holtman, which is the subject of a separate opinion issued concurrently herewith. (Corso v. Holtman (June 17, 2020, D075859).) Bruhl and Holtman denied the allegations of harassment and contended the Corsos were abusing the process by placing themselves in situations to assert false claims of harassment and stalking.

At the hearing on June 4, 2018, the court dismissed the request for a civil restraining order after concluding Corso could not meet his burden by clear and convincing evidence. It also stated Corso appeared to be “acting as a strawman for his mother” in seeking the restraining order.

The court later explained it determined Corso’s testimony “did not line up with the written declaration that he signed,” which was almost identical to the one signed by his mother. The court thought it was clear from Corso’s testimony that it was not his idea to bring the restraining order request. The court stopped the questioning of Corso’s mother because the court found her answers “dishonest.” The court dismissed the restraining order request because it determined “much of the corroborating evidence that … Corso would rely on would be his mother,” and it “no longer trusted her to give [the court] truthful answers.” The court determined Corso was unable to meet his burden and expressed hope that ending the hearing would serve the purpose of judicial economy by limiting the attorney fees incurred by the parties.

Counsel for Corso argued the court should not grant attorney fees because Corso filed the action in good faith. The court stated it would award attorney fees based upon statutory authority to award such fees to the prevailing parties in a restraining order action.

Although the record is not complete, the parties apparently exchanged briefing on the attorney fee issue. Corso’s counsel filed a written objection to the requested fees and asked the court to order the parties to bear their own costs. Corso’s counsel also asked the court to consider additional evidence in support of his allegations of prior violations of the temporary restraining order.

The parties engaged in settlement discussions, but were unable to resolve the matter. On August 17, 2018, the court granted Corso’s former counsel’s request to be relieved of representing Corso. The court continued the hearing on the fee motion at the request of Corso’s former counsel.

The court continued the fee hearing several more times before it was ultimately heard on April 4, 2019 with Corso represented by new counsel. The court considered a request by Bruhl and Holtman to add Corso’s mother as a party, which would allow her to bear a portion of the fee award. Although the court noted Corso’s mother played a role in the action, the court denied the request.

On the fee issue, Bruhl’s counsel stated he submitted a request at the June 2018 hearing for approximately $10,000 and was willing to discount the amount at that time. He also stated he had not charged his client for the time spent on the case at multiple hearings and in discussions with Corso’s attorneys since the restraining order hearing. Bruhl’s counsel sought only his original request for $10,000, saying he would cover the bill for everything else.

In ruling on the fee request, the court clarified that it was awarding fees under the standard for awarding prevailing parties fees in a civil harassment case. Therefore, it did not need to consider whether Corso filed this action in good faith. The court awarded Bruhl $10,000 in fees with payments made either forthwith or at a rate of $1,000 per month until paid with the standard 10 percent fee. Corso appealed the April 4, 2019 order.

III

DISCUSSION

A

The order of June 4, 2018 dismissing the request for a civil restraining order and dissolving the temporary restraining order was an appealable order as an order denying an injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); see R.D. v. P.M. (2011) 202 Cal.App.4th 181, 187.) Because Corso did not timely appeal that order, we cannot consider his arguments regarding that issue.

B

An order granting or denying an attorney disqualification motion is also an appealable order. (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882.) Because Corso did not appeal or otherwise challenge the order relieving counsel, that order is long since final and cannot be raised in this appeal.

Even if we could consider the withdrawal issue, Corso has failed to show, with reasoned legal argument and citations to the record, that he was prejudiced by the withdrawal. When an appellant asserts a point but fails to support it with ” ‘ “reasoned argument and citations to authority,” ‘ ” we may treat the point as forfeited. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).) ” ‘We are not bound to develop appellants’ arguments for them.’ ” (Ibid.) An appellant must also cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Any point raised that lacks citation may be deemed forfeited. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 287, citing Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [it is not the reviewing court’s responsibility to search the appellate record for facts or to conduct legal research in search of authority to support the contentions on appeal].) A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)

Corso’s briefs make many factual assertions to matters outside the record. These include comments regarding how his former attorney conducted the restraining order hearing, promises or statements made by Corso’s former attorney, and subsequent fees Corso incurred. Corso also cites legal authorities involving attorney disciplinary proceedings, which have no bearing on the consideration of a court’s order granting an attorney’s request to withdraw. Any claims Corso may have against his former attorney are not properly before us.

Further, Corso has not and cannot establish prejudicial error related to the withdrawal. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1107–1108.) The court continued the attorney fee hearing numerous times over nine months after Corso’s former attorney substituted out of his representation. The court reviewed and considered additional briefing not only from Corso’s new attorney, but also from his former attorney before the final attorney fee hearing. Corso was represented at the hearing by competent legal counsel who argued extensively on his behalf. As discussed post, the court awarded less than the attorney fees actually incurred and did not include fees incurred because of the continuances. Thus, there was no prejudicial error in granting the motion to withdraw.

C

Corso challenges the fee award as “absurd” and “ridiculous.” We disagree with Corso’s characterization of the fee award.

Code of Civil Procedure section 527.6, subdivision (s) gives the court discretion to award costs and attorney fees to the prevailing party in an action for a civil restraining order. The court exercised its discretion under this provision to award fees. “We review attorney fee awards on an abuse of discretion standard. ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ‘ ” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.)

Corso failed to designate a complete record regarding the attorney fee issue by failing to include the papers submitted by Bruhl in support of his fee request. “We cannot

presume error from an incomplete record.” (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.) We are not permitted to speculate as to the contents of the missing portions of the record or the issues that may have been raised below. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) The failure to provide an adequate record on appeal “precludes an adequate review and results in affirmance of the trial court’s determination.” (Estrada v.

Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)

The available record shows no abuse of discretion. At the conclusion of the restraining order hearing, Bruhl’s counsel stated he had submitted a declaration setting forth the time he spent on the case as of June 2018. The record contains a document filed July 3, 2018 in which Corso’s counsel challenged the legal fees requested by Bruhl. Although the total amount requested by Bruhl is not clearly identified, it appears the fees incurred prior to the June 2018 hearing exceeded at least $11,000. At the fee hearing, Bruhl’s counsel said he originally requested only $10,000 in fees as of the restraining order hearing and did not charge his clients for the numerous continued hearings over nine months. In awarding Bruhl $10,000, the court stated, “it is clear that [Bruhl and Holtman] have incurred attorney fees far in excess of what they are requesting today.” We cannot conclude the court’s award was clearly wrong. It appears eminently reasonable under the circumstances.

D

Finally, Corso fails to provide reasoned argument supported by appropriate legal authority for his contention the trial court was biased against him and this bias tainted the award of fees. The only authority to which Corso points is a nonpublished case from another district that does not offer even persuasive authority. Therefore, we may deem the issue forfeited. (Cahill, supra, 194 Cal.App.4th at p. 956.)

Even exercising our discretion to consider the issue, the record does not demonstrate bias. It is true that “[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.” (Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242.) However, 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.” (People v. Freeman (2010) 47 Cal.4th 993, 1005.) “This case does not implicate any of the concerns—pecuniary interest, enmeshment in contempt proceedings, or the amount and timing of campaign contributions—which were the factual bases for the United States Supreme Court’s decisions in which it found that due process required judicial disqualification.” (Id. at p. 1006.)

Corso appears to complain about the delays in the fee hearing, but the record shows the fee hearing was continued several times to allow Corso to obtain new counsel, because Corso did not appear at scheduled hearings, and to permit Corso’s new counsel to provide further briefing. Thus, it appears to us that the continuances were primarily intended to benefit Corso, not to harm him.

Corso takes issue with comments the court made about Corso’s failure to appear at a scheduled hearing due to illness after several other failures to appear. However, the court did not grant a request to issue an order to show cause regarding contempt for Corso’s failure to appear. Instead, the court continued the hearing.

Finally, the court did not make derogatory or disparaging remarks regarding Corso’s socioeconomic status. In response to a request from Holtman’s counsel to consider an asset freeze in addition to an order to show cause, the court stated it was “concerned” that Corso, with the assistance of his parents, was “taking steps to divest himself of any assets he might have.” The court stated it did “have his sworn testimony about his assets” and stated there might be “a lively discussion” whether he still owned the vehicles he told the court about months earlier or whether, in anticipation of the pending motion, “he decided to somehow not maintain those and receive no compensation for the distribution.” But after making these statements the court stated it preferred to address the issue at a future date.

The record shows the court made rulings both for and against Corso. The mere fact that the court issued some adverse rulings to Corso, “even assuming one or more of those rulings were erroneous, does not indicate an appearance of bias, much less demonstrate actual bias.” (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 674.) Accordingly, we reject Corso’s claim that his due process right to an impartial judge was violated.

IV

DISPOSITION

The order awarding attorney fees is affirmed. Bruhl shall recover his costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

GUERRERO, J.