Filed 12/9/19 Avila v. Harada CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CARLOS AVILA,

Appellant,

v.

KAITLIN HARADA,

Respondent.

F075887

(Super. Ct. No. FLM57651)

OPINION

APPEAL from an order of the Superior Court of Merced County. Shelly A. Seymour, Commissioner.

Fine, Boggs & Perkins and John P. Boggs for Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter and Victoria R. Bernhardt for Respondent.

-ooOoo-

During proceedings on Kaitlin Harada’s (Harada) request to relocate with her now seven-year-old son, father Carlos Avila (Avila) moved to have the child custody evaluator disqualified due to a conflict of interest and his evaluation stricken. The family court denied Avila’s motion and granted Harada’s move-away request. Avila appeals, arguing the family court abused its discretion when it refused to disqualify the evaluator and instead relied on his report in issuing the move-away order. As Avila has failed to show reversible error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2013, Avila filed a petition to establish a parental relationship as the father of then 18-month-old C.A., whose mother is Harada. Avila and Harada were never married. In January 2014, the family court ordered supervised visits for Avila and appointed a child custody evaluator, Christina Alcantar. Following an October 2014 hearing on custody and visitation, the family court issued an order adopting Alcantar’s custody and visitation recommendation, giving Harada legal and physical custody, and Avila supervised visitation. On the evaluator’s recommendation, Avila was to be interviewed by Dr. Donald Strangio, whose findings were to be included in the recommendation, and to continue counseling at Strangio’s direction.

Avila began individual counseling with Strangio in August 2014. In January 2015, Strangio recommended phasing out supervised visits, with Avila continuing individual counseling. In addition, Strangio wanted the opportunity to meet jointly with Avila and Harada to discuss co-parenting. In February 2015, the family court ordered joint sessions for Avila and Harada with Strangio, and unsupervised visits for Avila.

Harada’s Move-away Request

In August 2015, Harada filed a motion requesting modification of the current custody and visitation order to allow her and C.A. to move to Southern California, as she had been offered a job in Los Angeles. In a supplemental declaration, filed in October 2015, Harada claimed Avila was not abiding by the court order regarding personal counseling or a permanent restraining order that was issued earlier in the case. Harada asked the family court to order: (1) Avila’s visits return to supervised; (2) Avila attend personal counseling; and (3) she and Avila attend joint counseling with a licensed therapist other than Strangio, as she felt uncomfortable going to the therapist who thought Avila was healthy enough to stop attending sessions. Avila filed his opposition to Harada’s relocation request and response to her supplemental declaration in October 2015.

The family court referred the parties to mediation to address the move-away request. A child custody recommending counselor recommended a full scope private evaluation of Harada’s request and listed nine qualified evaluators, including Dr. Robert Bernstein, from which the parties could choose, although they were free to choose another evaluator. In November 2015, the family court ordered the attorneys to contact evaluators to see who was available and the cost, and ordered the child not to be moved out of Merced County until an evidentiary hearing was held. On November 23, 2015, the family court appointed Bernstein to conduct the child custody move-away evaluation, with Harada to pay the evaluation’s costs.

On February 1, 2016, Harada filed for a temporary move-away order, stating she needed to be allowed to move to Culver City pending trial so she could keep her employment with the University of Southern California, as the job offer would expire if she was not able to start work on-site in two weeks. Following a hearing, the family court granted Harada’s request and gave Avila custodial time every weekend from noon on Thursday to noon on Sunday.

Avila’s Motion to Disqualify the Evaluator

Bernstein issued his report on May 13, 2016, in which he recommended the family court grant Harada sole legal and physical custody of C.A., and permit her to relocate with him. Bernstein further recommended the family court grant Avila once monthly unsupervised visitation during three-day weekends, whenever possible. Bernstein recommended the parties engage in monthly co-parent counseling.

The family court gave the parties until June 13, 2016, to file objections to Bernstein’s evaluation and recommendation. Avila subsequently moved to disqualify Bernstein. Avila asserted that after the parties agreed to the appointment of an independent evaluator, the court appointed Bernstein from a list of names the parties submitted, but Bernstein failed to disclose a conflict of interest. Avila claimed that during the evaluation process, Harada engaged Bernstein to act as her paid expert witness at trial, as shown by the April 7, 2016 declaration of her attorney, Cindy Hopper, which listed Bernstein as a “paid expert witness who was prepared to testify for $1200.00 per day for deposition or $5,000.00 per day at trial” and stated he agreed to testify at trial and was familiar with the action. Avila argued Hopper’s declaration showed she had ex parte communications with Bernstein before the evaluation was completed, as he agreed to act as Harada’s expert, and therefore he must be removed as the court-appointed evaluator and his report disregarded.

Avila attached Hopper’s April 7, 2016 exchange of expert witness information and expert witness declaration, which stated it was pursuant to Code of Civil Procedure section 2034.260. On the first page, Hopper stated Avila made the demand for exchange of expert witness information, and listed Bernstein’s and Alcantar’s names and addresses as “[t]he name and address of each person whose expert opinion” Harada “expects to offer in evidence at the trial.” Hopper stated in her declaration: (1) she made the “expert witness declaration” as required by section 2034.260, subdivision (c); (2) Bernstein “qualifies as an expert in the field of psychology and psychological assessment”; (3) Bernstein “will give his expert opinion regarding [Harada]’s request for a move away”; and (4) “This expert’s daily fee for providing deposition testimony is $5,000.” Hopper listed similar information for Alcantar. Hopper further declared: “Each expert identified in this declaration has agreed to testify at the trial and will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning any opinion and its basis.”

Harada’s Response to Avila’s Disqualification Motion

The family court set a hearing on Avila’s disqualification motion for August 4, 2016. At that hearing, the court permitted the parties to file further declarations and points and authorities. Hopper submitted her responsive declaration four days later. As to Avila’s objections that Bernstein was Harada’s retained expert, Hopper asserted this was “absolutely FALSE,” as was Avila’s “mistaken impression” there had been an ex parte communication with Bernstein. Hopper asked the family court to deny Avila’s requests to strike the report and recuse the evaluator.

In her declaration, Hopper stated Avila, through his attorney, sent her office a “ ‘Demand for Expert Witness Exchange’ ” pursuant to section 2034.260. Since she was aware Bernstein was in the process of conducting the child custody evaluation, she listed Bernstein as an expert witness, but not her retained expert. Hopper denied there was any ex parte communication with Bernstein; she obtained Bernstein’s daily fee for providing a deposition by having her staff contact his staff and asking for the information. Hopper’s staff also contacted Bernstein’s office to advise him of the initial and continued hearing dates to ensure he was available to testify. Hopper declared that her office never retained Bernstein or Alcantar to be Harada’s expert witnesses. Hopper placed Bernstein and Alcantar on the expert witness exchange because she wanted to qualify them as experts and so they would be present to testify regarding the reports they prepared, as she knew Avila would not stipulate to the reports coming into evidence.

The Hearing on Avila’s Disqualification Motion

The parties presented argument concerning Avila’s disqualification motion at an August 23, 2016 hearing. The minute order of the hearing shows the family court asked the parties to review their files and locate the following items, which they were to provide the court by September 2, 2016: (1) a December 30, 2015 letter from Avila’s attorney John Boggs to Bernstein; and (2) a January 7, 2016 letter and attachments which Harada’s former attorney sent to Boggs. The court also allowed the parties to provide additional briefing concerning Avila’s disqualification motion and set a briefing schedule.

Hopper subsequently filed a request to file a late response, which the family court granted. Avila filed his reply to Hopper’s declaration, in which he argued Hopper’s April 7, 2016 expert witness designation showed Harada engaged Bernstein to act as her paid expert witness at trial, and Harada’s claim that Bernstein was not really her expert was “patently absurd” given Hopper’s declaration. Avila further argued that because Hopper’s declaration followed the disclosure requirements for a retained expert as stated in sections 2034.210 and 2034.260, the declaration “clearly and unambiguously” designated Bernstein as Harada’s expert witness. Avila also discussed the letters the family court ordered the parties to produce, arguing his attorney was not aware Harada provided additional information to Bernstein with the January letter until Bernstein issued his report, which relied heavily on that information.

On October 12, 2016, the family court issued an order stating it reviewed the parties’ documentation and legal briefs, and considered their arguments, but before rendering a decision on Avila’s disqualification motion, it was necessary to obtain Bernstein’s written testimony on seven issues. As pertinent here, the family court asked him to address: (1) whether he had spoken to either of the parties’ attorneys about the case before, during or after the evaluation process, and the circumstances of any conversations; and (2) whether either party’s attorney had contacted him “about acting as ‘their’ expert (not the Court’s) for purposes of testifying” at trial and, if so, which attorney contacted him and what was discussed.

On October 24, 2016, the family court addressed Avila’s disqualification motion. According to the minute order of the hearing, after Bernstein testified on Harada’s behalf and the answers he provided to the court’s questions in an October 18, 2016 letter were treated as his testimony, the family court was “persuaded there is no reason to disqualify Dr. Bernstein.” The family court ordered Bernstein to return on December 20, 2016, which was the previously set trial date, “on objections to [his] evaluation.”

The Hearing on Harada’s Move-away Request and the Family Court’s Ruling

At the December 20, 2016 trial, the family court found that because Harada had sole legal and physical custody of the child, she had the authority to move away with him and it was Avila’s burden to show detriment. Bernstein testified, and his report was admitted into evidence. After Bernstein’s testimony, the family court issued an order allowing Harada to relocate with the child. The family court granted Harada’s motion for Alcantar’s report to be accepted in lieu of her testimony. The family court continued the trial to January 2017.

After Harada and Avila testified at the January 30, 2017 continued trial, the family court ordered the parties to submit written arguments. In Harada’s closing argument, she asked the family court to adopt Bernstein’s recommendations. As applicable here, Avila asserted in his closing brief that Bernstein testified that before he issued his report, his office was consulted about testifying at trial and asked how much he would charge, and it was “undisputed” Harada listed Bernstein as her expert witness. Avila renewed his argument that Bernstein must be disqualified because Hopper listed him as an expert witness in her April 7, 2016 expert witness designation.

On May 1, 2017, the family court issued its order on Harada’s move-away request. The family court first stated that Avila’s objections to the court-appointed expert’s recommendation concerning mother’s request were heard on October 24 and December 20, 2016, and January 30, 2017, with the court taking the matter under submission on February 21, 2017. After considering the testimony from Bernstein and the parties, reviewing the evidence and Bernstein’s report and recommendation, hearing the argument of counsel, and reviewing the parties’ briefs and other submissions, the family court ordered that Harada would continue to have sole legal and physical custody of the child and be permitted to relocate to Southern California with him, and Avila would have custodial time two weekends per month during the school year, and additional vacation time during the summer.

DISCUSSION

Avila contends the family court erred when it denied his request to disqualify Bernstein. He reasons that because Harada filed an expert witness declaration, which complied with the disclosure requirements of sections 2034.210 and 2034.260 for an expert “retained by a party for the purpose of forming and expressing an opinion . . . in preparation for the trial of the action” (§ 2034.210, subd. (b)), Bernstein was in fact Harada’s retained expert. He argues “[w]hen Harada designated Dr. Bernstein as her testifying expert, an immediate conflict of interest arose,” as Bernstein then had a dual relationship as a court-appointed evaluator and Harada’s testifying expert, which was a per se violation of California Rules of Court, rule 5.220(h).

Avila also asserts Harada and her attorney “communicated with Dr. Bernstein to get his agreement to testify at trial for Harada,” as they would never have designated him as a retained expert “without having some advance knowledge of the yet-to-be-completed evaluation of Dr. Bernstein” and Hopper’s declaration states he agreed to act as Harada’s expert. He argues “[s]uch ex parte communications cannot be discounted and the possibility that Dr. Bernstein’s retention by Harada and her promise to pay him as her designated trial expert may have tainted his report cannot be ignored.”

Based on the expert witness designation, Avila asserts the family court should have disqualified Bernstein and stricken his evaluation. He asks us to reverse the custody and move-away order and instruct the family court to disqualify Bernstein, strike his evaluation, and reevaluate Harada’s move-away request and the custody and visitation order.

Evidence Code section 730 authorizes a court to appoint a disinterested custody evaluator to provide the court with an impartial custody report stating the evaluator’s reasons after reviewing possible custody arrangements. (In re Marriage of Adams & Jack A. (2012) 209 Cal.App.4th 1543, 1562.) “ ‘The job of third parties such as . . . evaluators involves impartiality and neutrality, as does that of a judge, commissioner or referee.’ ” (Ibid.) California Rules of Court, rule 5.220, sets forth detailed procedures for the appointment of child-custody evaluators and the ethical standards applicable to them.

Although the standard of review in assessing a trial court’s denial of a motion to remove a child custody evaluator is unclear, we cannot conclude the family court erred in declining to disqualify Bernstein or strike his report under any potentially applicable standard. In In re Marriage of Adams & Jack A., supra, 209 Cal.App.4th 1543, the court considered whether the trial court properly denied a party’s motion to remove a custody evaluator based on alleged bias. (Id. at p. 1563.) The court determined the question of whether the evaluator was biased against a party was a question of law to be reviewed de novo because the facts were undisputed. (Id. at pp. 1563‒1564.)

Here, by contrast, the facts are not undisputed. Avila focuses on the expert witness designation, arguing Bernstein obviously was a retained expert because Hopper: (1) completed an expert witness declaration for him which referenced section 2034.260, subdivision (c); (2) listed his qualifications, the general substance of his expected testimony, and his daily fee for providing deposition testimony; and (3) stated he had agreed to testify at trial and would be familiar with the pending action. Avila further argues it can be inferred from the declaration that ex parte communications occurred between Hopper and Bernstein.

According to Hopper’s declaration submitted in response to Avila’s disqualification request, however, Harada did not retain Bernstein as an expert or ask him to testify on her behalf. Hopper claimed she listed Bernstein as an expert, not because he was a retained expert, but because she intended to call him as an expert at the contested hearing. It appears Hopper believed she was required to complete the expert witness declaration, despite Bernstein being a non-retained expert, and to do so, she had her staff contact Bernstein’s staff to ask how much he would charge if called to testify. Hopper also declared the only ex parte communication she or her staff had with Bernstein was to contact his office to advise him of the hearing dates.

This created a factual issue for the family court to resolve—whether Bernstein actually was Harada’s retained expert. To do so, the family court asked Bernstein to provide written testimony about whether any of the parties’ attorneys contacted him to inquire about acting as an expert and, if so, the details of that contact, and whether he had spoken to any of the attorneys about the case. While Bernstein testified at the October 24, 2016 hearing and his written testimony was treated as his testimony, neither his oral or written testimony is in the record. After Bernstein’s testimony, the family court was persuaded there was no reason to disqualify him.

“[I]t is a fundamental principle of appellate procedure that a trial court [order] is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal . . . . ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record.’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) “A proper record includes a reporter’s transcript or a settled statement of any hearing leading to the order being challenged on appeal.” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.)

Avila contends the family court abused its discretion in denying his disqualification motion. However, he has not provided this court with a reporter’s transcript of the hearing during which the family court received evidence pertaining to this issue or Bernstein’s written testimony. Without a reporter’s transcript or similar substitute, we must presume the evidence supported the family court’s finding there was no reason to disqualify Bernstein and, therefore, we affirm the denial of his disqualification motion.

In an attempt to avoid this result, Avila argues a transcript of the hearing and Bernstein’s written testimony are unnecessary because this is a purely legal issue based solely on Hopper’s expert witness declaration. We disagree. While the expert witness declaration is evidence that Bernstein was Harada’s retained expert and ex parte communications occurred, other evidence was presented that he was not retained and there were no improper communications. Thus, a disputed issue of fact existed on both issues. On this record, we cannot say the family court erred in impliedly finding, in denying Avila’s motion, that Bernstein was not a retained expert and no improper communications occurred.

DISPOSITION

The family court’s order is affirmed. Costs on appeal are awarded to Harada.

HILL, P.J.

WE CONCUR:

LEVY, J.

MEEHAN, J.