Filed 9/16/20 Dunlap v. Stanley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GREGORY R. DUNLAP,

Plaintiff and Appellant,

v.

HEATHER J. C. STANLEY,

Defendant and Respondent.

F077153

(Super. Ct. No. S1500CV279011)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield and Thomas S. Clark, Judges.

Law Office of Joseph D. Bussone and Joseph D. Bussone for Plaintiff and Appellant.

Clifford & Brown, John R. Szewczyk, Michael O’Dell; Zimmer & Melton, T. Mark Smith, and Dennis P. Gallagher II for Defendant and Respondent.

-ooOoo-

Gregory R. Dunlap appeals from a judgment in a legal malpractice action against his former attorney, Heather J. C. Stanley. Dunlap was awarded $2,088 based on improper billing by Stanley. All other claims were resolved in Stanley’s favor.

This matter arose from a divorce case filed in 2001. The marriage was terminated in 2003 and a judgment on reserved issues was entered in 2006, but postjudgment proceedings continued until 2012. Stanley was the fourth attorney to represent Dunlap in the family court and the third to be sued by him for malpractice. Dunlap’s previous lawsuits were unsuccessful; one of the attorneys obtained a defense verdict and the other prevailed on summary judgment.

The trial in this case was trifurcated. The first phase (Phase I) concerned the allegation Stanley was negligent in failing to file a certain type of motion in the divorce proceedings. The trial court ruled Dunlap’s theory of liability was nonviable as a matter of law. In the second phase (Phase II), which was a jury trial on a statute of limitations defense, the trial court entered a directed verdict for Stanley. The third phase (Phase III) was a bench trial on billing issues.

Dunlap assigns error to the rulings in Phases I and II. With regard to Phase III, he contends the trial court erroneously denied his motion for a mistrial. We affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Preliminarily, it is noted Dunlap’s briefing recounts some of the family court proceedings in extensive detail. Given the issues on appeal, such minutiae are omitted from this summary. Additional background information is set forth in the Discussion, post.

Dunlap and his former spouse (the ex-wife) were married in 1982 and separated in 2001. The marriage produced two children, both of whom were minors when the ex-wife filed for divorce. Attorney Bruce Blythe represented Dunlap in the divorce proceedings until the parties’ marital status was terminated.

On April 30, 2003, the family court entered a judgment of dissolution (status only) and reserved jurisdiction “over all other issues.” The reserved issues included the division of assets and child support. One of the children had reached the age of majority in 2002, but the other child did not turn 18 until 2005.

In May 2003, attorney Donald Butz replaced Blythe as Dunlap’s counsel of record. A trial commenced seven months later, but numerous posttrial issues and proceedings caused the case to drag on for several years. On August 8, 2006, the family court entered its judgment on the reserved issues (the 2006 judgment). The 2006 judgment required Dunlap to pay the ex-wife approximately $14,000 in child support arrearages, $15,000 in attorney fees, $17,000 in spousal support arrearages, and $167,000 to offset what was found to be an unequal division of community assets in Dunlap’s favor (collectively, the equalizing payment).

On August 22, 2006, Butz filed a motion on Dunlap’s behalf. The motion requested two forms of relief: the granting of a new trial pursuant to Code of Civil Procedure section 657 and “that the [2006 judgment] should be set aside pursuant to Code of Civil Procedure [s]ection 473.” The latter request was impliedly made pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)).

In November 2006, the family court issued a minute order stating the “motion for new trial” was denied and instructing the ex-wife “to prepare judgment for signature.” (Capitalization omitted). The order did not mention section 473(b). However, the parties’ ensuing conduct demonstrated their understanding that no part of the motion had been granted. Years later, Dunlap would argue the language regarding preparation of the “judgment” conveyed the family court’s intention to grant relief under section 473(b). The merits of his argument are at issue in this appeal.

In January 2007, Dunlap retained attorney Michael Kilpatrick to challenge the 2006 judgment. In written correspondence, Kilpatrick opined the deadline for filing a notice of appeal had likely passed, but he agreed to file the notice anyway. On January 18, 2007, Kilpatrick prepared a notice of appeal and billed Dunlap 0.3 hours for his work. However, the document was never filed with the court.

On February 1, 2007, Kilpatrick advised Dunlap in writing that his appeal rights had expired and outlined alternative strategies for attacking the 2006 judgment. The next day, Kilpatrick substituted into the case in place of attorney Butz. In letters dated February 22, 2007, and March 21, 2007, Kilpatrick reiterated his position regarding Dunlap’s appeal rights and further opined there were “numerous errors and/or omissions associated with the representation received in this matter by [attorney Butz].”

In July 2007, Kilpatrick filed a motion to set aside the 2006 judgment pursuant to Family Code section 2120 et seq. He later assisted Dunlap in drafting a complaint against Butz for professional negligence but declined to represent him in the matter. Dunlap sued Butz in August 2007 and eventually lost at trial (the jury returned a defense verdict in November 2008).

Kilpatrick’s motion to set aside the 2006 judgment was denied. Later, the family court granted a motion filed by the ex-wife to enforce the judgment. Those outcomes caused the relationship between Kilpatrick and Dunlap to deteriorate, and Kilpatrick substituted out of the case in September 2008. In December 2008, the family court appointed a receiver to oversee the sale of real property to satisfy the 2006 judgment.

Dunlap soldiered on in propria persona, filing additional motions challenging the 2006 judgment and other postjudgment rulings. He persisted even after satisfying the judgment in full, which occurred in 2009. In August 2010, he consulted with respondent Stanley regarding potential “post judgment modification motions.” In a retainer letter dated September 21, 2010, Stanley acknowledged being retained “to represent [Dunlap] in a post-judgment modification proceeding against [his] former wife.”

On April 27, 2011, Stanley filed what was labeled as a “Reset Motion to Set Aside Further Judgment; and Render Receivership Void.” The motion was based, in relevant part, on the family court’s November 2006 order denying the new trial/set aside motion filed by Butz. Stanley argued the family court had only partially ruled on Butz’s motion and never addressed the request to set aside the 2006 judgment pursuant to section 473(b). Therefore, according to Stanley’s argument, the section 473(b) motion was “still pending” and Dunlap was entitled to have it reset for hearing.

Stanley’s motion was denied. The family court found the November 2006 order constituted “a ruling on all issues.” In October 2011, Stanley withdrew from the case as permitted by Code of Civil Procedure section 285.1. Her withdrawal led to a billing dispute. Dunlap had paid a $10,000 retainer and believed he was entitled to a refund of at least several thousand dollars.

Proceeding in the divorce case as a self-represented litigant, Dunlap continued filing motions into the early part of 2012. In May 2012, after abandoning his efforts in the family court, Dunlap sued Kilpatrick for malpractice. He alleged Kilpatrick could have timely appealed the 2006 judgment but neglected to do so. Kilpatrick was awarded summary judgment on a statute of limitations defense.

On March 27, 2013, Dunlap filed a complaint against Stanley in the San Luis Obispo Superior Court. The case was promptly transferred to Kern County. Dunlap initiated the lawsuit without representation but soon retained attorney Joseph Bussone, who continues to represent him in this appeal.

Dunlap’s complaint alleged causes of action for breach of contract, “common counts” for money had and received, professional negligence, fraud, and “intentional tort” (which in substance was a claim for breach of fiduciary duty). (Capitalization omitted.) The fraud allegations were later withdrawn. The remaining claims were based on three theories: Stanley “fail[ed] to refund unearned legal fees,” committed malpractice by not filing a motion on Dunlap’s behalf pursuant to Code of Civil Procedure section 473, subdivision (d) (section 473(d)), and failed “to timely advise [Dunlap] regarding his legal malpractice claim(s) against [Kilpatrick].”

In February 2015, the parties stipulated “that certain issues be trifurcated and advanced for early determination ….” Phase I would consist of written submissions and oral argument on “the legal issues of whether the [2006 judgment], or any other ‘judgment,’ in the underlying dissolution matter was or is void and/or correctable for clerical error, and thus susceptible to an attempted attack pursuant to … section 473(d).” In Phase II, a jury would decide “the issue of when the statute of limitations expired with respect to [Dunlap’s] claims of legal malpractice against his former counsel, Michael Kilpatrick.” Whatever issues remained after Phases I and II would be resolved in Phase III.

In Phase I, the trial court ruled the 2006 judgment was not void and did not contain clerical errors subject to correction under section 473(d). Therefore, Stanley was not liable for failing to file a section 473(d) motion on Dunlap’s behalf. We explain Dunlap’s legal theory and the basis for the ruling in our Discussion, post.

The issue in Phase II was the accrual point of Dunlap’s cause of action for professional negligence against Kilpatrick. Such claims must be filed within one year of the date when the plaintiff knew or should have known “the facts constituting the wrongful act or omission.” (Code Civ. Proc., § 340.6, subd. (a).) Dunlap claimed Stanley was liable for not advising him of Kilpatrick’s alleged negligence in failing to appeal the 2006 judgment. The jury was to decide whether Dunlap was aware of Kilpatrick’s failure to file a notice of appeal before September 21, 2009, i.e., more than one year prior to establishing his attorney/client relationship with Stanley.

On cross-examination, Dunlap admitted Kilpatrick informed him no appeal had been filed during a meeting in March 2007. Based on this admission and other testimony, Stanley moved for a directed verdict. The motion was granted.

Phase II ended in September 2016. In December 2016, the trial court notified the parties that the case was being reassigned to a different judge. Phase III began eight months later, in August 2017.

Beginning August 11, 2017, and continuing on August 23 and 28, 2017, the parties argued motions in limine. On the final day of in limine rulings, Dunlap waived his right to a jury trial. The bench trial commenced with him being called as the first witness. After taking the stand, Dunlap immediately moved for a mistrial. He relied on the holding in European Beverage, Inc. v. Superior Court (1996) 43 Cal.App.4th 1211, i.e., “a party is entitled to have the same judge try all portions of a bifurcated trial that depend on weighing evidence and issues of credibility, and that if that judge is unavailable to do so, a mistrial must be declared.” (Id. at p. 1213.)

The trial court found Dunlap had acted in bad faith and his delay in raising the issue constituted a waiver. The motion was therefore denied. Trial resumed and Stanley was found to have breached the terms of her retainer agreement, as well as her fiduciary duties, by charging Dunlap $2,088 for unauthorized tasks.

In December 2017, the judgment from which this appeal is taken was entered. Dunlap’s notice of appeal was timely filed in March 2018 following the denial of a motion for new trial.

DISCUSSION

1. Phase I

A. Additional Background

The Honorable Frank A. Hoover, now retired, presided over the divorce case until approximately November 2006. On April 3, 2006, Judge Hoover directed counsel for the ex-wife to prepare a proposed judgment on the reserved issues. The ex-wife’s attorney drafted and submitted what became the 2006 judgment, which consists of a Judicial Council form and approximately 13 pages of attached findings, conclusions, and incorporated exhibits.

Judge Hoover signed the judgment on May 3, 2006, but it was not filed until August 8, 2006. The notice of entry of judgment was served on the latter date. On August 17, 2006, Butz filed a notice of intention to move for a new trial.

On August 22, 2006, Butz filed a notice of motion using a Judicial Council form required for use in family law matters. Attached to the form was a four-page declaration by Dunlap and a three-page memorandum of points and authorities. In the limited space available on the first page of the form, the motion was labeled “New Trial & Set Aside Judgment Pursuant to CCP Section 473.” On the fourth page of the form, Code of Civil Procedure section 657 was cited as the authority for requesting a new trial. The attachments referenced “mistake, inadvertence, surprise, or excusable neglect,” thus indicating reliance upon section 473(b) for the request to set aside the judgment.

The motion alleged opposing counsel had submitted the proposed judgment to Judge Hoover without providing a copy to Butz or Dunlap for approval of its content and form. Regarding section 473, the points and authorities argued the judgment “contained numerous errors” and “was entered through mistake.” There were no allegations of a mistake made by Dunlap or Butz. All mistakes were attributed to opposing counsel and/or the family court.

With regard to the motion for new trial, the points and authorities argued for relief on grounds of “irregularity in the proceedings … by which [Dunlap] was prevented from having a fair trial; accident or surprise which ordinary prudence could not have guarded against; and insufficiency of the evidence to justify the decision.” Dunlap’s attached declaration identified numerous alleged “errors and omissions,” most of which pertained to the amount of the equalizing payment.

The motion was heard on September 26, 2006, but the record on appeal does not contain a transcript of the hearing. On or about November 7, 2006, Judge Hoover issued a written decision. We quote the text verbatim:

“THE COURT REACHES THE FOLLOWING DECISION: ON [DUNLAP]’S MOTION FOR A NEW TRIAL.

“THE COURT MAKES THE FOLLOWING FINDINGS AND ORDERS:

“GREGORY DUNLAP (RE-1) MOTION FOR NEW TRIAL IS DENIED.

“EACH PARTY SHALL BEAR THEIR OWN ATTORNEY FEES AND COSTS.

“[EX-WIFE] TO PREPARE JUDGMENT FOR SIGNATURE.

“THE DECISION IS MAILED TO PARTIES, NOVEMBER 7, 2006.”

Around the time of the ruling, Judge Hoover was reportedly reassigned to the trial court’s criminal division pending his retirement. Counsel for the ex-wife later prepared a document entitled “Findings and Order After Hearing,” which consisted of a Judicial Council form and attachment that read, “(1) [Dunlap]’s Motion For New Trial is denied. [¶] (2) Each party shall bear their own attorney fees and costs.” The order was signed by the Honorable H. A. Staley and also by Butz to indicate his approval as to content and form.

In a letter from Butz to Dunlap dated January 23, 2007, Butz opined that Judge Hoover “never ruled on the motion to set aside the Judgment,” i.e., the request for relief pursuant to section 473(b). Butz suggested Kilpatrick “might try filing a motion for clarification or an amended motion to set aside and try to get Judge Hoover to rule.” Years later, Stanley adopted Butz’s theory when she argued the section 473(b) motion was “still pending.” The family court rejected the argument, finding “Judge Hoover made a ruling on all issues.”

When Dunlap sued Stanley for malpractice, he claimed she should have filed a motion challenging the 2006 judgment under section 473(d). That provision authorizes a court to “correct clerical mistakes in its judgment or orders” and “set aside any void judgment or order.” (§ 473(d).) According to Dunlap’s new theory, Judge Hoover granted attorney Butz’s section 473(b) motion, meaning the 2006 judgment was set aside and thus rendered “void.”

Dunlap’s theory was based on his own purported interpretation of the November 7, 2006, order, i.e., the one expressly denying the motion for new trial. He focused on the second to last sentence: “PETITIONER [the ex-wife] TO PREPARE JUDGMENT FOR SIGNATURE.” Dunlap argued those six words were Judge Hoover’s way of saying the motion to set aside the judgment pursuant to section 473(b) was being granted and the ex-wife needed to draft a new judgment for his signature.

Stanley’s counsel described the theory as a “fantasy” and argued it was inconceivable that a retiring judge would have expressed his intention to set aside a judgment using a “riddle” for the parties and other judges to solve in the future. The trial court agreed. In its statement of decision, it said Dunlap’s theory “does not make sense and is not supported by the evidence. If Judge Hoover felt that his previous ruling [w]as incorrect he would have granted the set-aside motion and reheard the matter.”

Dunlap further alleged the 2006 judgment was void because Judge Hoover did not issue a tentative decision in accordance with the California Rules of Court. The trial court rejected this argument. Dunlap also claimed there were “various jurisdictional problems,” but his briefing on that issue lacked citations to legal authority. Stanley and the trial court interpreted the bulk of his contentions as allegations of clerical error.

Stanley’s opening brief in Phase I noted Dunlap had “failed to plead any specific clerical error(s),” which is confirmed by the record on appeal. She further alleged his failure “to identify any specific errors in his discovery responses.” Stanley quoted an excerpt from Dunlap’s deposition, alleging he had testified, “‘I believe it’s clerical error if the judgment does not follow the decision of the court.’”

Dunlap’s Phase I brief alleged the existence of clerical error in general terms, but he identified only one error in his argument section devoted to this topic. The 2006 judgment awarded the ex-wife household furnishings collectively valued at “$5,0000.00” in excess of the value of household furnishings awarded to Dunlap. Dunlap argued there was an ambiguity in terms of whether the correct figure was $5,000 or $50,000.

In Stanley’s Phase I reply, she acknowledged the typographical error but pointed out the correct figure, $5,000, appeared in an incorporated exhibit to the judgment and was consistent with the total sum of the equalizing payment. The reply also addressed Dunlap’s allegations of “jurisdictional infirmities” (capitalization omitted), construing them as claims of clerical error and disputing the legitimacy of such characterizations. For example, although Dunlap and the ex-wife had two children together, the 2006 judgment says the “marriage produced one minor child.” Stanley argued “the standard practice for lawyers who practice family law is to draft the court’s order as of the time of trial.” (Original underscoring.) In the above example, there was only one minor child at the time of trial; the other “child” was 19 years old.

The trial court ruled the 2006 judgment “does not contain ‘clerical errors’ subject to correction within the meaning of … § 473(d).” The statement of decision provides, in relevant part:

“… Circumstances changed from the time that the trial took place on December 17, 2003 and the time that the judgment was signed in August of 2006. The judgment reflects the accurate state of the case at the time of the trial. The statement of facts and law attached to the 2006 Judgment … demonstrate those facts. The fact that circumstances had changed over the passage of time does not mean the judgment on the case tried before the court contained clerical errors.…

“There does appear to be a typographical error in paragraph 11 of the judgment. The attack on paragraph 11(b) of the 2006 Judgment is based upon [Dunlap’s] assertion that the 2006 Judgment contains a clerical error ‘with regard to the $5,000.00-versus-$50,000.00 ambiguity in the judgment.’ … The worksheet used for determining the amount of the equalizing payment shows the correct value of the furnishings as $5,000.00 [citation]. The inference that can be drawn is that the comma was in the right place and the extra zero was simply a typographical error. Recalculation of the numbers in … the 2006 Judgment and attachment, leads to the exact same equalization payment as stated within the papers attached to the 2006 Judgment. [Dunlap] satisfied the judgment and the court record does not reflect that [Dunlap] ever complained about this error.”

B. Analysis re: Voidness

Dunlap maintains “Judge Hoover’s November 7, 2006 minute order is presumptively correct, and his statement ‘petitioner to prepare judgment for signature’ is a clear indication that he intended on setting aside the judgment on reserved issues and that he wanted counsel to submit a correct substitute judgment replacing the prior erroneous one entered.” As we have explained, he is referring to a sentence preceded by one that states, “motion for new trial denied.” (Capitalization omitted; all further quotations from this order omit capitalization.) Dunlap’s argument continues: “That order clearly shows on its face that Judge Hoover intended and authorized the submission of another subsequent judgment replacing the entered judgment containing errors, essentially voiding the latter.” Ergo, Stanley could have filed a potentially successful motion based on section 473(d) by arguing the 2006 judgment was void.

“A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the ‘“entire absence of power to hear or determine the case”’ resulting from the ‘“absence of authority over the subject matter or the parties.”’ [Citation.] To be sure, a court that ‘“‘acts contrary to [its] authority’”’ ‘“to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites”’ is often said to lack ‘jurisdiction.’ [Citation.] But such acts do not render the court’s ensuing judgment or order void.” (People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226, 233; accord, Lee v. An (2008) 168 Cal.App.4th 558, 563–564.)

Superior courts have jurisdiction in proceedings under the Family Code. (Fam. Code, § 200.) Pursuant to Family Code section 2010, “the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the following: [¶] (a) The status of the marriage …. [¶] … [¶] (c) The support of children for whom support may be ordered …. [¶] (d) The support of either party. [¶] (e) The settlement of the property rights of the parties. [¶] [and] (f) The award of attorney’s fees and costs.”

If a court has fundamental jurisdiction but acts in excess of its jurisdiction, “‘its act or judgment is merely voidable.’” (Torjesen v. Mansdorf (2016) 1 Cal.App.5th 111, 117.) “Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgments and orders may not.” (People v. The North River Ins. Co., supra, 48 Cal.App.5th at p. 234.)

“There is no time limit to attack a judgment void on its face.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.) Whether a judgment is void is a legal question subject to de novo review. (Id. at p. 1020; People v. The North River Ins. Co., supra, 48 Cal.App.5th at p. 232.) The notion of a lawyer committing malpractice by not filing a section 473(d) motion appears to be unprecedented in the case law, as does the argument an order setting aside a judgment pursuant to section 473(b) renders the judgment “void” within the meaning of section 473(d). We will assume (without deciding) both are theoretically tenable, but we struggle to envision a scenario wherein a lawyer would file a section 473(d) motion to set aside a judgment that had already been set aside on other grounds. That leaves the question of judicial intent, which is also reviewed de novo. (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1429.)

The order issued by Judge Hoover on November 7, 2006, is peculiar. As the parties noted in their Phase I briefing, Dunlap’s request for a new trial was denied by operation of law the previous month. Therefore, it was arguably redundant for the order to say “motion for new trial denied.” Furthermore, directing the ex-wife to “prepare judgment for signature” does not make sense in this context because the judgment had already been prepared and signed.

“‘The true measure of an order … is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citations.] In construing orders they must always be considered in their entirety, and the same rules of interpretation will apply in ascertaining the meaning of a court’s order as in ascertaining the meaning of any other writing. If the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding, and the court’s intention in the making of the same.’” (In re Ins. Installment Fee Cases, supra, 211 Cal.App.4th at pp. 1429–1430.)

Judge Hoover’s order is susceptible of at least two interpretations. Therefore, under the same rules applicable to any writing, the order must be construed to make it “‘lawful, operative, definite, reasonable and capable of being carried into effect,’” and we must avoid an interpretation that would make it “‘extraordinary, harsh, unjust, inequitable or which would result in absurdity.’” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 989, quoting Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730; see Estate of Careaga (1964) 61 Cal.2d 471, 475 [“the ‘same rules apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing’”].)

Only one interpretation satisfies the above criteria. The phrase “motion for new trial” was a shorthand reference to the entire set of moving papers. Since the motion was labeled as one for dual relief, i.e., “New Trial & Set Aside Judgment Pursuant to CCP Section 473,” Judge Hoover’s denial of the motion was a refusal to grant either form of relief. Ordinarily, the task of preparing an order granting or denying a noticed motion is assigned to the prevailing party. (Cal Rules of Court, rule 3.1312(a).) It can be assumed Judge Hoover inadvertently used the word “judgment” instead of “order” when giving this pro forma directive.

It is possible Judge Hoover overlooked the section 473(b) request and did not rule on that aspect of the motion. However, construing the order in this manner renders it entirely pointless and unlawful. Since more than 60 days had elapsed since service of the notice of entry of judgment, “the power of the court to rule on a motion for a new trial” had expired. (Code Civ. Proc., former § 660; Stats. 2018, ch. 317, § 1.)

Dunlap’s interpretation of the order is patently unreasonable. Motions are often summarily denied, but no judge would grant a motion to set aside a judgment by cryptically instructing the losing party to “prepare judgment for signature.” If Judge Hoover’s intention was to grant the motion, he would have at least given the parties some form of guidance regarding how to proceed—especially given the litany of grievances set forth in Dunlap’s moving papers. To accept Dunlap’s argument would make the order “extraordinary … and absurd.” (In re Marriage of Falcone & Fyke, supra, 203 Cal.App.4th at p. 989.)

Our conclusion is reinforced by the stated basis for the section 473(b) motion. As noted, Dunlap complained of mistakes by opposing counsel and the family court. Section 473(b) authorizes relief from a judgment taken against the moving party “through his or her mistake, inadvertence, surprise, or excusable neglect.” (Italics added.) Alleging mistake or inadvertence by the court “is no more than an allegation of judicial error.” (Lavrischeff v. Blumer (1978) 77 Cal.App.3d 406, 411.) Once a judgment has been entered, the court “may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.” (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606; see Code Civ. Proc., §§ 657 [motion for new trial], 663 [motion to vacate the judgment].) Had Judge Hoover been inclined to grant relief based on the “numerous errors and omissions” alleged in Dunlap’s declaration, it is most likely a new trial would have been granted on the grounds cited in his points and authorities.

Dunlap argues we must presume the order is “correct” and thus assume Judge Hoover deliberately used the word “judgment” instead of “order” when instructing the ex-wife to “prepare judgment for signature.” We disagree. “An appealed-from judgment or order is presumed correct.” (In re Sade C. (1996) 13 Cal.4th 952, 994, italics added.) This principle relates to an appellant’s burden to affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) When a judgment is challenged as void on its face, “[e]very presumption is in favor of the validity of the judgment, and any condition of facts consistent with the validity of the judgment will be presumed to have existed, rather than one which will defeat the judgment.” (Canadian etc. Co. v. Clarita etc. Co. (1903) 140 Cal. 672, 674; accord, Johnson v. Hayes Cal. Builders, Inc. (1963) 60 Cal.2d 572, 578.) Pursuant to the foregoing analysis, we conclude Dunlap has failed to meet his burden.

C. Analysis re: Clerical Error

As an alternative theory, Dunlap argued Stanley could have filed a motion under section 473(d) to correct clerical errors in the 2006 judgment. “The test which distinguishes clerical error from possible judicial error is simply whether the challenged portion of the judgment was entered inadvertently (which is clerical error) versus advertently (which might be judicial error, but is not clerical error). [Citation.] Unless the challenged portion of the judgment was entered inadvertently, it cannot be changed post judgment under the guise of correction of clerical error.” (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117.) “If the court misconstrued the evidence before it, or misapplied the law applicable to the facts disclosed by the evidence, or was even misled by counsel, such an error was in no sense a clerical error ….” (Lankton v. Superior Court (1936) 5 Cal.2d 694, 696, italics added; accord, Tokio Marine & Fire Ins. Corp., supra, at p. 118 [quoting Lankton].)

Ordinarily, the existence or absence of clerical error is reviewed under the abuse of discretion standard because the initial determination is made by the judge who issued the order or judgment. (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035; see Bastajian v. Brown (1941) 19 Cal.2d 209, 215 [“The trial court’s finding upon conflicting evidence that a clerical error exists and the nature thereof, is conclusive upon this court”]; Meyer v. Porath (1952) 113 Cal.App.2d 808, 811 [“A finding, express or implied … that a clerical error exists in the judgment in question is, if supported by substantial evidence, a conclusive finding which binds an appellate court on review”].) Here we have the highly unusual scenario of one judge, in the context of a legal malpractice action, trying to determine whether another judge’s alleged errors were clerical or judicial. Dunlap argues independent review is necessary because whether the 2006 judgment was “susceptible to an attempted attack” under section 473(d) is a legal issue. As we explain, his claim fails regardless of the standard of review.

At page 50 of his opening brief on appeal, Dunlap presents his clerical error argument under a heading that reads: “The Underlying Judgment On Reserved Issues Contained Clerical Error(s) Subject To Correction At Any Time By Either [Stanley] (Or Her Predecessor), And It Was Legal Error For The Trial Court To Rule Otherwise In Phase I.” (Some capitalization omitted.) Following citations to case law, Dunlap makes two sweeping assertions of error by the trial judge. He then concludes his argument with this statement on page 51: “Appellant’s Statement of Facts clearly shows that there were multiple clerical errors which were subject to correction at any time, and Stanley never attempted to correct any of them as she was hired to do.”

Dunlap’s statement of facts is 31 pages in length and contains 39 footnotes. We are neither inclined nor obligated to search for whatever material might possibly support his claim. (See Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294 [“we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument”]; cf. ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1270 [“it is not our responsibility to scour the appellate record for evidence to support a party’s position”]; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [“The appellate court is not required to search the record on its own seeking error”].) “One cannot simply say the court erred, and leave it up to the appellate court to figure out why.” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

Appellate briefs must state each point under a separate heading or subheading. (Cal. Rules of Court, rule 8.204(a)(1)(B).) “[O]therwise, the point will be forfeited.” (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) A logical corollary is that all argument regarding an issue should be located under its separate heading, not scattered throughout the brief and certainly not within the statement of facts. A leading California appellate practice guide warns: “Outright argument on the various issues should be reserved for the discussion portion of the brief.… ‘[A]rgumentative presentation’ of the facts disregards the ‘fundamental rules of appellate review.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 9:140, p. 9–42.)

“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) “These well-settled rules of appellate practice are not mere technicalities. They ensure that opposing parties are fairly apprised of contentions so as to afford a full and fair opportunity to respond.” (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 555.)

Stanley rightfully complains of Dunlap “generically claiming several supposed ‘clerical errors’” in his “lengthy recitation of facts.” She is also correct that most of those contentions were never asserted in the trial court. For that reason alone, the contentions are deemed forfeited. (See Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592 [An appellate court will “‘ignore arguments, authority, and facts not presented and litigated in the trial court.’ [Citation.] Such arguments raised for the first time on appeal are generally deemed forfeited”]; In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418 [“As a rule, parties are precluded from urging on appeal any points that were not raised before the trial court”].)

We will briefly discuss the trial court’s lone finding of a “typographical” error. The 2006 judgment states there is a “$5,0000.00” difference in the division of community property between the value of household furnishings awarded to the ex-wife and the value of household furnishings awarded to Dunlap. An attached exhibit lists the value as $5,000, which was the figure used in calculating Dunlap’s monetary obligation under the judgment, i.e., the equalizing payment. The trial court found $5,000 was the correct figure and thus concluded the typographical error was immaterial. Accordingly, it ruled the “5,0000.00” misprint was not a “‘clerical error[]’ subject to correction within the meaning of … § 473(d).”

“‘“The term ‘clerical error’ covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. If an error, mistake, or omission is the result of inadvertence, but for which a different judgment would have been rendered, the error is clerical and the judgment may be corrected to correspond with what it would have been but for the inadvertence.”’” (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204, italics added.) Therefore, if $5,000 was the correct figure, the “$5,0000.00” typo was not a correctable clerical error for purposes of section 473(d).

The record on appeal contains a transcript from a posttrial hearing on March 30, 2004. During the hearing, Judge Hoover ruled: “the Court finds that the furniture difference that the two parties described to be $5,000, in [the ex-wife’s] favor. [¶] That meaning the—she has all the furniture in the [family residence] and he all the furniture in the [beach] house. And I find that’s $5,000 in her favor.” This constitutes substantial evidence supporting the trial court’s finding and shows its conclusion regarding materiality is not outside the bounds of reason, i.e., there was no abuse of discretion. To the extent de novo review might apply here, we independently conclude the “$5,0000.00” typo was not the kind of “clerical mistake” upon which the claims against Stanley could have been based. (§ 473(d); see Aspen Internat. Capital Corp. v. Marsch, supra, 235 Cal.App.3d at p. 1204; see also Civ. Code, § 3533 [“The law disregards trifles”].)

D. Additional Undeveloped Claims

On page 15 of Dunlap’s opening brief on appeal, in a parenthetical sentence within his statement of facts, he references “an underlying due process claim as to the 2006 judgment.” There is an accompanying footnote containing argument and citations to statutes, case law, and the California Rules of Court. Whatever its intended purpose, this material will not be considered as grounds for reversal.

“Footnotes are not the appropriate vehicle for stating contentions on appeal.” (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) Since the rules of court require arguments to be set forth in “discrete sections with headings summarizing the point,” “[w]e do not have to consider issues discussed only in a footnote.” (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 160; accord, Golden Door Properties, LLC v. County of San Diego, supra, 50 Cal.App.5th at p. 555.) Accordingly, we treat as forfeited all attempted claims and issues “not distinctly set forth and developed under a separate heading.” (Hall v. Department of Motor Vehicles (2018) 26 Cal.App.5th 182, 193.)

In Dunlap’s reply brief, he devotes over six pages of discussion to arguing the 2006 judgment was void because Judge Hoover acted without subject matter jurisdiction. This argument was barely hinted at in his opening brief, and the phrase “subject matter jurisdiction” was never even used. To the extent any jurisdictional arguments can be inferred from isolated remarks in the opening brief, we consider the claims insufficiently developed and forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [“We discuss those arguments that are sufficiently developed to be cognizable. To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis”]; Hall v. Department of Motor Vehicles, supra, 26 Cal.App.5th at p. 193.)

Stanley’s brief notes Dunlap “presented several theories primarily premised upon jurisdiction” in the trial court, but on appeal “has narrowed his argument to the primary contention … that the 2006 Judgment was rendered void by Judge Hoover’s November 7, 2006, Minute Order ….” Stanley’s brief is tailored to the properly asserted claims in the opening brief. “When new arguments are raised in the reply brief, to which respondent has no opportunity to respond, we are not required to consider them.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 171; accord, Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [“an appellant’s failure to discuss an issue in its opening brief forfeits the issue on appeal”].) We therefore decline to consider any new issues raised by Dunlap in his reply brief, including the arguments concerning subject matter jurisdiction.

2. Phase II

We will briefly recapitulate our earlier summary of Phase II.

Kilpatrick represented Dunlap from approximately January 2007 to September 2008. Although Kilpatrick believed Dunlap’s appeal rights had expired in 2006, he agreed to file a notice of appeal on his behalf. For reasons unknown, Kilpatrick did not follow through on the task.

In 2012, Dunlap sued Kilpatrick for malpractice. Dunlap alleged his appeal rights in relation to the 2006 judgment did not expire until February 2007. Having consulted with Kilpatrick as early as December 2006, he blamed Kilpatrick for the lost opportunity to appeal. Kilpatrick prevailed on a statute of limitations defense.

Stanley represented Dunlap from approximately September 2010 to October 2011. In 2013, Dunlap sued Stanley for malpractice. Among other theories, Dunlap alleged Stanley was negligent in failing to advise him of a potential malpractice claim against Kilpatrick. In other words, Dunlap believed Stanley was responsible for him losing the case against Kilpatrick on a statute of limitations defense.

Stanley asserted her own statute of limitations defense, claiming Dunlap’s ability to sue Kilpatrick had expired before Dunlap hired her. Phase II was a jury trial on the issue of whether Dunlap knew or should have known of Kilpatrick’s failure to file a notice of appeal prior to September 2009. (See Code Civ. Proc., § 340.6, subd. (a) [one-year discovery rule for professional negligence claims].) Stanley moved for a directed verdict, and the motion was granted. Dunlap’s claim against Stanley was deemed time-barred, so the issue of whether Dunlap ever had a viable claim against Kilpatrick was never litigated.

A. Additional Background

The Phase II jury trial consisted of testimony by Kilpatrick and Dunlap. Testifying first, Kilpatrick answered questions about his representation of Dunlap in 2007 and 2008. He authenticated several letters they had exchanged, and the letters were admitted into evidence. The letters authored by Dunlap showed he became increasingly antagonistic toward Kilpatrick over time, to the point of criticizing the quality of Kilpatrick’s representation.

In two letters authored by Kilpatrick, Dunlap was informed his appeal rights vis-à-vis the 2006 judgment had lapsed. One of those letters, dated March 21, 2007, proved to be especially significant. The letter purported to “memorialize the substance of the office conference that [Dunlap] and [Kilpatrick] had [on] March 14, 2007.” In the next paragraph, Kilpatrick wrote, “As you and I have discussed[,] the time limits of the appeal lapsed at the very latest on or about November 6, 2006. Therefore, an appeal cannot be perfected in any measure whatsoever[,] as it would be jurisdictionally defective and the Court of Appeals on its own motion would dismiss any appeal that you file.”

Stanley rested her case at the conclusion of Kilpatrick’s testimony. Dunlap then testified on his own behalf. On direct examination, Dunlap was asked, “When did you learn the Notice of Appeal had not been filed?” He answered, “In 2012.”

On cross-examination, Stanley’s trial counsel produced a certified copy of the first amended complaint (complaint) filed on October 23, 2012, in the malpractice action against Kilpatrick. This document, which was admitted into evidence, had been filed on Dunlap’s behalf by his attorney, Joseph Bussone. Stanley’s counsel elicited testimony from Dunlap confirming the complaint reflected the factual information he had provided to Bussone, as well as the fact Dunlap had reviewed it before it was filed (“I don’t remember but I’m sure I did”).

Setting the stage for a dramatic moment, Stanley’s counsel asked, “You told him [attorney Bussone] nothing but true and accurate information?” Dunlap replied, “I believe so, yes.” Shortly thereafter, Dunlap was asked to read paragraph 24 of the complaint out loud. This exchange followed:

“[DUNLAP: (Reading from the complaint)] ‘On or about March 14, 2007, [Dunlap] met with [Kilpatrick] at [Kilpatrick]’s law office and [Kilpatrick] first informed [Dunlap] that no appeal had been filed. [Kilpatrick] misrepresented to [Dunlap], at that time, that [Dunlap]’s appellate rights had long ago lapsed and/or expired on or about November 6, 2006 when, in fact, [Dunlap]’s appellate rights actually did not lapse and/or expire until on or about February 5, 2007, while [Kilpatrick’s law office was] serving as [Dunlap]’s attorney of record.’

“[COUNSEL:] All right. The first sentence again on March—paraphrasing it, on March 14, 2007 … Kilpatrick first informed [Dunlap] … that no appeal had been filed.

“Mr. Dunlap, were you telling the truth a few minutes ago[,] or does this refresh your memory as to what the truth is[,] or did you submit false information to Mr. Bussone to create a false first amended complaint? Which is it, sir?

“[DUNLAP:] [Stricken testimony]

“[COUNSEL:] Objection. Move to strike. Nonresponsive.

“THE COURT: Sustained. The answer is nonresponsive. Strike the answer.

“[COUNSEL:] Is this statement true?

“[DUNLAP:] Yes.

“[COUNSEL:] Thank you. I have no other questions.”

Redirect examination followed, but Dunlap did not retract his admission. On further cross-examination, Dunlap testified he had thought Kilpatrick filed the notice of appeal when he hired him, i.e., in January 2007. This was the series of questions and answers:

“[COUNSEL:] What did you think happened to that appeal between 2007 and 2011?

“[DUNLAP:] I figured by all his letters, he didn’t do it.

“[COUNSEL:] So you realized he didn’t file an appeal?

“[DUNLAP:] Well, obviously, from the letters, I got that.

“[COUNSEL:] I got that. He hadn’t filed an appeal and there’s a series of letters along the way that told you that?

“[DUNLAP:] Yeah, told me my rights are gone.”

The verdict form required the jury to provide a yes or no answer to one question: “Before September 21, 2009 did Mr. Dunlap know, or with reasonable diligence should he have discovered, the facts of Mr. Kilpatrick’s alleged wrongful act(s) or omission(s) and that he had sustained actual injury as a result of Mr. Kilpatrick’s alleged wrongful act(s) or omission(s)?” After the parties had rested, Stanley moved for a directed verdict of “Yes.” The motion was granted.

B. Analysis

A directed verdict is reviewed de novo. (Guillory v. Hill (2015) 233 Cal.App.4th 240, 249.) “A directed verdict in favor of a defendant is proper if, after disregarding conflicting evidence and drawing every legitimate inference in favor of the plaintiff, there is ‘“no evidence of sufficient substantiality to support a verdict in favor of”’ the plaintiff. … The reviewing court must view the evidence in the light most favorable to the plaintiff, resolve all conflicts in the evidence and draw all inferences in the plaintiff’s favor, and disregard conflicting evidence.” (Ibid.)

Dunlap basically contends his testimony on direct examination about first learning of Kilpatrick’s alleged negligence in 2012 was enough to warrant submission of the case to the jury. His briefing focuses on the difference between “judicial admissions” and “evidentiary admissions,” arguing the admission in his complaint against Kilpatrick fell into the second category. Stanley submits these arguments are misguided.

“A pleading in a prior civil proceeding may be offered as an evidentiary admission against the pleader.” (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061.) “Such an admission is an evidentiary admission, not a judicial admission, and may be rebutted with explanatory evidence from the party against whom the admission is offered.” (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1425, fn. 21.) Pursuant to these authorities, Dunlap argues his admission in the complaint against Kilpatrick was not conclusive and could be “explained away by other evidence.”

“A judicial admission is a party’s unequivocal concession of the truth of a matter, and removes the matter as an issue in the case.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48.) According to Dunlap, “[a] judicial admission occurs only when the factual admission is made in a pleading in the current action.” For this proposition he cites Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264 at page 1271 and Braverman v. Rosenthal (1951) 102 Cal.App.2d 30 at page 32. Neither case supports his assertion.

Judicial admissions are not limited to statements in pleadings. They occur in other contexts, such as “by stipulation during trial, or by response to [a] request for admission.” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.) A judicial admission can even be made by a party’s trial counsel during closing argument. (E.g., Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752 [“an oral statement by counsel in the same action is a binding judicial admission if the statement was an unambiguous concession of a matter then at issue and was not made improvidently or unguardedly”].)

In focusing on the effect of admissions made in pleadings in prior cases, Dunlap ignores his testimony on the witness stand. The complaint against Kilpatrick admitted that on March 14, 2007, Kilpatrick “first informed [him] that no appeal had been file[d]” and his appellate rights had expired “on or about November 6, 2006.” At trial, when asked if the statement was true, Dunlap’s testimony was “Yes.” This was an “unequivocal concession of the truth of a matter,” i.e., a “judicial admission” as defined in Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at page 48.

Dunlap’s admissions in the complaint and at trial corroborated Kilpatrick’s account of the same meeting as set forth in his letter of March 21, 2007, which was also in evidence. On further cross-examination, Dunlap made a second admission by testifying he “figured by all his letters” that Kilpatrick had not filed a notice of appeal.

“‘[I]f a party testifies deliberately to a concrete fact, not as a matter of opinion, estimate, appearance, inference, or uncertain memory, but as a considered circumstance of the case, his adversary is entitled to hold him to it.’” (Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162, quoting 30 Am.Jur.2d (1967) Evidence, § 1087, p. 241.) In Mikialian, the appellate court upheld the granting of a nonsuit under circumstances where the plaintiff’s admission of key facts in his deposition testimony directly contradicted his trial testimony. (Mikialian, supra, at pp. 154–155, 158, 162.) A motion for nonsuit is governed by the same standard as a motion for a directed verdict. (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 469; Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262–263.)

The same principle applies in the analogous context of summary judgment, i.e., “a party cannot rely on contradictions in his own testimony to create a triable issue of fact.” (Thompson v. Williams (1989) 211 Cal.App.3d 566, 573; accord, Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.) “Not every bald assertion rises to the dignity of substantial evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 654.) Given the unequivocal nature of Dunlap’s admissions, we conclude the motion for a directed verdict was property granted.

3. Phase III

A. Additional Background

The Honorable Lorna H. Brumfield presided over Phases I and II. At a case management conference held in September 2016, Judge Brumfield set the Phase III trial date for June 5, 2017. On December 6, 2016, the parties were notified that the presiding judge of the superior court had reassigned the case to the Honorable Thomas S. Clark for all purposes. The record on appeal reflects little or no case activity from that point through April 2017.

In May 2017, Stanley filed an ex parte application to continue the trial date. Dunlap opposed the request on various grounds, notably alleging “unreasonable delay.” At a hearing held on May 17, 2017, Judge Clark granted the request and rescheduled the trial for July 31, 2017.

The trial date was evidently rescheduled a second time and moved to August 28, 2017. A “Pre-Trial Conference Package” with written motions in limine was filed on August 7, 2017. Judge Clark began hearing the motions on August 11, 2017, and continued hearing them on August 23 and 28.

The motions in limine addressed, inter alia, a dispute regarding the scope of Phase III. Dunlap stated his intention to call expert witnesses and further litigate all theories of liability pleaded against Stanley in the complaint. Stanley argued the only matters left to be determined were the allegations of improper billing, i.e., claims for which the amount in controversy was potentially limited to $10,000.

On August 23, 2017, Judge Clark granted Stanley’s motion to limit the scope of Phase III to the alleged “billing irregularities” and to restrict the admission of expert testimony. Judge Clark also granted an Evidence Code section 352 motion regarding the status of Stanley’s law license. This ruling effectively prohibited Dunlap from informing the jury of Stanley’s pending disbarment.

On August 28, 2017, Dunlap waived his right to a jury trial. Judge Clark subsequently heard argument on a remaining motion in limine and issued a ruling. The bench trial commenced with Bussone calling Dunlap as the first witness. As soon as his client was sworn in, Bussone moved for a mistrial and served the moving papers. The proceedings were adjourned until the following day.

Dunlap’s motion was based on what he calls the “one judge rule,” referring to a common law doctrine also known as “‘same judge’ rule.” (European Beverage, Inc. v. Superior Court, supra, 43 Cal.App.4th at p. 1215 (European Beverage).) Generally speaking, parties are entitled to have the judge who hears the facts of a case be the one who renders the ultimate decision. The rule is exclusive to bench trials, but the same principle applies when the trier of fact is a jury. (Id. at pp. 1213–1214.)

Citing European Beverage, Dunlap claimed he was entitled to have Judge Brumfield preside over Phase III because she had made the rulings in Phases I and II. While arguing the motion, Bussone acknowledged Dunlap’s last-minute jury waiver was a strategic move designed to make the mistrial motion procedurally viable (“The principal reason we waived jury is so we can do this”). This gave context to an explanation he had given the previous day when asked why he no longer planned to call Stanley as the first witness: “In light of last week’s rulings and we just decided over the weekend that we were changing strategies as far as the jury was concerned.”

Judge Clark declined to grant a mistrial. The salient aspects of his ruling are as follows:

“… I’ll say in the last two weeks, the parties heard and the Court decided several contested—well, I’m sorry, several in limine motions. [Stanley’s counsel] characterized those as rulings all going against [Dunlap].

“I’m not sure if they all went against [Dunlap] but I would agree with the characterization that the outcome, in general, of those in limine motions were not favorable to [Dunlap]. However, at that point, this was still a jury trial and [Dunlap] did not have the rights that he is seeking to assert today.

“It may well be and I would strongly suspect that [Dunlap] had an interest in seeing what the results would be on the in limine rulings before deciding to waive a jury and thus triggering his right to object to the trial going forward before this Court but I believe that the rules allow that.

“And so that brings us to yesterday when the trial was scheduled to commence as a jury trial. Almost the first thing that occurred was [Dunlap]’s waiver of a jury trial. Defense reiterated their previous waiver of a jury trial. At that point, [Dunlap]’s counsel certainly knew that he intended to assert the rights that he’s now asserting in his motion for a mistrial.

“He already had in his briefcase fairly extensive typed up motions and exhibits. He could have and should have made an objection at that point and I think the Court would have had no alternative but to vacate the trial date and reassign the trial to Judge Brumfield.

“But with that knowledge, [Dunlap]’s counsel made the decision to go forward and argue another in limine motion for more than an hour and one would certainly suspect with an idea to see what the ruling was going to be. And only after receiving that ruling, which the Court believes was more adverse to [Dunlap] than it was to [Stanley], did [Dunlap] then wait until the first witness was sworn and then make the motion for mistrial.

“Although the delay between the waiver of the jury and the swearing of the witness and the making of the motion for a mistrial was fairly brief, it was not a matter of days or weeks. It was probably about a one- to two-hour delay.

“I do feel that that delay was entered into in bad faith and that it did, under all the circumstances, constitute a waiver of the right to object to the trial going forward in this Court and a waiver of any right [Dunlap] had to seek reassignment of the trial to Judge Brumfield.

“For those reasons, I will deny the motion for mistrial.”

B. Analysis

“We review a motion for mistrial for abuse of discretion. ‘“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” [Citations.] [Fn. omitted.]’ [Citation.]” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1248.) “[T]he trial judge, present on the scene, is obviously the best judge of whether any error was so prejudicial to one of the parties as to warrant scrapping proceedings up to that point.” (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 678.)

Dunlap argues the standard of review is de novo because the trial court’s ruling violated his due process rights and because his claim on appeal involves “the application of a law or its legal effect.” We are not persuaded. The applicability of the one judge/same judge rule is a question of law. However, due process rights can be waived or forfeited, and the trial court made a finding of waiver. (See United States v. Olano (1993) 507 U.S. 725, 731 [“‘a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it’”]; People v. Trujillo (2015) 60 Cal.4th 850, 856 [same].)

“Waiver is a question of fact for the trial court.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179.) An appellate court defers to a trial court’s factual findings if they are supported by substantial evidence, and it applies independent review to questions of law. (See Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) The standard of review for mistrial motions is as previously stated: “The decision to grant or deny a mistrial is within the discretion of the trial court, which may properly deny the motion if it is satisfied that no injustice will result from the occurrences about which the moving party complains.” (Santiago v. Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1335.)

Dunlap’s motion was based on the rule articulated in Guardianship of Sullivan (1904) 143 Cal. 462: “A party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury, and from the jury that hears the evidence, where it is tried with a jury.” (Id. at p. 467.) This rule is designed to protect “the right of a party to have the trier of fact observe his demeanor, and that of his adversary and other witnesses, during examination and cross-examination.” (Linsk v. Linsk (1969) 70 Cal.2d 272, 278–279.) A violation of this rule is considered a denial of due process, but the rights implicated can be waived. (Id. at p. 279; Guardianship of Sullivan, supra, at p. 467; European Beverage, supra, 43 Cal.App.4th at pp. 1213–1214.)

Few published cases have addressed the one judge/same judge rule, and European Beverage appears to be the leading authority on its application. There, a lawsuit concerning ownership interests in a corporation, and related tort claims, was bifurcated. The first phase was a bench trial on “equitable issues of accounting and constructive trust,” which ended with the judge finding the plaintiff to be a 50 percent owner of the corporation. A special master was assigned to conduct the accounting. (European Beverage, supra, 43 Cal.App.4th at pp. 1213–1214.)

Shortly before the second phase was set to begin, the trial judge became unavailable and the case was reassigned. The defendants promptly filed an ex parte application “for an order to prevent transfer of the case to a new trial judge, or alternatively, for a mistrial.” (European Beverage, supra, 43 Cal.App.4th at p. 1214.) The trial court denied the application, but the appellate court issued a peremptory writ of mandate “directing the superior court either to vacate its order transferring the case to a new trial judge or declare a mistrial.” (Id. at p. 1216.)

The holding of European Beverage is specific: “[I]n a court trial, absent a waiver or a stipulation to the contrary, a party is entitled to have the same judge try all portions of a bifurcated trial that depend on weighing evidence and issues of credibility, and … if that judge is unavailable to do so, a mistrial must be declared.” (European Beverage, supra, 43 Cal.App.4th at p. 1213.) Given this interpretation of the one judge/same judge rule, Stanley makes a compelling argument the rule was not implicated by the circumstances in this case.

Stanley reasons that Judge Brumfield’s rulings in Phases I and II were not dependent upon the weighing of evidence or issues of credibility. As Dunlap emphasizes in his own briefing, “Phase I was tried to the court before Judge Brumfield on strictly legal issues under Code of Civil Procedure section 473, subdivision (d).” (Original italics.) Phase II was a jury trial that ended with a ruling on a motion for directed verdict, but the ruling was based on a legal determination. (See Baker v. American Horticulture Supply, Inc. (2010) 186 Cal.App.4th 1059, 1072 [“‘“A defendant is entitled to a nonsuit [or directed verdict] if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor”’”].)

We decline to reach the issue of whether the one judge/same judge rule was applicable in this case. For purposes of this discussion, we will assume (without deciding) that it applied. The challenged ruling will be upheld on the more straightforward issue of judicial discretion.

“Although waiver is frequently said to be the intentional relinquishment of a known right, waiver may also result from conduct ‘which, according to its natural import, is so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that such right has been relinquished.’” (Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 298, quoting Medico-Dental etc. Co. v. Horton & Converse (1942) 21 Cal.2d 411, 432.) Dunlap was aware of the judicial reassignment for nearly nine months prior to the date of his motion. He understood his rights and sat on them until the last possible moment.

We realize the same judge issue only arose after Dunlap changed his mind about proceeding before a jury. However, circumstances such as the “fairly extensive typed up motions and exhibits” show his decision was made well in advance of his motion. His actions are reasonably construed as being “so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that such right has been relinquished.” (Medico-Dental etc. Co. v. Horton & Converse, supra, 21 Cal.2d at p. 432.) “‘[A] finding … based upon a reasonable inference … will not be set aside by an appellate court unless it appears that the inference was wholly irreconcilable with the evidence. [Citations.]’” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851.)

Dunlap argues his motion was made “at the first available opportunity at the commencement of trial.” He cites to Code of Civil Procedure section 581, subdivision (a)(6), which indicates a trial commences at the beginning of opening statements or when the first witness is called. Dunlap’s statement is accurate but unhelpful to his position, as he cites no authority to support the implied argument that a mistrial motion was the only way—or even the appropriate way—to assert his rights. He could have objected to the judicial reassignment at any time from December 2016 through August 2017. The parties in European Beverage sought ex parte relief within 48 hours of learning the original trial judge was no longer available. (European Beverage, supra, 43 Cal.App.4th at pp. 1213–1214.)

Substantial evidence in support of the bad faith finding is readily apparent from the totality of the circumstances. Bad faith can be a relevant factor in determining waiver, albeit one most often seen in arbitration cases. (See, e.g., Christensen v. Dewor Developments (1983) 33 Cal.3d 778, 783–784 [“procedural gamesmanship” provided “ample support for the trial judge’s conclusion that plaintiffs filed their action in bad faith, and by doing so waived their right to arbitrate].) As a general truism, “delay and evasion are added burdens on litigation causing a waste of judicial and legal time, are unfair to the litigants, and offend the administration of justice.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793, fn. 26.) Furthermore, “‘[i]t would seem … intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’” (Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 386, 392.)

Under the abuse of discretion standard, “we may reverse only if we conclude the trial court’s decision is ‘“so irrational or arbitrary that no reasonable person could agree with it.”’” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249.) We reach no such conclusion. Discretion is also abused if the trial court’s decision rests on an error of law or relies on the existence of facts not supported by substantial evidence. (Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 531; Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, 617.) The requisite showing has not been made. Therefore, the motion for mistrial was permissibly denied.

DISPOSITION

The judgment is affirmed. Stanley is awarded her costs on appeal.

PEÑA, J.

WE CONCUR:

HILL, P.J.

DETJEN, J.