Filed 11/22/19 Ebert-Robb v. Thomsen CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

—-

MARY EBERT-ROBB,

Plaintiff and Respondent,

v.

JOANNE THOMSEN,

Defendant and Appellant.

C087010

(Super. Ct. No. SCV0040454)

Joanne Thomsen appeals from an order restraining her from harassing respondent Mary Ebert-Robb. Thomsen contends the superior court erred in relying on a ruling by a disqualified judge. We disagree and will affirm the judgment (order).

I. BACKGROUND

In October 2017, Thomsen filed a request for a civil harassment restraining order against Ebert-Robb, which the court denied after an evidentiary hearing.

In November 2017, Ebert-Robb filed a request for a civil harassment restraining order against Thomsen, which the court denied.

In December 2017, Thomsen filed a second request for a civil harassment restraining order against Ebert-Robb, in Placer County case No. SCV-40306, which went to trial in January 2018 before Judge Kearney. On January 22, 2018, Judge Kearney issued an order denying that request.

Two weeks later, on February 5, 2018, Judge Kearney granted Thomsen’s peremptory challenge of Judge Kearney pursuant to Code of Civil Procedure section 170.6.

Meanwhile, in December 2017, Ebert-Robb filed a second request for a civil harassment restraining order against Thomsen, which resulted in the order underlying this appeal. In her request, Ebert-Robb asserted, among other things, that Thomsen had been threatening Ebert-Robb on social media.

In March 2018, Judge Curry granted Ebert-Robb’s request and issued an order restraining Thomsen from, among other things, harassing, intimidating or threatening Ebert-Robb for a period of three years. The court referred to several threatening Facebook messages Thomsen had sent to Ebert-Robb, and found by clear and convincing evidence that Thomsen engaged in a knowing and willful course of conduct directed at Ebert-Robb that seriously alarmed, annoyed or harassed her and that served no legitimate purpose, and that caused Ebert-Robb to suffer substantial emotional distress.

In reaching this conclusion, the court precluded the parties from presenting testimony regarding evidence heard by Judge Kearney in the two prior hearings, limiting the trial to testimony or new evidence regarding alleged harassment not raised in the prior hearings. However, the court attached to its order, and incorporated therein, Judge Kearney’s January 22, 2018, written order in Placer County case No. SCV-40306, and relied in part on Judge Kearney’s order in finding a pattern and practice by Thomsen of harassment of Ebert-Robb. The court concluded: “It appears to the Court that Ms. Thomsen is using the restraining order process as a means to harass.”

II. DISCUSSION

Thomsen, acting in propria persona, contends primarily that because Judge Kearney had been disqualified, it was error for Judge Curry to rely on Judge Kearney’s order made prior to Judge Kearney’s judicial disqualification. We disagree.

Thomsen filed a peremptory challenge of Judge Kearney pursuant to Code of Civil Procedure section 170.6. When a party exercises a peremptory challenge, the judge “shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact.” (§ 170.6, subd. (a)(1).) “When a [peremptory] challenge is timely and properly made, the challenged judge immediately loses jurisdiction and must recuse himself. If he does not, his subsequent orders and judgments are void.” (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 363-364, italics added; see also Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1323 [orders subsequent to disqualification are void]; Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1161, fn. 3 [orders subsequent to disqualification are voidable].) Nothing in the language of section 170.6 suggests a peremptory challenge reaches backward in time to render void or voidable orders or rulings made by the judge prior to the time his or her disqualification was established by the filing of a peremptory challenge. To the contrary, section 170.6, subdivision (a)(2), authorizes a peremptory challenge against a judge who has already made rulings in the case that do not involve a determination of contested fact issues relating to the merits, implicitly recognizing that prior rulings are not rendered void or voidable by a subsequent peremptory challenge. Were the rule otherwise, a peremptory challenge could be misused as gamesmanship to neutralize a judge’s adverse rulings made before the peremptory challenge.

In arguing that it was improper for Judge Curry to refer to Judge Kearney’s pre-disqualification order, Thomsen relies on Christie v. City of El Centro (2006) 135 Cal.App.4th 767, which recognizes that a judge may not discuss a case with a previously disqualified judge. (Id. at p. 776.) But, here, nothing in the record suggests Judge Curry ever discussed this matter with Judge Kearney.

Finally, Thomsen raises several additional contentions without reasoned analysis or citations to authority or to the record, and not under separate argumentative headings, namely, the trial court’s findings lack merit and are unsupported by evidence; the trial court violated due process; and the trial court denied an opportunity to respond to certain evidence. A pro se litigant is held to the same standards as an attorney in prosecuting an appeal. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Each point raised in an appellate brief must be set out under a separate heading or subheading summarizing the point. (Cal. Rules of Court, rule 8.204(a)(1)(B).) The failure to raise a point separately or to support it with reasoned argument and authority may result in the issue being forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4.) We deem appellant’s additional contentions to be forfeited.

III. DISPOSITION

The judgment (order) is affirmed. Respondent shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

MAURO, J.