Filed 6/24/20 Rodriguez v. Smit CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ROBERT D. RODRIGUEZ,

Plaintiff and Appellant,

v.

MARGARETHA M. SMIT,

Defendant and Respondent.

A154820

(Contra Costa County

Super. Ct. No. D1000553

Robert D. Rodriguez (father) appeals from a June 8, 2018 order granting Margaretha M. Smit (mother) sole legal and physical custody of their child and granting father supervised monthly visits.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties had a child in 2008 and, since 2010, have engaged in protracted litigation over child custody and visitation. Mother moved out of state in 2011 with the child; father objected; a custody evaluation was ordered and undertaken; and, in 2013, the parents entered into court-adopted stipulations that mother would be granted sole legal and physical custody and father would participate in reunification therapy and visitation with the child. The parents also agreed to drop any pending motions and issues, which presumably included father’s objection to mother’s move with the child.

In early 2014, the court appointed a psychologist to provide reunification therapy for father and the child. In June of that year, the psychologist withdrew because father refused to participate with the recommended individual therapy before beginning reunification therapy with the child. A second psychologist was appointed in July 2014, attempted to work with the family, and withdrew in December 2014 after concluding that reunification counseling was not likely to progress or succeed at that time. Beginning in August 2015 and for the next two years, father and the child participated in reunification therapy with a third court-appointed psychologist.

In response to father’s complaints about how the reunification therapy was proceeding, in June 2017 the court issued an order directing the third psychologist to arrange for two reunification therapy sessions by a certain date; thereafter, the psychologist would determine the frequency of sessions. The court also granted father unsupervised one-hour visits with the child every Sunday at a bookstore. Four months later, in October 2017, the psychologist withdrew from the case.

In November 2017, father filed for a change in custody and demanded a trial or “3-day long cause” hearing. Father asked the court to change the current arrangement (mother with legal and physical custody and father with limited unsupervised visits) to joint legal and shared physical custody, with father as the “the primary custodial parent” and mother allowed visitation. Father asserted this would be in the child’s best interest because mother had previously impeded his visits and currently was not allowing any visitation in violation of the court order for weekly Sunday visits. In the alternative, father sought expanded visitation.

Mother opposed father’s request. As three reunification therapists had all withdrawn from the case, she sought to cease visitation until there was a new reunification therapist assisting the family.

January 5, 2018 Hearing

On January 5, 2018, the parents appeared. The matter was continued to March 7 on the issues of “custody and visitation,” and reassigned to another judge. The court issued an “interim” order granting father professionally supervised visits for one hour per week, with the cost to be borne equally by the parents. In so ordering, the court noted the reunification therapist had resigned and mother had presented evidence that father “alleged[ly]” expressed an “intent to violate the visitation order.” The court found it was in the child’s best interest that visits be supervised pending further investigation and court proceedings.

After the hearing and issuance of the interim order, father filed a supplemental declaration asking for sole legal and physical custody. He submitted declarations in support of his requests from his wife, mother-in-law, and a friend who had also been his work supervisor.

March 7, 2018 Hearing

On March 7, the parents appeared but the matter was continued to June 8 for a hearing to include the issues of “custody and visitation.” That same day, the court issued several interim orders, including the following: (1) father was directed to pay 100 per cent of the cost of a court-appointed professional to supervise weekly visits of up to two hours; (2) the child was appointed counsel to evaluate claims of parent alienation, the child’s resistance to visits, and whether it would be beneficial to the long term goal of establishing a healthy bond between father and the child to give the child a right to refuse visits in the short term; and (3) mother was directed to secure family therapy services with a court-appointed licensed therapist with each parent to pay one-half of the cost of the therapist.

The parents then filed additional declarations. Mother’s April 9 declaration discussed her failed efforts to secure the services of the court-appointed family therapist because father purportedly did not have the funds to pay one-half of the $4,000 retainer, and she asked the court to give father additional time to secure his portion of the retainer. Father’s May 22 declaration detailed the law and evidence supporting his requests, and discussed his visits since March 7 and his failed attempts to visit since that time including a failed visit on May 7. On May 24, the child’s counsel filed a report discussing the child’s circumstances including a description of the failed May 7 visit.

June 8, 2018 Hearing

On June 8, the parents and the child’s counsel appeared for the hearing. The proceeding was neither recorded nor transcribed by a court reporter. The “parties” were “sworn and examined” and the matter was “argued and submitted.” The June 8 “findings and order after hearing,” states, in pertinent part:

“1. This court has jurisdiction to make child custody orders in this case under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, §§ 3400-3465).

“5. Previous Court Order of January 5, 2018, March 7, 2018 and other court orders remain in full force and effect ONLY to the extent they are consistent with the orders below. . . . (Bolded language in original.)

“7. Mother shall have sole legal custody of the child. Father has a 2011 misdemeanor conviction for a violation of Penal Code section 273.5(a) in which Mother was the victim. There is no evidence that Father has overcome the rebuttable presumption raised by Family Code section 3044 at this time.

“8. The Court has reviewed the file and notes that there have been many previous orders for reunification counseling, individual counseling and supervised visitation. On the one hand, Father requests unsupervised and longer visits . . . take place in [a named city in California], which is nearer to his home, than in [the state] where the child lives. On the other hand, the professionals engaged to provide services to Father and the child such as reunification therapy and supervised visitation have withdrawn from the case. Several of these professionals have sent letters of withdrawal mentioning Father’s lack of cooperation or other conduct as a reason for resignation. None has named Mother as a reason for the discontinuation of services. . . . The family has already had a full custody evaluation completed in March of 2013.

“10. The court chooses at this time to suspend the order for reunification therapy. Such orders have been in place since 2015 and reunification therapists, one after another, have withdrawn from this case. The Court does not believe that Father is capable of cooperating with reunification therapy at this time. The parties may choose to attempt to engage in reunification therapy but the Court would prefer that the parents spend their energies on making sure that Father’s visits happen.

“11. Father’s visits shall continue to be professionally supervised, and shall occur once a month for one hour at a time.

“a. All visits shall occur at the professional supervisor’s office, which shall be no more than 20 miles from the child’s home . . . .

“b. No other children shall be brought to attend the visits.

“c. If Father does not attend two visits within a 6 month period, then the visits shall be suspended for 120 days from the second missed visit. The six month period shall be counted starting from the date of the first missed visit.

“d. If Father does not attend a visit because of a dispute with the supervisor or because of a failure to pay the supervisor fees, that shall count as a missed visit.

“e. A visit that is canceled by reason of the child’s illness shall not count as a missed visit. A visit that is re-scheduled, where the request to reschedule the visit was made at least 48 hours in advance of the starting time of the visit shall not count as a missed visit. A visit that is re-scheduled, where the request to reschedule the visit comes from Mother or from the supervisor, shall not count as a missed visit.

“12. The purpose of the Court’s order regarding visitation is to limit the number of variables that can jeopardize or prevent a visit from taking place. There should not be any further misunderstandings about bringing other children to the Father’s visits with the child, the location, length or cost of the visit. It is the hope of the Court that Father will have a series of successful, if limited, visitation time with the child and that in the long run Father will be able to petition for longer visitation time, visitation at other locations, and ultimately unsupervised visitation.

“14. Minor’s counsel spent approximately 25 to 30 hours in her investigation. Minor’s counsel reviewed documents in the file, interviewed both parents, the child, the child’s adult sister, a previous reunification therapist and Father’s ex-wife. Minor’s counsel did not, in the course of her investigation, observe any signs that Mother was attempting to alienate the child from Father. Minor’s counsel reported that Mother cooperated with minor’s counsel and acknowledged the importance of the child having a relationship with Father. Minor’s counsel reported that third parties (the child’s adult sister and Father’s ex-wife) and the child herself reported that Mother encourages the child to visit with her Father and try new things and new tasks, such as agreeing to two hour visits instead of one hour visits.

“15. The Court has read and considered the report of minor’s counsel . . . . Her report is admitted, over [Father’s] objection that minor’s counsel is not qualified to opine on whether the child should have a right of refusal, except for the last sentence on page 5 which is not admitted. [The court struck the following sentence from the written report of the child’s counsel: “Based on the totality of the events and facts at the present time, it will be harmful to [the child] if [the child] is given no voice and the right to say [the child] does or does not want to spend time with [father].” ] (Bracketed sentence added.)

“16. Minor’s Counsel reported in Court that the child, at nine years of age and in the third grade, is ‘very mature and unfortunately very aware, of the litigation.’ . . . [T]he child is ‘very smart, and [the child’s] verbal and writing skills are phenomenal.’ At counsel’s request, the child provided counsel a very well written two page document about [the child’s] feelings. The computer coding camp and math camp are consistent with Minor’s counsel’s impression that [the child] is intellectually gifted.

“17. The Court takes judicial notice of [Father’s] 2011 conviction for a misdemeanor violation of Penal Code Section 273.5 in which . . . [Mother] was the alleged victim.

“18. The Court orders that Mother arrange for the child to participate in individual psychotherapeutic counseling, on a weekly basis, or as often as recommended by the counseling.

“19. The Court notes that [Father formerly] was an attorney practicing in California, but is no longer licensed to practice law in California. He suffered a 60 day suspension from the practice of law, among other conditions, from the State Bar of California for the § 273.5 conviction described above. In its decision (of which the Court takes judicial notice) the State Bar noted, ‘[Father] demonstrated a lack of insight regarding his misconduct . . [.] Despite significant and verified injuries to [Mother] – including a bloody lip and a mild concussion – and no verified injuries to [Father], he continues to argue that he did nothing wrong . . . [.] [Father] continues to look elsewhere for blame but has yet to recognize and take responsibility for his own actions.’ In the Matter of Robert Daniel Rodriguez, Case No. 11-C-12129-LMA, State Bar Court of California, filed January 9, 2015, at page 4.

“21. The Court notes that Minor’s Counsel reported that the child ‘does not want to spend any time with Father because he stresses [the child] out.’ Further, it was reported that ‘he scares [the child], [the child] feels [Father] talks down to [the child] and puts [M]other . . . down by constantly telling [the child] during visits that [the child] gets [the child’s] smarts from [Father] not . . . [Mother].’ Minor’s counsel reported that the child feels Father is not interested in [the child’s] life and . . . interests. It was reported that the [child] wonders why [the child] must spend time with a ‘stranger’ and that the [child] is upset by the fact that [the child] is forced to spend time with Father with the Reunification Therapist . . . .

“22. The Court received evidence about a failed visit on May 7, 2018 from Minor’s Counsel. The professional [visit] supervisor arranged the visit so that Father could attend the child’s soccer game and then the three of them could go get ice cream. Father testified that he did not attend the visit because he could not afford ‘the additional $25’ (out of a total fee of $125) for the two[-]hour visit. Father admits that instead of attending the soccer game, he took his [other two children] out for a $10 pizza . . . . Minor’s counsel reported that the child heard about the pizza visit from the other children and that the child was disappointed that [Father] did not attend [the] soccer game but felt it was confirmation of [the child’s] assessment that . . . [Father] is not interested in [the child] and [the child’s] activities. [Father] was not able at the hearing to produce a single text to or from [the visit supervisor] on the date of the soccer [game] to document his proffered excuse that [the visit supervisor] would not allow the visit because [Father] did not have ‘the extra $25.’ [The Court notes and [Father] admits, that it was only a matter of $15, as he had $10 to take his [other two children] out for pizza . . . .] [Father] asserts that it would be crazy for anyone to believe that he did not wish to visit [the child]. The court does not find [Father’s] proffered excuse for missing the visit to be credible.  He himself chose to stay away from the visit and the Court does not find his reasoning to be credible or justified.

“23. Father argued to the Court that [it] ‘seems like everyone is concerned about the child’s bond with the reunification therapist and the visit supervisor but not the child’s bond with me.’

“24. Father’s request for an order to [have a] joint therapist for himself and [the child] is denied, for the reasons stated in Minor’s Counsel’s report. [The written report stated: ‘[Father] located a counselor . . . who is covered by his insurance and apparently is willing to start joint counseling with [the child] and [Father] to assist with understanding why [the child] feels the way [the child] does toward [Father]. Initially, [counsel] indicated this was a good suggestion however, [Father] stated he wanted this therapist so he had “someone on his side.” With this statement made by [Father] [counsel] must object to any joint counseling with [Father] and [the child] solely so [Father] obtains a professional who supports his position. This type of counseling is not in [the child’s] best interest.’] (Bracketed sentences added.)”

Father timely appealed. He also made a request for a writ of supersedeas to stay the order pending appeal, which was denied.

DISCUSSION

It is well settled that “ ‘a party challenging a judgment [or order] has the burden of showing reversible error by an adequate record,’ . . . [and] [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 (Elena S.).)

As there was neither a court provided nor privately retained court reporter at the June 8 hearing, father had the option to seek a settled statement “as a viable alternative to a reporter’s transcript.” (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 933; see Id. at p. 934, fn. 4 [appellant’s decision not to hire a court reporter did not deprive her of the right to secure a settled statement]; Cal. Rules of Court rule 8.137.) Father understood that, because he did not secure a settled statement in lieu of a reporter’s transcript, this court would “not be able to consider what was said . . . in determining whether an error was made” in the trial court. Rather, our review is limited to the documents in the clerk’s transcript and supplemental transcript, and father’s arguments in his amended opening brief and at oral argument on appeal.

I. Father Has Not Shown the Trial Court Erred in the Manner in Which it Conducted the June 8 Hearing
II.

Father contends the court committed reversible error by failing to hold a trial or adversarial hearing of three to five days, as opposed to a hearing lasting one to two hours, which resulted in father not having adequate time to present his case. He further contends that he was not given notice of the issues to be resolved at the June 8 hearing or adequate time to conduct discovery or subpoena witnesses for that hearing.

In support of his argument, he cites to cases in which the appellate courts reversed when the record showed the trial court: (a) failed to give appellant notice that the hearing would encompass the issue of his removal as executor and refused appellant an opportunity to present evidence on that issue (Estate of Buchman (1954) 123 Cal.App.2d 546, 560); (b) refused or failed to consider relevant evidence (Shippey v. Shippey (1943) 58 Cal.App.2d 174, 175-176; Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1314-1316, 1329; In re Marriage of Kern (1978) 87 Cal.App.3d 402, 411; People v. Mizer (1961) 195 Cal.App.2d 261, 268-269); (c) refused to hold a contested hearing after finding a parent’s offer of proof was insufficient (In re James Q. (2000) 81 Cal.App.4th 255, 258); (d) refused or failed to allow appellant to testify, offer evidence, or argue on a contested matter (Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677; Caldwell v. Caldwell (1962) 204 Cal.App.2d 819, 820-821; see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1359-1360, 1363); (e) prejudged the case as shown by a recital of the court’s verbatim remarks in the reporter’s transcript (Webber v. Webber (1948) 33 Cal.2d 153, 156-157, 164); or (f) refused to considered affidavits submitted by a parent who had no opportunity to cross-examine the court-appointed investigator who submitted his confidential report only to the court (Fewel v. Fewel (1943) 23 Cal.2d 431, 433-434).

Unlike the cases on which he relies, father has not provided us with a record that shows the trial court erred in the manner in which it conducted the June 8 hearing. Specifically, the record does not show, as father contends, that he was not given notice of the issues to be resolved at the June 8 hearing or adequate time to conduct discovery or subpoena witnesses. The court’s orders, as well as father’s May 22 declaration, indicates that father was on notice that the court would consider his request for a change of custody at the June 8 hearing and we see nothing in the record indicating he did not have an adequate time to conduct discovery or subpoena witnesses for the hearing. Additionally, without a reporter’s transcript or settled statement, father has not shown that the trial court erred by failing to give him adequate time to testify, present documents, and argument, to cross-examine mother and the child’s counsel, and to make objections to any evidence or the law to be considered by the court in making its determinations.

We are not persuaded by father’s position that somehow the court’s written findings and orders, by themselves, are sufficient to show error in the court’s evidentiary rulings or the manner in which it conducted the June 8 hearing. The court’s written findings and orders are not a suitable substitute for “a settled statement,” which is “a summary of the superior court proceedings,” to be used “as the record of the oral proceedings in the superior court, instead of a reporter’s transcript.” (Cal. Rules of Court, rule 8.137.) Moreover, the written findings and orders do not indicate father objected or had no opportunity to object on the specific grounds he now asserts on appeal, that the court: (1) had only scheduled the June 8 hearing for a review of the written report of the child’s counsel and had failed to give him notice that the June 8 hearing would encompass his request for changed custody; (2) improperly considered certain evidence (court’s own files, father’s 2011 conviction, the 2015 State Bar Court decision, inadequacies and hearsay in the written report filed by the child’s counsel), and (3) did not require the production of expert evidence.

We cannot reverse an order or direct a new hearing for an evidentiary error or ruling or any matter of procedure asserted on appeal unless an objection on that specific basis is made in the trial court. (See Cal. Const., art. VI, § 13; Code Civ. Proc. § 475; Evid. Code §§ 353, 354; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 (Doers).) Because father has not given us a record showing he preserved for review his procedural claims concerning the court’s manner in which it conducted the June 8 hearing and its evidentiary rulings, we do not further address these procedural claims of error.

“[I]n the final analysis what [Father] is attempting to do on this appeal is, in effect, to attack evidentiary rulings under the guise of attacking certain conclusions of law without presenting the record of any portions of the oral proceedings to enable this court to properly rule on rulings by the trial court regarding evidence or the conduct of the proceedings. . . . In our view this strategy not only imposes an undue burden on this court, it constitutes a disservice to the cause of justice.” (Estate of Grimble (1974) 42 Cal.App.3d 741, 750.)

III. Father Has Not Shown Judicial Bias
IV.
Father contends the written findings and orders are themselves evidence of the trial court’s bias against him. In support of this argument, he cites to People v. Freeman (2010) 47 Cal.4th 993, 1006, in which our high court held that a federal constitutional due process violation based on judicial bias may arise when circumstances of the case, objectively considered, pose “ ‘ “such a risk of actual bias or prejudgment” ’ . . . as to require disqualification.” Father specifically asks us to consider that the record shows the court did not want to hold a trial, and its written findings and orders “humiliated” him by stating he “ ‘used’ ” to be a lawyer and further “alienated” him “from the minor child for not having enough money to pay for costs” of the visit supervisor.

In evaluating judicial bias “amounting to a due process violation,” our “role is not to examine whether the trial judge’s behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial. [Citation.] Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. [Citation.] Numerous and continuous rulings against a party are not grounds for a finding of bias. [¶] A constitutional finding of judicial . . . bias is appropriate only when ‘extreme facts’ demonstrate a probability of actual bias. [Citation.] . . . This review is independent.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589 (Schmidt).)

Based on our independent review, we conclude there is no evidence of judicial bias anywhere in the record showing “a probability of actual bias” that supports reversal. (Schmidt, supra, 44 Cal.App.5th at p. 589.) Accordingly, father’s claim of judicial bias fails.

V. Additional Challenges to the Custody and Visitation Orders
VI.
Father argues that reversal is required because the custody and visitation rulings were premised on constitutional and state law errors, were not supported by substantial evidence, and otherwise constituted an abuse of discretion.

Father specifically challenges the custody order on the grounds that the court: (1) applied the wrong legal standard (changed circumstances and not the best interest of the child); (2) misapplied Family Code section 3044 (rebuttable presumption against awarding custody to a parent who has committed domestic violence against the other parent within five years) because his 2011 domestic violence conviction was more than five years old; and (3) failed to make findings in conformity with Family Code section 3190, which allows the court to require family outpatient counseling for not more than one year if the court specifically finds that an interfamilial dispute poses a substantial danger to the child’s best interest and counseling is in the child’s best interest.

He challenges the visitation orders on the grounds that: (1) he was granted only minimal contact with the child (from up to two hours weekly (March 7 order) to one hour monthly (June 8 order)) in violation of his right to frequent and continuous visits; (2) the court “retaliated” against him “for being poor” because he was required to pay 100 per cent of the costs of the visitation supervisor without consideration of his and mother’s relative abilities to pay; and (3) the visitation directive allowing suspension of visits for disputes with the visit supervisor violated his constitutional right prohibiting prior restraints on speech, his constitutional right to contract with the visit supervisor, and the child’s constitutional substantive due process right to visit with father.

However, as we have explained, we should “ ‘not consider . . . erroneous rulings, in connection with relief sought . . ., where an objection could have been but was not presented to the [trial] court by some appropriate method. . . .[T]he explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could have easily been corrected at the trial.’ ” (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1; italics in original.) Consequently, reversal is not required based on father’s arguments that the orders were made in violation of his and the child’s constitutional rights, without a consideration of the parents’ finances, and were contrary to Family Code sections 3044 and 3190. The record provided does not show father made objections or had no opportunity to make objections on these grounds in the trial court. Accordingly, he has not preserved these arguments for review and we do not further address these substantive claims.

Reversal is also not required based on father’s arguments that the custody and visitation orders are not supported by substantial evidence or constitute an abuse of discretion on the part of the trial court. In support of his arguments, father again asks us to consider portions of the court’s written findings and orders. However, these are not a proper substitute for a settled statement as they do not recite a summary of the June 8 hearing. For example, while the court recites father’s testimony and argument and evidence provided by the child’s counsel, the court does not expressly state that it has recited all of the evidence and argument offered by father and the child’s counsel. Also, even though the court recites that mother was sworn, examined, and gave argument, the court makes no mention of her testimony or her arguments in its findings and orders. In the absence of a record showing that the court’s rulings are not supported by substantial evidence or that the court otherwise abused its discretion, father’s claims of error on these grounds necessarily fail. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 [when no reporter’s transcript is provided, appellant is precluded from raising an argument as to the sufficiency of the evidence].)

Reversal is also not required based on father’s argument that the court applied the wrong legal standard in awarding custody to mother. As father concedes, the court’s written findings and orders do not indicate whether the court awarded custody to mother “based on a ‘change[d] circumstance’ analysis,” or whether the court used “the ‘best interest’ analysis.” But more significantly, and dispositive here, is the fact that the court’s determination as to the applicable legal standard did not exist in a vacuum, but required a consideration of the evidence and arguments that the parties presented at the June 8 hearing. Because father has not provided us with a record of that hearing, by either a reporter’s transcript or a settled statement, we are in no position to determine whether or not the court applied an erroneous legal standard in awarding custody to mother and father’s claim must fail. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [appellants’ failure to furnish an adequate record of proceedings requires that their claims be resolved against them]; Elena S., supra, 247 Cal.App.4th at p. 576 [“[ i]n the absence of a proper record, which would include either a reporter’s transcript or a settled statement (neither of which we have in this case), we must presume the trial court acted properly”; “[t]herefore, the judgment is correct and must be affirmed”].)

IV. The Writ of Supersedeas is Denied

Because we affirm the June 8 order on father’s appeal, we deny as moot his renewed request for a writ of supersedeas pending appeal and his alternative request to treat his amended opening brief as a petition for a writ of mandate and/or prohibition.

DISPOSITION

The June 8, 2018 order is affirmed. Because defendant Margaretha M. Smit did not file a respondent’s brief, no costs are awarded on appeal to either party. (Cal. Rules of Court, rule 8.278(a)(5).)

Plaintiff Robert D. Rodriguez’s renewed request for a writ of supersedeas pending appeal and his alternative request to treat his amended opening brief as a petition for a writ of mandate and/or prohibition are denied as moot.

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Petrou, J.

WE CONCUR:

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Siggins, P.J.

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Jackson, J.

A154820/Rodriguez v. Smit