Opinion
B316316
12-13-2022
ARLENE HEATON, as Successor in Interest, etc., Plaintiff and Appellant, v. SYLVIA GARCIA-MORENO, Defendant and Respondent.
Law Offices of Hector C. Perez Jr., Hector C. Perez and Hector C. Perez Jr. for Plaintiff and Appellant. Law Offices of Roquemore, Pringle & Moore, Inc. and John P. Pringle for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV28485, Michelle Williams Court, Judge. Affirmed.
Law Offices of Hector C. Perez Jr., Hector C. Perez and Hector C. Perez Jr. for Plaintiff and Appellant.
Law Offices of Roquemore, Pringle & Moore, Inc. and John P. Pringle for Defendant and Respondent.
RICHARDSON (ANNE K.), J. [*] 1
Lillian Padilla and Sylvia Garcia-Moreno were friends for several years before Garcia-Moreno took on responsibilities as an adult caregiver for Lillian's disabled son and with respect to Lillian's affairs. Around that time, Lillian and her family discovered certain financial irregularities, prompting a lawsuit against Garcia-Moreno asserting elder abuse, among other claims. After a two-day bench trial was held virtually during the COVID-19 pandemic, the trial court found in favor of Garcia-Moreno on all causes of action.
We refer to the Padillas by their first names for ease of reference; no disrespect is intended.
Lillian's successor in interest, Arlene Heaton, appeals.Heaton does not challenge the sufficiency of the evidence, but 2 instead contends that the trial court erred in denying her motion for a new trial. Heaton's motion argued that the trial court's resting her case and receiving additional evidence outside of her counsel's presence constituted irregularities in the proceedings that deprived her of a fair trial and a surprise that ordinary prudence could not have prevented. We discern no basis for reversal, and therefore affirm the judgment in favor of Garcia-Moreno.
Lillian passed away the day the complaint was filed. Her June 2019 will left all real and personal property to Heaton, naming Heaton executor of her estate. Heaton was the will's sole beneficiary and no estate administration action was pending as of approximately June 2020. Thus, pursuant to Code of Civil Procedure sections 377.32 and 377.33, the trial court substituted Heaton as plaintiff on claims belonging to Lillian in her capacity as successor in interest, although no motion was made to that effect. However, a notice of appeal was filed on behalf of Lillian only. Although an attorney may file a notice of appeal on behalf of a decedent under certain circumstances (Code Civ. Proc., § 903), the appeal of a survivor's cause of action may only thereafter be pursued by the personal representative of the decedent's estate or the decedent's successor in interest. (Code Civ. Proc., § 377.30; Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 743, fn. 2.) Despite the absence of a substitution request, we exercise our discretion to substitute Heaton as successor in interest to the estate of Lillian Padilla as plaintiff and appellant. (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 313.) With that understanding, we refer to the plaintiff and appellant as Heaton for ease of reference.
BACKGROUND
In August 2019, Lillian, then 84 years old, filed a complaint against Garcia-Moreno for attempting to take her money and home (the subject property) without authorization, and alleging the following causes of action: quiet title; financial elder abuse; breach of fiduciary duty; unjust enrichment; constructive trust; accounting; and conversion. A bench trial was held on March 1 and 2, 2021 via LACourtConnect. 3
The record on appeal does not contain a reporter's transcript of the trial proceedings. Because Heaton's appeal only presents procedural issues, and no issue directly implicating the sufficiency of the evidence at trial, we recite certain facts from the trial court's final statement of decision. In that regard, we note that, although Heaton designated the statement of decision as part of the record, it was not included in the clerk's transcript. She has attached the statement of decision to her opening brief. We construe that filing as a request for judicial notice of superior court records (Evid. Code, § 452, subd. (d)), and grant that request. (In re Randi D. (1989) 209 Cal.App.3d 624, 627.)
I. The evidence at trial
Garcia-Moreno testified that she and Lillian became friends through the church they attended, having met 35 to 40 years before. Lillian owned and resided at the subject property with her disabled adult son.
In March 2007, Lillian signed a notarized special power of attorney, entered into evidence at trial, appointing Garcia-Moreno as her attorney and granting her financial powers. The same day, Lillian signed a will before two witnesses naming Garcia-Moreno as executor, giving Garcia-Moreno the power to distribute her tangible personal property, and leaving the residue of her estate to Garcia-Moreno. The will stated that Lillian wanted Garcia-Moreno to be recognized as her daughter, not by blood but based upon "the love I have for her."
In March 2018, Garcia-Moreno was employed as a caregiver for Lillian's son. In June 2018, days after she was released from a hospital visit, Lillian named Garcia-Moreno agent of a durable power of attorney. From June through August, Garcia-Moreno visited the subject property and took Lillian's mail, which included bank account summaries. Garcia-Moreno became aware that Lillian revoked the power of attorney in August 2018.
Garcia-Moreno acknowledged withdrawing money from Lillian's bank account on approximately three occasions to pay for Lillian's caregivers, food, and necessities. Garcia-Moreno also made Venmo payments to her own children from Lillian's account. Garcia-Moreno and others used Lillian's debit card without objection from Lillian. Garcia-Moreno recalled visiting Lillian's bank to ask about her accounts, but the bank told her 4 Lillian had to be present, so she left and returned with Lillian. The bank spoke with Lillian alone.
On June 14, 2018, Lillian signed a quitclaim deed transferring the subject property to Garcia-Moreno. Garcia-Moreno paid only one dollar in consideration and did not immediately record the deed. When Lillian signed the deed, she could not walk and was living at Garcia-Moreno's home.
Garcia-Moreno testified that, upon learning she was being investigated by law enforcement, she cooperated voluntarily. Garcia-Moreno moved into the subject property approximately one month after Lillian's death. Having declared bankruptcy, she submitted her mortgage payments to the bankruptcy trustee.
Lillian's nephew, David, testified that in August 2018, Lillian reported to him that someone was stealing from her bank account. After the bank confirmed their identities and that it could speak with David, the bank told them that Garcia-Moreno had come to the bank with Lillian and was bothered when the bank asked to meet with Lillian alone. Lillian confirmed the transactions at issue were unauthorized. She later filed a fraud claim and a police report. David consulted with Lillian's counsel who recommended that Lillian revoke the power of attorney.
In June 2019, Lillian signed a notarized durable power of attorney for financial management and personal care decisions, appointing David as her agent. In July 2019, Garcia-Moreno recorded the 2018 quitclaim deed, which had been signed and notarized.
II. Trial and post-trial proceedings
The trial court's March 1, 2021 minute order reflected that both sides were present by video, with Heaton represented by two attorneys. That day, Heaton called Garcia-Moreno as a witness 5 and examined her, and several exhibits were admitted into evidence. Trial recessed to the next day, and the court directed the parties to have all witnesses registered by LACourtConnect.
After the presentation of evidence concluded on March 2, 2021, the trial court issued a minute order setting a briefing schedule for closing arguments and documenting the following chronology of that day's proceedings. According to that minute order, the proceedings began with several exhibits being marked for identification, and then David testifying on behalf of Heaton. At 2:44 p.m., the court took a break so that Heaton's counsel could secure her next witness; at 3:02 p.m., after the break, pursuant to Heaton's counsel's request, the parties agreed to switch from LACourtConnect to WebEx; at 3:08 p.m., the court connected to WebEx; at 3:11 p.m. Garcia-Moreno's attorney and Garcia-Moreno connected to WebEx; at 3:20 p.m., the court announced it would wait an additional five minutes to hear from Heaton's counsel; at 3:25 p.m., Heaton's counsel had not appeared and the court deemed Heaton to have rested her case. After some brief additional testimony by Garcia-Moreno on her own behalf and a 50-second video taken by Garcia-Moreno of Lillian in the hospital was marked for identification only,Garcia-Moreno rested her case. The trial concluded, with the court disconnecting at 3:34 p.m.
The trial court's final statement of decision indicated this exhibit was admitted into evidence.
Per the briefing schedule included in the March 2, 2021 minute order, Heaton filed a closing brief arguing that she had standing to pursue the action as Lillian's successor in interest and that she had met her burden of proof at trial. At the end of 6 an argument asserting that Heaton had carried her burden on proving her elder abuse claim, Heaton mentioned that she was unable to testify, and complained that counsel was unable to call an unnamed "rebuttal witness to defendant's testimony." However, the brief did not request a new trial or assert any formal legal objection to the way the trial had concluded without any additional witness testimony. Nor did the brief proffer the identity of the rebuttal witness or the subject of their testimony.
In April 2021, after Garcia-Moreno filed her closing brief, Heaton filed a reply brief and a written request for a statement of decision, the latter of which framed several issues for the court's consideration. Neither document objected to the proceedings or alluded to the alleged necessity of a new trial. Notably, the reply brief focused on the evidence presented at trial and did not mention the potential rebuttal witness nor any prejudice from the manner in which the trial concluded. The next day, the trial court took the matter under submission.
In May 2021, the trial court issued an intended statement of decision outlining its factual findings and conclusions of law and finding in favor of Garcia-Moreno on all causes of action. In June 2021, Heaton filed objections to the intended statement of decision. Amid several other objections, Heaton stated that the intended statement of decision "did not address the testimony that defendant was permitted to give in order to rebut the testimony of David Padilla outside the presence of any of [Heaton]'s counsel." However, Heaton's objections did not suggest that a new trial was required for this reason. 7
The trial court concluded that Heaton had standing to maintain this action.
In July 2021, the trial court issued a final statement of decision and entered judgment in Garcia-Moreno's favor. More specifically, with respect to Heaton's financial elder abuse claim, the trial court held that Heaton failed to carry her burden of showing that Garcia-Moreno took her property and money with the intent to defraud or that Lillian was harmed. The court cited evidence of their friendship over several decades, Garcia-Moreno's "credible" testimony that she had affection and concern for Lillian and her son, and that Garcia-Moreno took Lillian in and agreed to make decisions for her developmentally disabled adult son. As for the alleged unauthorized charges, the court found that many people had access to Lillian's bank account, that Lillian was not harmed by the withdrawals Garcia-Moreno had made from her bank account, and that, to the contrary, the transactions at issue were for Lillian's benefit or at Lillian's request. The court also reasoned that because the quit claim deed was signed by Lillian in the presence of a notary, and not transferred by Garcia-Moreno as agent under the power of attorney, and because there was no evidence that she lacked capacity to do so, Garcia-Moreno did not breach her fiduciary duties to Lillian.
In August 2021, Heaton gave notice that she intended to move for a new trial, alleging, among other things, that the trial court's ex parte communications with defendant's counsel and defendant and its resting her case outside the presence of her counsel constituted irregularities in the court's proceedings, depriving Heaton of a fair trial. Heaton later filed her motion for a new trial alleging that the trial court's resting her case outside her presence prevented her from calling a detective to rebut defendant's testimony, thereby constituting not just an 8 irregularity, but an accident or surprise against which ordinary prudence could not have guarded.
Heaton made no argument that a new trial was required because counsel was unable to secure her appearance during the pause in the second day's proceedings. Heaton did not dispute that she had no personal knowledge of the alleged abuse, and her testimony was only relevant to the question of standing.
Attached to Heaton's moving papers were various exhibits and a declaration from her attorney reciting the following history. The first day of trial, Heaton called Garcia-Moreno as a witness. Garcia-Moreno's testimony prompted Heaton's counsel to, later that evening, prepare and serve a trial subpoena to the detective with the Los Angeles Sheriff's Department that investigated Lillian's elder abuse complaint, seeking her testimony on March 4th at 10 a.m. Although counsel did not attest to having a conversation with the detective, counsel nonetheless averred that he "expected" the detective to testify that Garcia-Moreno "did not cooperate with [the detective's] investigation and did not tell [the detective] anything about the Quitclaim deed."
According to Heaton's counsel and the exhibit attached to the motion for new trial, the subpoena was served on March 1, 2021 at 9:10 p.m.
Heaton attached a witness list to her motion listing several other witnesses, but did not proffer what their testimony would have been or that she intended to call any of them, other than herself.
The next day, after David's testimony concluded, the proceedings briefly adjourned so that Heaton's counsel could secure Heaton's appearance via WebEx. Heaton's counsel understood the court to say that, should any party have 9 connectivity issues, the parties should reconvene at LACourtConnect.
Heaton's counsel further stated in his declaration that he was unable to connect with Heaton using WebEx, so he returned to LACourtConnect and instructed his co-counsel to "keep trying despite technical difficulties" and to telephonically contact the court. At 3:30 p.m., counsel emailed the court at an email address he had previously used for correspondence with the clerk of that department and copying defendant's counsel, asking the recipient to "tell the court that [Heaton's]lawyers are on Court Connect like [the court] requested because [they] could not connect to Webex."
Counsel's declaration is unclear whether this meant attempting to connect to Heaton or attempting to connect to WebEx. The declaration does not indicate whether counsel attempted to connect to WebEx-irrespective of his efforts to connect with Heaton-to update the trial court as to his efforts to appear.
Co-counsel eventually reached the clerk and was advised that he should talk to Garcia-Moreno's counsel. At 3:54 p.m., Garcia-Moreno's counsel replied to Heaton's counsel's email, stating that "I wasn't checking my email while I was live with the court at trial, so I'm just seeing this. [¶] I, Sylvia Moreno, and the court were waiting on Webex for about twenty five minutes. At that point, the judge asked the clerk if you had called or otherwise notified them of any issues, and the clerk advised her you had not. [¶] The court then stated that the Plaintiff rested. I asked a handful of questions of Ms. Moreno regarding the accusations Mr. Padilla made during his testimony. [¶] The 10 court set a schedule for closing briefs and ordered me to give notice, then ended the trial."
Garcia-Moreno filed an opposition to Heaton's motion, arguing that a new trial was not warranted because Heaton's counsel received adequate notice of the trial and failed to appear or take adequate steps to notify the court or opposing counsel of his technical difficulties. Garcia-Moreno further contended Heaton failed to demonstrate prejudice, given that her counsel had ample opportunity to cross-examine the defendant, and Heaton's testimony was only relevant as to standing, an issue decided in her favor.
Heaton filed a reply brief, arguing that her counsel's email to the court demonstrated sufficient diligence in reconnecting to the proceedings. As to prejudice, Heaton admitted she could only "speculate" that the testimony that took place outside her presence "must have contributed" to the trial court's finding Garcia-Moreno credible. While the statement of decision recounted that Garcia-Moreno testified she cooperated with law enforcement, Heaton's counsel recalled that, when all parties were present, Garcia-Moreno testified she did not recall telling the investigator about the quitclaim deed. Heaton likewise surmised that Garcia-Moreno testified regarding paying funds to the bankruptcy trustee outside Heaton's counsel's presence, because that fact, which appeared in the statement of decision, was previously unknown to Heaton.
In September 2021, the trial court denied Heaton's motion, concluding that she failed to demonstrate an irregularity that required a new trial because she or her counsel had notice of the proceedings, had participated in the proceedings, and absented themselves without alerting the court or defendant's counsel that 11 they were attempting to rejoin the proceedings. Further, because counsel failed to utilize methods of communication of which he had availed himself in the past-such as calling the courtroom, emailing opposing counsel, or calling opposing counsel's office-to alert the trial court of his efforts to reconnect, ordinary prudence could have guarded against the accident or surprise that Heaton alleged.
Heaton's notice of appeal only seeks review of the September 2021 order denying her motion for a new trial as an order after judgment under Code of Civil Procedure section 904.1, subdivision (a)(2). An order denying a motion for a new trial is not itself appealable, and is only reviewable "from the underlying judgment." (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19-20.) Nonetheless, consistent with the liberal construction we must afford notices of appeal, and in the absence of evidence of prejudice to Garcia-Moreno (who has filed a brief on the merits), we interpret Heaton's notice of appeal as encompassing the judgment after a court trial, and, therefore, her new trial motion. (Id. at pp. 20-21.)
DISCUSSION
Heaton raises a handful of interrelated arguments regarding the trial court's ruling on her motion for a new trial. According to Heaton, the court erred in concluding that no irregularity deprived her of a fair trial when the court conducted alleged ex parte proceedings and rested her case outside the presence of her counsel and without inquiry as to whether she wished to present further witnesses. Heaton also takes issue with the trial court's determination that a new trial was not warranted due to a surprise that ordinary prudence could not 12 have guarded against when the court unilaterally rested Heaton's case. As we explain, Heaton fails to demonstrate that these adverse determinations constituted an abuse of discretion under the circumstances.
I. Legal principles and standard of review
The grounds upon which a motion for a new trial may be granted are set forth in Code of Civil Procedure section 657:
"1. Irregularity in the proceedings . . . by which either party was prevented from having a fair trial.
"2. Misconduct of the jury . . . .
"3. Accident or surprise, which ordinary prudence could not have guarded against.
"4. Newly discovered evidence . . . .
"5. Excessive or inadequate damages.
"6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
"7. Error in law, occurring at the trial and excepted to by the party making the application." (Code Civ. Proc., § 657.)
"' "[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and [ ] the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party [citation], including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial." . . . Prejudice is required: 13 "[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error." [Citation.]' [Citation.]" (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 693-694.) Ultimately, an abuse of discretion occurs if, "in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice." (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752 (Fassberg).)
II. The trial court did not abuse its discretion in declining to order a new trial
As noted, Heaton's appeal focuses upon the three contentions she raised in her motion for a new trial, all stemming from the manner that the virtual bench trial concluded. Heaton alleges that these purported errors were structural, requiring that we reverse without assessing whether she incurred prejudice. For the reasons set forth below, we disagree, and further conclude that Heaton has failed to demonstrate that the trial court abused its discretion in denying her motion for a new trial.
A. Structural error
As a threshold matter, although elsewhere acknowledging that we must find a "miscarriage of justice" for her to prevail, Heaton also suggests that a prejudice inquiry is unnecessary where a litigant's interest in due process, free of bias or favor, is at stake. She relies predominantly upon Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994 (Haluck) and In re Marriage of Carlsson (2008) 163 Cal.App.4th 281 (Carlsson) in support of this argument. Heaton misreads these cases. 14
Heaton is not mistaken that "[t]he failure to accord a party litigant [her] constitutional right to due process" can constitute "reversible per se" error. (Carlsson, supra, 163 Cal.App.4th at p. 293). But not every ruling by a trial court that adversely affects a litigant's evidentiary presentation rises to the level of constitutional error. While "a party's opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court[,]" (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357), the trial court has broad authority and a statutory duty to control trial proceedings, including the introduction and exclusion of evidence. (Evid. Code, §§ 320, 352.) It is only when the court abuses this discretion" 'in such manner as to prevent a full and fair opportunity to the parties to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination'" that a litigant's due process rights are implicated. (Elkins, at p. 135, italics omitted.)
Thus, in Carlsson, "[t]he trial court essentially ran the trial on a stopwatch, curtailing the parties' right to present evidence on all material disputed issues" and "[u]sing the constant threat of a mistrial" to pressure the appellant's attorney to rush her presentation. (Carlsson, supra, 163 Cal.App.4th at p. 292.) This included refusing to allow counsel to use the restroom or break for lunch. (Id. at pp. 286-289.) Then, "the judge abruptly ended the trial in the middle of a witness's testimony, prior to the completion of one side's case and without giving the parties the opportunity to introduce or even propose additional evidence." (Id. at p. 292) Taken together, the judge's conduct was" 'shocking to the universal sense of justice'" (id. at p. 290) and "rendered the trial fundamentally unfair," requiring reversal without regard to prejudice. (Id. at p. 294.) 15
In Haluck, the trial court similarly engaged in a panopoly of misconduct that, together, compromised the fairness of the proceedings. There, the court presided over an "overall circus atmosphere" of its own inexplicable making (Haluck, supra, 151 Cal.App.4th at p. 1004), during which it viewed a videotape with counsel for only one party, ruled on objections with a hand-lettered sign in order to mock plaintiffs, allowed defense counsel to belittle the plaintiffs and their lawyer, disparaged a plaintiff's testimony and implied he was lying, and violated judicial decorum in several other significant ways. (Id. at pp. 1002- 1006.) Many of these acts occurred before the jury deciding the case. (Id. at pp. 1005-1006.) The court of appeal concluded that the judgment could not stand in the face of "actions and comments . . .' "[that] shock[ ] the judicial instinct." '" (id. at p. 1002), evince" 'bias and prejudice,'" and which cause one to doubt the" 'fairness of the proceedings. '" (Id. at pp. 1008-1009.)
We have nothing approaching such a level of judicial indiscretion here. In this case, no conduct occurred evincing any form of bias, or amounting to repeated limitations on Heaton's evidentiary presentation. Rather, Heaton complains only of a single event that transpired over the course of mere minutes, which potentially limited her ability to call a rebuttal witness on an isolated issue, as opposed to a string of conduct that compromised the overall fairness of her trial.
Specifically, after Heaton's counsel fully participated in the first day's proceedings and part of the next day's proceedings 16 without apparent incident, the trial court briefly recessed in order to permit Heaton's counsel to secure Heaton's appearance. Minutes later, the court switched from LACourtConnect-where the trial court had conducted the proceedings thus far and had informed the parties to be prepared to have all witnesses utilize-to WebEx at Heaton's counsel's request in order to accommodate counsel and his own client, Heaton. Three minutes later, Garcia-Moreno and her attorney connected to WebEx. Nine minutes later, the court announced it would wait an additional five minutes for Heaton's counsel to appear. When Heaton's counsel did not appear after those five minutes, Heaton was deemed to have rested her case.
As noted, Heaton has not furnished a reporter's transcript of the trial proceedings (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [appellant's burden to demonstrate error with adequate record on appeal]), significantly constraining our consideration of these issues. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 ["Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct." (original italics)].)
While the trial court might have, with the benefit of hindsight, afforded Heaton's counsel some additional time to appear, the record is clear that the trial court did reasonably attempt to accommodate Heaton and her interest in testifying. At that point, Heaton was the only additional witness known to the trial court, and her testimony was indisputably only relevant as to standing, an issue upon which she prevailed. Before resting Heaton's case and proceeding to take a few minutes of additional 17 testimony from the defendant, the trial court waited for the appearance of or some notification from Heaton's two attorneys, through any channel which they had previously availed themselves of in communication with the court, that they were attempting to partake in the proceedings. Yet, the only communication that counsel had with the trial court before the trial was adjourned was an email sent five minutes after the trial court had rested Heaton's case and 28 minutes after the trial court had last heard from either of them. Indeed, Heaton's lead counsel's declaration failed to explain why he could not personally, in those intervening minutes, attempt to call or email the court clerk, or attempt to reconnect to WebEx, while he was 18 waiting on LACourtConnect, as one might expect counsel to endeavor to do.
Heaton also cites Haluck to argue that the proceedings outside her and her counsel's presence were improper ex parte communications, thereby constituting an irregularity that prevented her from having a fair trial. However, the proceedings, which counsel had participated in just moments earlier before absenting himself, occurred in an open virtual courtroom. Courts generally do not consider such circumstances as improper ex parte communications. (See, e.g., People v. Hawthorne (1992) 4 Cal.4th 43, 69 [communications with jurors in open court are not "ex parte"]; cf. Heavey v. State Bar (1976) 17 Cal.3d 553, 559-560 [improper airing of grievances outside "open court," without "opportunity for opposing counsel to air his views[,]" is the "vice" that ex parte communications rule aims to address]; Haluck, supra, 151 Cal.App.4th at p. 1003 [viewing of evidence outside courtroom with only one party present was reversible judicial misconduct]; see also Rules Prof. Conduct, rule 3.5(b) [lawyer shall not communicate with judge about merits of pending contested case except "in open court," in writing, or in presence or with consent of opposing counsel].)
For this reason, and several others discussed in more detail in the section that follows, the fairness of the proceedings were not compromised to the extent that they were in Haluck and Carlsson. In other words, we do not view the present circumstances as rising to the level of the "circus atmosphere" that shocks the conscience as was present in the cases that Heaton invokes. (Haluck, supra, 151 Cal.App.4th at p. 1004.) We therefore reject her contention that we may reverse without addressing whether she was prejudiced.
B. Miscarriage of justice
Here, there is no dispute that the trial court conducted several minutes of proceedings during which it rested Heaton's case and took additional testimony from defendant outside of Heaton's counsel's presence. What is contested, however, is whether these occurrences resulted in a "miscarriage of justice" requiring a new trial. (Fassberg, supra, 152 Cal.App.4th at p. 752.) We answer that question in the negative.
At best, Heaton's submissions hint at the possibility of prejudice, stating that her inability to present the testimony of the detective who she had subpoenaed to "challenge the testimony of the defendant" compromised the trial's fairness. However, as the appealing party, Heaton may not simply assert the alleged error was prejudicial without meaningful analysis. Instead, Heaton "bears the duty of spelling out in [her] brief exactly how the error caused a miscarriage of justice." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Despite Garcia-Moreno's calling attention to the dearth of a prejudice showing in her opposition to the motion for new trial below, 19 Heaton's opening brief provides no meaningful analysis of the evidence presented at trial. And, despite Garcia-Moreno's again raising lack of prejudice in her respondent's brief, Heaton filed no reply brief addressing the issue. (See Paterno, at p. 102 [improper" 'to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent' "].)
Nonetheless considering the question of prejudice based upon the briefing and inadequate record before us, we discern no basis for reversal. Any argument that a miscarriage of justice occurred here buckles under the several layers of assumptions necessary for that conclusion.
First, Heaton's counsel made no proffer that the detective was available to appear on three days' notice, and we are skeptical that she would have been. (See Code Civ. Proc., § 1987, subd. (a) [subpoena must be served within "reasonable time" to allow for travel and attendance]; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2021) ¶ 1:71 [subpoenas should be served at least 10 days before trial]; see also Code Civ. Proc., § 1985.1 [subpoenaed person may agree to alternative time for appearance].) The subpoena was not even personally served on the detective herself, but rather on another employee of the Sheriff's department. Second, even were the detective available, Heaton made no meaningful offer of proof as to the substance of the detective's testimony, declining to state that counsel had spoken with the detective, and instead stating that he "expected" the detective to attest that Garcia-Moreno did not cooperate with the investigation and did not tell her anything 20 about the quitclaim deed. We decline Heaton's implicit invitation to base a reversal on such conjecture. (People v. Singh (2015) 234 Cal.App.4th 1319, 1330-1331 ["[I]t is not enough for an appellant to identify an error in the proceedings in the trial court without affirmatively establishing 'how the error caused a miscarriage of justice.' . . . Mere speculations of prejudice are insufficient to carry this burden." (citations omitted)].)
The tension between these two hypotheses does not escape us. One plausible implication of the statement that Garcia-Moreno did not tell the detective anything about the quitclaim deed is that Garcia-Moreno did speak to the detectives to some extent about some subject matters relevant to their investigation, excluding the quitclaim deed.
Third, even assuming the detective would have been available and would have testified as Heaton expected, it is unclear that this testimony would have undermined Garcia-Moreno's credibility. Again, the lack of a reporter's transcript prevents a holistic evaluation of this question, necessarily leaving us to-in Heaton's words-"speculate" about what might have occurred that was untranscribed and how it might have impacted the court's credibility findings, which we ordinarily are loath to second guess on appeal. (See Darab Cody N. v. Olivera (2019) 31 Cal.App.5th 1134, 1141 ["' "Credibility is an issue for the fact finder . . .; we do not reweigh the evidence or reassess the credibility of witnesses"' "].) In any event, Heaton's reply in support of her motion for new trial claimed that Garcia-Moreno testified that she did not recall telling the investigator about the quitclaim deed, a statement that is not inconsistent with the detective's expected testimony. 21
True, the court's summary of Garcia-Moreno's testimony in the statement of decision that she cooperated with law enforcement did contrast with the detective's proffered testimony. However, based upon the limited record before us, it is unclear that the tension between Garcia-Moreno and the investigator's subjective assessment of their interactions (see In re Jasmine G. (2000) 82 Cal.App.4th 282, 290 [" 'lack of cooperativeness'" is subjective]) would have swayed the court's credibility determinations or its legal conclusions.
That this alleged contradiction was not outcome determinative is implicit from the trial court's order denying Heaton's motion from a new trial. Moreover, the statement of decision discussed Garcia-Moreno's credibility only once, amid its rejection of the financial elder abuse claim, indicating that Garcia-Moreno's testimony that she had affection for Lillian and her son was "credible." Setting aside that the detective likely could not speak directly to Garcia-Moreno's affection, and assuming that the referenced testimony took place during the handful of minutes during which Heaton's counsel was not present, this credibility assessment was just one of many factors the trial court considered before concluding that Garcia-Moreno lacked the intent to defraud and that Lillian was not harmed. The trial court also cited apparently undisputed evidence of their friendship over several decades, that the withdrawals from the bank account were for Lillian's benefit and at her direction, and that Garcia-Moreno took Lillian in and agreed to make decisions for her developmentally disabled adult son.
Thus, the trial court's legal conclusions, while partially grounded in the credibility of Garcia-Moreno (who, notably, Heaton was able to cross-examine on the first day of trial), were 22 equally if not more impacted by unimpeached evidence of Garcia-Moreno's actions and her relationship with Lillian. Thus, as to the financial elder abuse cause of action (i.e., the sole claim where credibility expressly played a role in the trial court's decision-making), it was not just credibility, but several circumstances, taken together, that gravitated against a finding in Heaton's favor.
Moreover, Heaton's inaction regarding this witness during and over the several months following the trial undercuts any claim of prejudice. In other words, any surprise to Heaton or resulting irregularity in resting her case outside her presence and rendering her unable to call the detective as a witness was invited error, and therefore not prejudicial. (See, e.g., Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167 [under invited error doctrine, party is estopped from asserting prejudicial error where his own conduct caused or induced wrong].) The detective did not appear on Heaton's witness list. Though Heaton has claimed that she did not discover the materiality of that witness's testimony until after Garcia-Moreno testified on March 1st, she points to no record evidence that she disclosed to the court or opposing 23 counsel that she sought to call that witness prior to or during the second day's proceedings on March 2nd.
Although Heaton has asserted two separate grounds for reversal-namely an irregularity in the proceedings that deprived of her of a fair trial and that she was subject to surprise against which ordinary prudence could not have guarded-we discuss them together because, in a context where the alleged irregularity caused the movant's surprise, the two doctrines are essentially coextensive. (Garcia v. County of Los Angeles (1986) 177 Cal.App.3d 633, 639.)
What the record does reflect, however, is that, despite Heaton's counsel's receiving an email several minutes after trial concluded apprising him of what had occurred outside his presence (including that the court rested Heaton's case), Heaton did not mention the detective's name, her expected testimony, its materiality, or that her inability to present it deprived her of a fair trial until several months later, when she filed her motion for new trial, after it became clear that the trial court found against her on all her claims. Heaton did not move to reopen the trial proceedings (Sanchez v. Bay General Hospital (1981) 116 Cal.App.3d 776, 793 [court can reopen proceedings upon good cause showing]) or seek to offer the detective's testimony by way of declaration (Code Civ. Proc., § 98, subd. (a).) Though Heaton briefly referenced that she was unable to call a "rebuttal witness" in the midst of another substantive argument in her closing brief, the submission did not clarify whether she was referring to herself or another person, or what testimony that individual might have provided. Similarly, her objections to the tentative statement of decision, filed June 11, 2021, vaguely objected that the decision "did not address the testimony that defendant was permitted to give in order to rebut the testimony of David Padilla outside the presence of any of Plaintiff's counsel," but did not otherwise object to the manner in which the case concluded. Thus, the record contains no evidence that the trial court was made aware of the necessity of the detective's testimony in a timely manner. (Cf. Carlsson, supra, 163 Cal.App.4th at pp. 289- 290, 294 [movant's closing trial brief raised inability to call rebuttal witness within one week of trial's conclusion and before 24 written decision rendered].) Therefore, even if resting Heaton's case or receiving additional evidence outside Heaton's counsel's presence was erroneous, it was error that Heaton invited, and therefore not a basis for reversal. (Garcia v. County of Los Angeles, supra, 177 Cal.App.3d at pp. 640-641 [court's resting case before movant could present witness unknown to court was, even if an "irregularity," invited error].)
To the extent that Heaton claims that her absence during Garcia-Moreno's few minutes of direct testimony prejudiced Heaton because she was unable to conduct cross-examination, the lack of a reporter's transcript has constrained our review. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.) Further, any allegation of prejudice is similarly undercut by Heaton's failure to seek any relief until after the trial court had rendered its statement of decision, despite the minute order's apprising Heaton's counsel that Garcia-Moreno had testified in counsel's absence.
For these reasons, Heaton has failed to demonstrate that the claimed errors were sufficiently prejudicial, or that "the court's decision exceeds the bounds of reason and results in a miscarriage of justice." (Fassberg, supra, 152 Cal.App.4th at p. 752.) 25
DISPOSITION
The judgment is affirmed. Sylvia Garcia-Moreno is awarded her costs on appeal.
We concur: EDMON, P.J., LAVIN, J. 26
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.