THE PEOPLE DEPARTMENT OF TRANSPORTATION v. 927 INDIO MUERTO (2011)

Trial Court Bias and Unfairness to Appellants

Appellants claim the trial court was biased in favor of the State as shown by the court's questioning of witnesses and rulings on the admissibility of evidence.

A party is entitled to a fair and impartial decision maker.  (People v. Freeman (2010) 47 Cal.4th 993, 1000.)   A trial judge may not “prejudge” the case and must refrain from “ ‘forming an opinion on [factual] issues until the case [is] finally submitted․’ ”  (Webber v. Webber (1948) 33 Cal.2d 153, 161.)   Here appellants have not cited any statements by the court that would indicate bias.   They suggest it is shown by the way the court conducted its proceedings.

Leading a Witness to an Answer Favoring the State's Position

Appellants claim the trial court “led” a witness to the conclusion that the easement could be used for storage in order to support the State's position.   But the record does not support them.   During Sunseri's testimony, the court asked, “So in other words, that easement area could be used for storage?”   Sunseri answered:  “Yes.”

Appellants suggest that this question was improper and it encouraged Sunseri to answer in the affirmative.   But appellants did not object at the time the court asked this question.   That omission waives this claim.  (People v. Cook (2006) 39 Cal.4th 566, 598;  Hart v. Farris (1933) 218 Cal. 69, 76 [where the trial court questions a witness, counsel must object “to the court's examination at the time,” or any error is waived].)   Yet even on the merits, such questions by the judge do not contravene appellants' right to a fair trial.   The court may ask questions of witnesses to help the jury understand the evidence.  (Cook, at p. 598;  United States v. Saenz (5th Cir.1998) 134 F.3d 697, 708 [“A trial court may ask questions to clarify witnesses' testimony”];  Hart, at p. 76.)   Here Sunseri had already testified that she wrote a letter in 2006 confirming that “Santa Barbara Chemical Corp. will be able to continue operating their business at their current location despite the reduction in property size” caused by the Highway 101 expansion project.   There were, however, questions about where chemicals could be stored on the property.   The court was seeking clarification.   Appellants have not shown that the question was improper.

Unevenly Applying the Business Records Exception to the Hearsay Rule

Appellants claim the trial court unevenly applied the business records exception to the hearsay rule in favor of the State.   They note that the court allowed the State to introduce a letter from Sunseri to John Magorian of Caltrans and overruled a defense objection that it did not qualify under the business record exception.   Appellants claim when Magorian was called to testify, the defense tried to introduce Magorian's diary entry, but the court sustained a hearsay objection even though it was a business record.   Magorian's entry stated, “[D]irt and dust will make [defendants'] processing impossible during construction.”  (Italics added.)

But the objections to the diary were not based solely on hearsay.   The State's counsel said, “The problem I have with this, Your Honor, is relevancy.   We are talking about the construction period.   We are not talking about the after condition of the property which is the relevant area of inquiry․  You are looking at the after condition and you compare it with the before condition.   The construction period really has no bearing on the issues.”  (Italics added.)  “THE COURT:  I am with you.”   Appellants have failed to show that they made an adequate offer of proof on relevance.

Moreover, the record refutes the claim that the court was biased.   Even though it concluded this entry was inadmissible, the trial court attempted to see whether there could be a stipulation for its admission.   The court asked opposing counsel, “I am just asking does it hurt you at all?”   It then asked, “This page, standing alone, stipulation it's a business record, for whatever reason they want to have this in.”

Unfair Treatment of Expert Witnesses

Appellants contend the trial court treated the State's experts more favorably than their experts.   They note that it did not admit some of the charts their experts relied on.   The State objects to this portion of appellants' opening brief.   It claims they fail to make an adequate showing of unfairness or abuse of discretion by simply listing rulings against them and comparing it with a list of rulings they claim favor the State.   This objection is well taken.   “The biggest flaw in [appellants'] argument is their failure to offer any analysis that articulates their evidentiary claims within the context of the applicable standard of review.”  (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.)

We cannot decide abuse of discretion claims without an adequate statement of facts, legal argument, a description of evidentiary objections at trial, offers of proof, arguments of counsel, and the court's reasons for its rulings.   Each ruling on admissibility of evidence must be decided individually within the factual framework of the issues and objections raised.   We do not presume unfairness;  an appellant must make an adequate showing.

Here appellants try to make comparisons to prove a pattern of unfairness in the use of charts.   But each side prepared unique charts that had diverse evidentiary consequences.   Charts are visual aids.   They are not automatically admissible.  “Trial courts have broad discretion to admit demonstrative evidence such as maps, charts, and diagrams to illustrate a witness's testimony.”  (People v. Mills (2010) 48 Cal.4th 158, 207.)  “ ‘[T]he right to use this form of evidence is within the sound discretion of the trial judge.’ ”  (Ibid.) Courts may properly exclude charts that contain irrelevant or inadmissible material or contain questionable summaries.   Exclusion is proper where the charts are used as improper substitutes for trial testimony, will highlight extraneous issues, are confusing, or will consume excessive trial time. (§ 352.)   Appellants have not shown that their excluded charts fell outside of the above categories or that the court acted beyond its broad discretion by excluding these materials.  (Mills, at p. 207;  Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1217.)

Moreover, the record reflects that the trial court allowed appellants a complete opportunity to present their positions and admitted extensive testimony by their experts.  “We will not hold that every statement a judge makes to explain his or her reasons for ruling against a party constitutes evidence of judicial bias.”  (Mouton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219.)

We have reviewed appellants' remaining contentions and conclude they have not shown error.

The judgment is affirmed.   Costs on appeal are awarded in favor of respondent State.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Denise de Bellefeuille, Judge

Superior Court County of Santa Barbara

Sheppard, Mullin, Richter & Hampton LLP, Mark Riera, Jessica A. Johnson, Finley Taylor;  SNR Denton U.S. LLP, Mark Riera for Defendants and Appellants 927 Indio Muerto, Technical Marketing, Ltd. dba Tekmar, and Santa Barbara Chemical Corp.

Ronald W. Beals, Chief Counsel, David Gossage, Deputy Chief Counsel, Lucille Baca, Assistant Chief Counsel, Samuel C. Law, Derek S. Van Hoften for Plaintiff and Respondent State of California Department of Transportation.