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    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

    SECOND APPELLATE DISTRICT

    MARBELLA WAHSINGTON-ALLEN Case No.: B243431

    Appellant/Plaintiff Super. Ct. No.: NC055508

    Vs.

    EDDIE RICHARDSON, ET AL.,Respondent/Defendant

    ___________________________________

    Appeal From a JudgmentOf The Superior Court, County of Los Angeles

    Honorable Joseph E. DiLoreto, Judge

    APPELLANTS OPENING BRIEF

    MARBELLA WASHINGTON-ALLEN

    14512 BAHAMA AVENUE

    COMPTON, CA. 90220

    TEL: (310)844-3701

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    TABLE OF CONTENTS

    PAGE

    TABLE OF AUTHORITIES.. ii

    STATEMENT OF THE CASE 1

    STATEMENT OF APPEALABILTY.. 1

    STATEMENT OF FACTS 1

    ARGUMENTS.. 2

    I. THE TRIAL COURT FAILED TO CONSIDER ALL EVIDENCESUBMITTED AT TRIAL... 2

    II. THE TRIAL COURTS CONSIDERATION OF PRIOR LAWSUITS WAREACTS OF JUDIAL BIAS 4

    III.THE TRIAL COURT FURTHER DEMONSTATED JUDICIAL BIAS WHENIT FAILED TO CONSIDER THE INDEPENDENT EVIDENCE PROVIDED

    BY DR. SIMPSON....................................................................................................... 7

    CONCLUSION 8

    CERIFICATE OF COMPLIANCE. 9

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    TABLE OF AUTHORITIES

    CASES

    Arizona v. Fulminante, 499 U.S. at p. 310, 111 S.Ct. 1246

    Catchpole v. Brannon (1995) 36 Cal. App. 4th 237, 262.

    Mann v. Cracchiolo (1985) 38 Cal. 3d 18 [210 Cal.Rptr. 762, 694 P.2d 1134].

    Eisenberg et al, California Practice Guide, Civil Appeals and Writs

    (The Rutter Group 2003) Ch. 8, 8:308-310.5, pages 8-138 to 8-140

    Hurtado v. Statewide Home Loan Co.

    (1985) 167 Cal. App. 3d 1019, 1023-1025 [213 Cal.Rptr. 712].)

    Judith P. v. The Superior Court (2002) 102 Cal. App. 4th 535, 554-558.

    Marriage of Iverson (1992) 11 Cal. App. 4th 1495.

    Pratt v. Pratt (1903) 141 Cal. 247, 252 [74 P. 742]..

    United Farm Workers of America v. Superior Court170 Cal. App. 3d at pp. 104-105

    Webber v. Webber (1948) 33 Cal.2d 153, 155 [199 P.2d 934].

    STATUTES

    Cal. Evid. Code section 801(a) (b)

    California Code of Civil Procedure sect. 904.1, subd. (a)(1).

    OTHER

    Civil Appeals and Writs (The Rutter Group 2003)

    Ch. 8, 8:308-310.5, pages 8-138 to 8-140

    California Code of Judicial Conduct, Cannon 2.

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    STATEMENT OF THE CASE

    Appellant filed a complaint on 01/04/2011, alleging that each of the respondents had,

    in some way, committed an assault and battery upon the appellant, and were liable under

    the following legal theories: 1) that respondents willful and intentional physical attack of

    appellant through physical force was an assault under California law. The trial judge,

    whom tried the case, issued his ruling on June 29, 2012. [Ruling on Court Trial- June 29,

    2012]. This appeal is taking on that ruling.

    STATEMENT OF APPEALABILTY

    This appeal is from a judgment of the Los Angeles County Superior Court and is

    authorized by code of civil procedure, section 904.1, subd. (a)(1).

    STATEMENT OF FACTS

    Appellant testified and presented several witnesses who testified that, while

    appellant was attending Sunday church service on January 4, 2009, the respondent, Eddie

    Richardson, left the front of the church, approached the rear of the church and grabbed an

    offering tray out of appellantshands and proceeded to place his arm around appellants

    neck and while applying pressure began pulling appellant down a flight of stairs and out

    of the church. Witnesses also testified that while this assault was occurring, the other

    respondents named in this action, also joined in the assault and battery upon appellant.

    Additionally witnesses testify that due to this assault and because respondents did

    not allow appellant to collect her personal effects i.e., her purse, cell phone, etc., she

    called the Long Beach Police Department for assistance. Several hours later, two officers

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    arrived at the church, where appellant had informed them that she was forced out of the

    church.

    Appellant testified at the trial and presented several witnesses: her nephew, who was

    a junior deacon in the church and an individual which was visiting the church on January

    4, 2009, for the first time. These witnesses testified that they witnessed the assault occur.

    Appellant also provided medical evidence of the injuries she sustained and medical

    treatment administered by Dr. Simpson, as a result of the assault by respondents.

    Although, Dr. Simpson provided testimony to the trial court on the nature of the injuries

    sustained by appellant and presented medical document on the same, the trial court did

    not consider this evidence.

    ARGUMENTS

    I. THE TRIAL COURT FAILED TO CONSIDER ALL EVIDENCESUBMITTED AT TRIAL.

    In the instant case Dr. Simpson testified as appellants treating doctor. He testified

    that appellant had suffered injuries consistent with being assaulted. Dr. Simpson, was

    also called to give his expert opinion as to his belief that appellants injuries are

    consistent with being assaulted in the manner in which appellant testified. See Cal. Evid.

    Code section 801(a) (b).

    Section 801(a) (b) states that:

    If a witness is testifying as an expert, his testimony in the form of an opinion is

    limited to such an opinion as is:(a) Related to a subject that is sufficiently beyond common experience that the opinionof an expert would assist the trier of fact; and

    (b) Based on matter (including his special knowledge, skill, experience, training, andeducation) perceived by or personally known to the witness or made known to him at or

    before the hearing, whether or not admissible, that is of a type that reasonably may be

    relied upon by an expert in forming an opinion upon the subject to which his testimony

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    relates, unless an expert is precluded by law from using such matter as a basis for hisopinion.

    In entering judgment for the respondents, the trial court appears to have incorrectly

    focused on appellants failure to set forth any medical evidence to suggest that there was

    any assault to the appellant. No reference whatsoever was made to Dr. Simpsons

    testimony, his role as appellants treating doctor, nor to his expert opinion ofappellants

    injuriesbeing consistent with the conduct alleged in appellants complaint. Based on the

    last sentence in paragraph 4 of the courts ruling, it is clear that the trial court did not

    consider Dr. Simpsons testimony in any regard.

    Appellant asserts that Dr. Simpsons testimony should have been considered

    keeping with the rule that the test in each case is whether the witness has sufficient skill

    or experience in the particular field so that his testimony would be likely to assist the jury

    in the search for the truth. Mann v. Cracchiolo (1985) 38 Cal. 3d 18 [210 Cal.Rptr. 762,

    694 P.2d 1134].

    Appellant, through Dr. Simpson, provided independent evidence, including:

    medical reports and the medical testimony of Dr. Simpson. However, the trial court failed

    to see this evidence as independent evidence. Moreover, if the trial court found that Dr.

    Simpsons testimony or medical reports were in admissible, the trial court never ruled

    upon this issue during trial, prohibiting appellant from making the appropriate objections.

    The trial court incorrectly gave substantial weight to respondents offered evidence

    of the telephone call to 911. The appellant failed to use the phrases assault or batterywhen speaking with police officers that it was demonstrative of the assault and battery to

    not have occurred. However, testimony by appellant and respondents showed that

    communications took place as the members (most of who are relatives) immediately

    called a meeting, between the times that the police were called and the time they actually

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    arrived at the church, to address the issue that had arisen. Still the court was not permitted

    to afford this insufficient evidence the weight it did.

    The trial courts failure to acknowledge that failure to report to law authority with

    specific legal terms, conduct that may later be researched, then brought in a legal action

    is not dispositive of any elements of the complaint.

    II. THE TRIAL COURTS CONSIDERATION OF PRIOR LAWSUITS WAREACTS OF JUDIAL BIAS

    The statement given by the trial court in its ruling entered on June 29, 2012,

    demonstrates that the trial court was tainted by judicial bias that appellant could not have

    received a fair adjudication on the merits of her complaint. There has been a series of

    statements and actions by the trial court that clearly demonstrate significant judicial

    prejudice against the appellants. These prejudicial statements and actions of their own

    accord, apart from the Trial, made it impossible for the Appellant to receive a fair

    judgment. Indeed, some of these actions of the trial court are discussed as separate

    grounds of appeal herein.

    In paragraph six of the court ruling, the trial court states: The lawsuit is but one of

    multiple legal actions involving disputes about the current and future leadership of the

    churchthe credibility of the plaintiff and her witnesses is undermined by their

    simmering and longstanding disagreement with other in the church. These assumptions

    are based upon trial courts priorjurisdiction over other civil actions between the church

    members, (whom it just happens are relatives). However, appellant made no contention

    or dispute of leadership in her complaint. The trial courts statement shows that it

    weighed appellant and her witnesses testimony based on its perception that the

    controversy was a dispute over leadership of the church, resulting in judicial bias.

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    Moreover, the appellant, in Superior Case No. NC052443, where she was named a

    defendant was successful in that action as to the allegations made against her. Although

    there is an appeal submitted to this court in that action, it only addresses appellants belief

    that the trial court made certain order that was outside the pleadings of the complaint.

    (Court of Appeals case number B233965.).

    Judicial bias, when found, is considered to be a structural due process error that is

    reversibleper se because it prevents a fair trial. Judith P. v. The Superior Court (2002)

    102 Cal. App. 4th 535, 554-558; Catchpole v. Brannon (1995) 36 Cal. App. 4th 237, 262;

    Marriage of Iverson (1992) 11 Cal. App. 4th 1495; see also Eisenberg et al, California

    Practice Guide, Civil Appeals and Writs (The Rutter Group 2003) Ch. 8, 8:308-310.5,

    pages 8-138 to 8-140.

    In Judith P. v. The Superior Court, that court held that in contrast, "structural"

    errors involve "`basic protections, [without which] a criminal trial cannot reliably serve

    its function as a vehicle for determination of guilt or innocence, and no criminal

    punishment may be regarded as fundamentally fair." (Arizona v. Fulminante, 499 U.S. at

    p. 310, 111 S.Ct. 1246, italics added.) Examples of such structural errors that result in

    automatic reversal (the per se reversible error standard) include total deprivation of the

    right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant's

    race from a grand jury, denial of the right to self-representation at trial, denial of the right

    to a public trial, and an erroneous reasonable doubt instruction to the jury. (Id. at pp. 309-

    310, 111 S.Ct. 1246.).

    Although, the Judith P court viewed this under criminal conduct, appellant will argue

    that a biased judge, under any trial court procedure is "structural" error. A criminal

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    prosecution as with a civil trial ends with a single trial. If a party has been deprived of

    fundamental rights, he or she may point to the deprivation of a constitutional right as

    having led to such conviction or adverse judgment. The conviction or judgment, if

    obtained in violation of a constitutional right, for example, the denial of the constitutional

    right to counsel or judicial bias is a denial of the constitutional right to liberty. Supra, 102

    Cal. App. 4th 535, 554-558.

    In the case at bar, considered as a whole, the trial court's comments reflect a

    predetermined disposition to rule against appellant based on its belief that this

    controversy was over the current and future leadership of the church. This further

    becomes apparent where the trial court incorrectly states that appellant produced no

    medical independent evidence. Supra, 102 Cal. App. 4th 535, 554-558.

    Appellant contend that this court may properly hear this issue. This court should not

    hold that appellant had a duty to object or to raise that issue in some other appropriate

    fashion in the trial court as a waiver of the claim by not doing so. In Catchpole v.

    Brannon, the court held, the rule that an appellate court will not consider points not raised

    at trial does not apply to "[a] matter involving the public interest or the due

    administration of justice." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, 315, p.

    326.) See Catchpole v. Brannon, supra. Asserting that reversal is mandated not only

    where actual bias is found, but also where the judge's actions give rise to the appearance

    of bias, appellant relies on the venerable principle that "`[t]he trial of a case should not

    only be fair in fact, but it should also appear to be fair. And where the contrary appears, it

    shocks the judicial instinct to allow the judgment to stand.'" (Webberv. Webber(1948)

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    33 Cal.2d 153, 155 [199 P.2d 934], quotingPrattv.Pratt(1903) 141 Cal. 247, 252 [74 P.

    742].) See also canon 2 of the California Code of Judicial Conduct.

    Here it plainly appears that there was no consideration of the medical evidence

    offered by Dr. Simpson but rather a bias determination that this action was one for

    current and future leadership of the church ibid. at trial court ruling at paragraph six..

    (Pratt v. Pratt, supra, 141 Cal. 247, 251).

    III. THE TRIAL COURT FURTUR DEMONSTATED JUDICAL BIAS WHEN ITFAILED TO CONSIDER THE INDEPENDENT EVIDENCE PROVIDED BY DR.

    SIMPSON.

    Canon 2 of the California Code of Judicial Conduct, states that: A judge shall

    respect and comply with the law and shall act at all times in a manner that promotes

    public confidence in the integrity and impartiality of the judiciary. A judge shall not

    make statements, whether public or nonpublic, that commit the judge with respect to

    cases, controversies, or issues that are likely to come before the courts or that are

    inconsistent with the impartial performance of the adjudicative duties of judicial office.

    The Code of Judicial Conduct also acknowledges that the absence of judicial

    impartiality may be based on impartial performance of the adjudicative duties of judicial

    office. Thus, in order to advance the precept that "A Judge Should Perform the Duties of

    Judicial Office Impartially and Diligently" (Cal. Code Jud. Conduct, canon 3), the code

    directs that "[a] judge should not, in the performance of judicial duties, by words or

    conduct, manifest bias or prejudice, including but not limited to bias or prejudice based

    upon impartially. It bears noting that allegations of such bias or prejudice are particularly

    disquieting where, as in this case, they relate to factual rather than legal issues, because

    "... a trial judge's factual findings are generally accorded considerable deference whereas

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    legal rulings are subject to plenary appellate review." (United Farm Workers of America

    v. Superior Court 170 Cal. App. 3d at pp. 104-105 Hurtado v. Statewide Home Loan Co.

    (1985) 167 Cal. App. 3d 1019, 1023-1025 [213 Cal.Rptr. 712].).

    In the instant case, appellant argue that the failure of the trial court to consider Dr.

    Simpson testimony, the medical reports, and the trial courts undue weight placed upon

    the fact that the appellant failed to use the phrases assault and battery when

    communicating with the Long Beach Department, coupled with the trial courts belief

    that this case was of the same nature as prior lawsuits between the parties further

    demonstrates judicial bias.

    Where the average person could well entertain doubt whether the trial judge was

    impartial, appellate courts are not required to speculate whether the bias was actual or

    merely apparent, or whether the result would have been the same if the evidence had been

    impartially considered and the matter dispassionately decided (Webber v. Webber, supra,

    33 Cal. 2d at pp. 161-162; Pratt v. Pratt, supra, 141 Cal. at p. 252), but should reverse the

    judgment and remand the matter to a different judge for a new trial on all issues. ( 170.1,

    subd. (c).

    CONCLUION

    The trial court consideration of and relying upon prior civil litigation resulted

    in prejudicial bias in this action, and the failure to consider Dr. Simpson testimony or

    give reasoning why his testimony would not be admissible should have been stated by the

    trial court. The Judgment should be vacated.

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    CERTIFICATE OF COMPLIANCE

    Pursuant to rule 8.204(C), of the California Rule of Court, I hereby certify that this

    brief contains 2,711 word, including footnotes. In making this certification, I have relied

    on the word count of the computer program used to prepare this brief.

    By:___________________________

    MARBELLA WASHINGTON-ALLEN