bella's second appellate oping brief case
TRANSCRIPT
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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