Poe v. Pioneer Medical Group CA2/1

Filed 11/2/23 Poe v. Pioneer Medical Group CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION ONE

HENRY POE, B314246

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC721826)
v.

PIONEER MEDICAL GROUP, et al.,

Defendants and Respondents.
___________________________________

HENRY POE, B316457

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC721826)
v.

SOUTHERN CALIFORNIA
INFECTIOUS DISEASE MEDICAL
GROUP, INC., et al.,

Defendants and Respondents.
 APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales, Margaret Miller Bernal, and
Raul Anthony Sahagun, Judges. Affirmed.
Robert C. Moest for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport,
Amy E. Rankin; Carroll, Kelly, Trotter & Franzen, Richard D.
Carroll, and Daniel Z. Weinberg for Defendants and Respondents
Pioneer Medical Group, Kathleen Morgan, Charles Kung,
Richard Garcia, Thomas Mahowald, Sidalia Sousa, Wilbert
Jordan.
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport,
Amy E. Rankin; David Weiss Law, David J. Weiss, Daniel V.
Farrugia, and Sara K. Mores for Defendants and Respondents
Southern California Infectious Disease Medical Group and Patti
Morris.
___________________________________

1
Henry Poe sued his medical service providers for
professional negligence. After several judges ruled adversely to
him on discovery and other matters, Poe petitioned several times
to disqualify the judges on the grounds of bias and corruption.
All petitions were denied, and those rulings became final. The
trial court subsequently granted defendants’ unopposed motion
for summary judgment and entered judgment accordingly. Poe
contends the court’s refusal to disqualify the challenged judges
violated his due process rights because they made several
erroneous rulings against him.

1
A pseudonym.

2
 We disagree. Assuming the rulings were erroneous, to
establish that refusal to disqualify a judge violates due process
the offended party must show more than that the judge made
erroneous rulings, he must adduce extreme facts showing the
rulings resulted from judicial bias. Poe fails to do so. We
therefore reject the contention that his due process rights were
violated, and affirm the judgment.
BACKGROUND
A. Complaints
1. Original and First Amended Complaints
On September 14, 2017, Poe presented to defendant
Kathleen Morgan, D.O., of Pioneer Medical Group (Pioneer),
complaining of a throat infection and skin lesions. He requested
a referral to an infectious disease specialist, which he did not
receive until two weeks later from a different Pioneer doctor,
defendant Charles Kung, M.D.
Almost a year later, Poe filed a complaint against Pioneer,
Morgan, Kung, Richard Garcia, M.D., Thomas Mahowald, Sidalia
Sousa, Wilbert Jordan, M.D. (the Pioneer defendants), and
against Southern California Infectious Disease Medical Group
(SCIDMG) and Patti Morris (the SCIDMG defendants).
Following two demurrers and motions to strike, Poe’s first
amended complaint, which is operative, asserted one cause of
action for negligence. Poe’s essential allegation was that
defendants wrongfully refused to treat him.
2. Second Amended Complaint
On September 13, 2019, Poe filed a motion for leave to file a
second amended complaint, asserting causes of action for (1)
negligence, (2) reckless denial of medical services, (3) intentional
infliction of emotional distress, and (4) breach of contract. The

3
court denied the motion without prejudice on the ground that Poe
failed to submit a declaration in compliance with California Rules
of Court, rule 3.1324.
On September 8, 2020, Poe filed a second motion for leave
to file a second amended complaint.
B. Discovery Rulings
1. Judge Rosales
Poe failed to appear for his deposition on April 17, 2019,
and the court, Judge Olivia Rosales presiding, granted
defendants’ motion to compel his attendance. On the date of the
second attempt, Poe appeared without his attorney, who
represented he was involved in another matter in another court.
Pioneer defense counsel suspended the deposition and moved to
compel Poe’s and his attorney’s attendance. The court granted
the motion, but by July 23, 2020, Poe still had not appeared for
deposition, whereupon the court granted the Pioneer defendants’
2
third motion to compel his attendance.
In other discovery proceedings, the Pioneer defendants filed
two motions to compel further responses to written discovery.
Judge Rosales ultimately granted the motions and imposed $600
in sanctions against Poe.
On January 12, 2021, Poe moved to disqualify Judge
Rosales on the ground that her erroneous discovery rulings
demonstrated she was unqualified to hold the office. We discuss
this motion below.

2
Poe did appear for deposition on March 11, 2020, but only
to immediately suspend the deposition so he could seek a
protective order.

4
 2. Judge Sahagun
On October 13, 2020, after the court had sua sponte
entered a protective order requiring that documents containing
confidential information be designated as “Protected Documents”
and treated as confidential, Poe filed a motion for the following
additional protective orders: (1) That “individually identifiable
information pertaining to plaintiff” be kept confidential and not
be publicly disclosed unless explicitly authorized by the court; (2)
that defense counsel file declarations attesting they “carefully
reviewed all of the HIPAA [Health Insurance Portability and
Accountability Act] regulations applicable to the law firm” and
“determined that [they were] in full compliance with those
regulations”; (3) that defense counsel be found to have violated
HIPAA; and (4) that all court records pertaining to the case be
sealed.
On April 5, 2021, the court, Judge Raul Sahagun presiding,
issued a tentative order denying the motion, finding that Poe’s
requests were “vague and uncertain.”
The next day, April 6, 2021, Poe moved to disqualify Judge
Sahagun, arguing his “attack” on Poe for making “vague and
uncertain” requests demonstrated animus. We discuss this
motion below.
Also on April 6, 2021, the court issued a minute order
denying Poe’s motion for a protective order. The final order made
no mention of Poe’s requests being vague or uncertain.
On January 28, 2021, the Pioneer defendants moved for
terminating sanctions on the ground that Poe had misused the
discovery process. Poe did not oppose the motion but filed his
own motion for monetary sanctions against the Pioneer
defendants and their counsel pursuant to Code of Civil Procedure

5
sections 128.5 and 128.7, arguing their motion for terminating
sanctions was frivolous. The Pioneer defendants subsequently
filed another motion for terminating sanctions, in which the
SCIDMG defendants joined, on the ground that Poe had misused
the discovery process.
C. Pioneer Defendants’ Motion for Summary Judgment
On November 12, 2020, the Pioneer defendants moved for
summary judgment on the ground that no standard of care was
breached and no connection existed between their alleged
negligence and Poe’s claimed injury.
In support of the motion, Eduardo Añorga, M.D., opined:
(1) At all times in their treatment of Poe, defendants complied
with the applicable standard of care; (2) no act or omission by
defendants contributed to Poe’s alleged injury (a gonorrhea
throat infection); and (3) there was no evidence that Poe suffered
from the alleged injury.
Rather than oppose the motion, Poe requested a dismissal
without prejudice as to all Pioneer defendants (not as to the
SCIDMG defendants), and on April 1, 2021, filed a notice of entry
of dismissal. Accordingly, the court took his motion for leave to
file a second amended complaint off calendar.
On April 5, 2021, the Pioneer defendants filed an ex parte
application asking the court to reject Poe’s request for dismissal
as an improper tactic to thwart a ruling on their pending motions
for summary judgment and terminating sanctions.
On April 9, 2021, Judge Sahagun denied Poe’s request for a
dismissal but also denied the Pioneer defendants’ summary
judgment motion, finding that a second amended complaint, filed
September 14, 2020, and alleging more than simply negligence,
was operative. The court construed defendants’ motion for

6
summary judgment as a motion for summary adjudication on the
second amended complaint’s cause of action for negligence, and
granted that motion but denied summary judgment as to the
remaining claims, which defendants’ motion had not addressed.
On May 7, 2021, the Pioneer defendants applied ex parte
for “correction” of the April 9 summary judgment ruling,
explaining during the hearing that the purported second
amended complaint was never served on them and never became
operative.
On May 28, 2021, Judge Sahagun denied the Pioneer
defendants’ May 7 ex parte application for procedural reasons but
sua sponte reconsidered its summary judgment ruling pursuant
to Le Francois v. Goel (2005) 35 Cal.4th 1094, 1101. Upon
reconsideration, Judge Sahagun (1) denied Poe’s March 29, 2021
motion for dismissal; (2) found no proof of service of the second
amended complaint had been filed; (3) credited defense counsel’s
representation, made at the May 28 hearing, that he was
unaware a second amended complaint had been filed until the
April 6, 2021 hearing on the Pioneer defendants’ summary
judgment motion; (4) ordered the putative second amended
complaint stricken based on this representation, and because no
proof of service existed; (5) found the first amended complaint
was operative; and (6) found there was no triable issue of
material fact as to Poe’s sole claim for negligence because there
was no evidence that defendants fell below the standard of care
in their treatment of him, and no evidence that they caused or
contributed to his alleged injury.
The court entered judgment in favor of the Pioneer
defendants, from which Poe appeals.

7
D. SCIDMG Defendants’ Demurrer and Motion to Strike
On May 27, 2021, the SCIDMG defendants demurred to
and moved to strike Poe’s second amended complaint on the
ground it was never served on them. These motions were
ultimately taken off calendar as moot.
E. SCIDMG Defendants’ Motion for Summary Judgment
On June 4, 2021, the SCIDMG defendants moved for
summary judgment, arguing no standard of care was breached
and no connection existed between their alleged negligence and
Poe’s claimed injury.
In support of the motion, Brian Blackburn, M.D., opined
that (1) the SCIDMG defendants complied with the applicable
standard of care at all times in treating Poe, (2) and there was no
causal connection between their alleged negligence and Poe’s
claimed injury, and (3) there was no evidence that Poe suffered
from the alleged injury. Dr. Blackburn also declared that there
were no records of Poe ever being treated at SCIDMG.
Poe did not oppose the motion.
On September 14, 2021, the court granted the SCIDMG
defendants’ summary judgment motion, finding no triable issue
of material fact existed as to Poe’s negligence claim because there
was no evidence that the SCIDMG defendants fell below the
standard of care in their treatment of Poe.
The court entered judgment accordingly, from which Poe
separately appeals.
F. Pending Sanctions Motions
On July 22 and September 16, 2021, Judge Sahagun took
the Pioneer defendants’ motion for terminating sanctions and
Poe’s Code of Civil Procedure sections 128.5 and 128.7 motions
for monetary sanctions off calendar as moot, noting Poe’s section

8
128.7 motion was procedurally improper. Judge Sahagun further
noted that even had he considered Poe’s motions, he would have
denied them because no facts or evidence supported a finding
“that [d]efendants or their attorneys acted in bad faith or for the
sole purpose of causing unnecessary delay.”
DISCUSSION
A. Preliminary Matter
Preliminarily, Poe informally invites us to recuse ourselves
due to the several instances over many years in which we
“disregarded” “published law or well-settled law,” specifically in
two cases involving his current attorney. If we do so, he requests
that we refrain from assigning the matter to Division Four of this
District, which also, according to Poe, has a penchant for
disregarding the law. We decline the invitation.
B. Summary Judgment
1. Legal Principles
The elements of a cause of action for medical professional
negligence are: “(1) the duty of the professional to use such skill,
prudence, and diligence as other members of his profession
commonly possess and exercise; (2) a breach of that duty; (3) a
proximate causal connection between the negligent conduct and
the resulting injury; and (4) actual loss or damage resulting from
the professional’s negligence.” (Powell v. Kleinman (2007) 151
Cal.App.4th 112, 122.)
“[T]he causation inquiry has two facets: whether the
defendant’s conduct was the ‘cause in fact’ of the injury; and, if
so, whether as a matter of social policy the defendant should be
held legally responsible for the injury.” (Osborn v. Irwin
Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252.) To
determine causation in fact, California has adopted the

9
substantial factor test set forth in the Restatement Second of
Torts, section 431. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041,
1052; Rest.2d. Torts, § 431 [negligent conduct is a legal cause of
harm if it is a substantial factor in bringing about the harm].) An
event will be considered a substantial factor in bringing about
harm if it is “recognizable as having an appreciable effect in
bringing it about.” (Rest.2d Torts, § 433, com. (d).)
In a medical negligence case, “ ‘causation must be proven
within a reasonable medical probability based upon competent
expert testimony. Mere possibility alone is insufficient to
establish a prima facie case.’ ” (Dumas v. Cooney (1991) 235
Cal.App.3d 1593, 1603.)
A trial court properly grants summary judgment “ ‘if all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
3
as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) A
defendant may establish its right to summary judgment by
showing that one or more elements of the cause of action cannot
be established or that there is a complete defense to the cause of
action. ([§] 437c, subd. (p)(2).)” (Neiman v. Leo A. Daly Co.
(2012) 210 Cal.App.4th 962, 967.) “Once the moving defendant
has satisfied its burden, the burden shifts to the plaintiff to show
that a triable issue of material fact exists as to each cause of
action. [Citation.] A triable issue of material fact exists where
‘the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.’ ” (Ibid.)

3
Undesignated statutory references will be to the Code of
Civil Procedure.

10
 On appeal, we apply an independent standard of review to
determine whether a trial is required—whether the evidence
favoring and opposing the summary judgment motion would
support a reasonable trier of fact’s determination in the plaintiff’s
favor on the cause of action or defense. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In doing so we view the
evidence in the light most favorable to the party opposing
summary judgment. (Id. at p. 843; Alexander v. Codemasters
Group Limited (2002) 104 Cal.App.4th 129, 139.) We accept as
true the facts shown by the evidence offered in opposition to
summary judgment and the reasonable inferences that can be
drawn from them. (Spitzer v. The Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1385-1386.)
2. Defendants Established that No Triable Issue
Exists
Here, defendants presented the declarations of Eduardo
Añorga, M.D., and Brian Blackburn, M.D., who opined that
defendants complied with the standard of care at all times in
their treatment of Poe, and no act or omission on their part
contributed to Poe’s alleged injury. Drs. Añorga and Blackburn
also opined that no evidence suggested Poe suffered from the
alleged injury. Finally, Dr. Blackburn declared that no evidence
indicated the SCIDMG defendants treated Poe at all.
This evidence carried defendants’ burden to show that
three elements of medical professional negligence could not be
established: breach of the standard of care, causation, and
damages. The burden therefore shifted to Poe to show that a
triable issue of material fact existed as to his negligence cause of
action.

11
 Poe chose not to oppose defendants’ motion, and thus failed
to carry his burden. The trial court therefore properly concluded
that defendants were entitled to a judgment as a matter of law
because no triable issue existed as to any material fact.
Poe argues that Drs. Añorga’s and Blackburn’s opinions
lacked foundation because they were based on a review of
medical records that Poe alleged were “distorted, fabricated, and
falsified by corrupt and incompetent healthcare providers.”
We disagree. Summary judgment may be resisted only
with evidence, not allegations. (§ 437c, subd. (p)(2) [once a
defendant has shown that one or more elements of a cause of
action cannot be established, the plaintiff “shall not rely upon the
allegations or denials of its pleadings to show that a triable issue
of material fact exists”].) Poe’s unsubstantiated allegations that
his medical providers falsified records neither created a triable
issue nor undermined the doctors’ opinions.
Poe argues Dr. Blackburn’s opinion lacked foundation
because he admitted he had no evidence that the SCIDMG
defendants treated Poe. We disagree. Dr. Blackburn relied on
Pioneer records to opine that nothing the initial medical
professionals did caused Poe’s alleged injury, and he did not even
suffer from such an injury. This evidence established that the
secondary medical professionals, SCIDMG, could not have caused
Poe’s injury either.
Poe argues he could not adequately oppose the defendants’
motions for summary judgment without waiving his
jurisdictional objections, post. However, because he supports the
argument with neither legal analysis nor citation to authority, we
deem it forfeited. (See Lee v. Kim (2019) 41 Cal.App.5th 705, 721
[unsupported argument on appeal is deemed forfeited].)

12
C. Poe Received Due Process
Poe contends summary judgment was improper because his
due process rights were violated when he was “was forced to
contend with three overtly corrupt judges” who “whimsically
disregarded” the published law, “fabricated legal rules,” and
“fabricating facts when necessary to support their corrupt
conduct.” Specifically, he argues his due process rights were
violated when: (1) Judge Sahagun made several erroneous
rulings, ignored documents in the court file, and accepted as true
a false statement made by defense counsel during oral argument
at a hearing to revisit the summary judgment ruling; (2) Judge
Rosales imposed monetary sanctions on him for abusing the
discovery process even though they were requested for the first
time only in defendants’ reply papers; and (3) Judge Bernal (a)
penalized Poe for failing to serve a document that court policies
made impossible to serve and (b) assigned the case to Judge
Sahagun.
1. Relevant Proceedings
a. Judge Rosales—Discovery
As noted above, on January 12, 2021, Poe filed a
“Memorandum of Points and Authorities Regarding Judicial
Officer” (Memorandum) in which he argued Judge Rosales’s
rulings granting defendants’ discovery motions, ante, “were
inconsistent with the controlling legal authorities,” thereby
demonstrating her “whimsical disregard” of the law and lack of
“the qualifications to continue to render judicial decisions in this
litigation.”
On February 2, 2021, Poe filed an ex parte application in
which he construed the above Memorandum to be a statement of
disqualification and argued that because the court failed to

13
timely respond to it, he was entitled to an order reassigning the
case from Judge Rosales to a new department.
The court, Judge Margaret Bernal presiding, construed
Poe’s Memorandum as a statement of disqualification and
ordered it stricken because it was untimely and improperly
served, and because it failed to demonstrate legal grounds for
disqualification. The court denied Poe’s ex parte application. Poe
petitioned us for a writ of mandate directing the trial court to
grant his application, which we denied.
b. Judge Bernal—February 2, 2021
Disqualification Motion
On April 6, 2021, Poe filed an objection to the jurisdiction of
Judge Bernal over any hearing involving defense counsel,
arguing Judge Bernal erred by denying his February 2, 2021 ex
parte application to reassign the case from Judge Rosales, ante.
Judge Bernal construed Poe’s objection as a statement of
disqualification and ordered it stricken because it was improperly
served and demonstrated no legal grounds for disqualification.
c. Judge Sahagun--Discovery
As noted above, on April 6, 2021, Poe filed an objection to
the jurisdiction of Judge Sahagun over “pending motions” on the
ground that in his April 5, 2021 tentative ruling, ante, Judge
Sahagun demonstrated a “whimsical disregard of the law” and
“animus against Plaintiff” by: (1) Characterizing Poe’s requests
as vague and uncertain; (2) disregarding that defendants’ counsel
had failed to maintain the confidentiality of Poe’s identity; and
(3) requiring Poe to submit a declaration explaining why his
identity should be confidential.
Judge Sahagun construed this objection as a statement of
disqualification and ordered it stricken for failure to demonstrate

14
legal grounds for disqualification. Poe petitioned us for a writ,
which we denied.
d. Judge Bernal and Sahagun—April 6, 2021
Disqualification Motions
On April 23, 2021, Poe filed two more objections to Judges
Bernal and Sahagun, arguing they erred by striking his prior two
statements of disqualification filed on April 6, 2021. The court
construed the objections to be statements of disqualification and
ordered them stricken. As to Poe’s objection to Judge Bernal, the
court found it was repetitive of his prior motion and failed to
disclose legal grounds for disqualification.
e. Judge Sahagun—Summary Judgment
On May 24, 2021, Poe filed an objection to the jurisdiction
of Judge Sahagun over a then-pending ex parte motion brought
by defendants. On May 27, 2021, Poe filed an objection “to
consideration by Judge Sahagun of [a] false assertion” by defense
counsel, arguing that at the hearing on defendants’
reconsideration motion, Judge Sahagun credited defense
counsel’s representation that defendants were unaware that a
second amended complaint had been filed. The court overruled
the objections.
f. Judge Sahagun—Several Rulings
On June 14, 2021, Poe filed an objection to entry of
judgment due to the “stupefying level of bias” of Judge Sahagun
in his May 28, 2021 ruling (on its sua sponte reconsideration of
its order denying summary judgment), arguing Judge Sahagun
erroneously (1) overruled Poe’s May 27, 2021 disqualification
objection, (2) ordered the second amended complaint stricken,
and (3) granted summary judgment. Poe argued that Sahagun
“resorted to falsification of facts,” “chose to disregard

15
documents . . . if [they] would impede his goal of ruling against
Plaintiff,” and appeared to have been “successfully bribed” by
defendants’ counsel. Poe asked that Judge Sahagun recuse
himself. The court overruled the objection and declined plaintiff’s
invitation for Judge Sahagun to recuse himself.
g. Judges Rosales and Sahagun
On June 29, 2021, Poe filed two ex parte applications
seeking the recusal of Judges Rosales and Sahagun. Poe argued
that even though Judges Rosales and Sahagun were no longer in
the case, “the Southeast District of the Los Angeles Superior
Court routinely violates the due process rights of Plaintiff by
suddenly changing, without any reasonable Notice, the identity of
the judge who will adjudicate a particular motion,” and the
current motion was necessary to prevent Judges Rosales and
Sahagun from “suddenly emerging from her apparent status ‘in
hiding’ [to] issue some malevolent or overtly biased ruling.”
Judge Bernal sua sponte reassigned the case to Judge
Sahagun, who (1) found that Poe failed to demonstrate exigent
circumstances, (2) denied Poe’s application as to himself (Judge
Sahagun), and (3) transferred the remaining matter to Judge
Rosales. Judge Rosales found no basis to recuse herself and
denied Poe’s request.
h. Judge Bernal—June 29, 2021 Assignment
Order
On July 1, 2021, Poe filed an ex parte application seeking
the recusal of Judge Bernal on the ground that she demonstrated
malice and bias by assigning the case to Judge Sahagun on June
29, 2021, even though he had made “highly anomalous rulings” in
the litigation, demonstrating a “stupefying level of bias,” and
even though Poe had a motion pending before the California

16
Supreme Court to have Judge Sahagun removed from the
litigation. Judge Bernal denied the application.
i. Judge Sahagun—Several Proceedings
On August 16, September 7, and September 9, 2021, Poe
filed objections to Judge Sahagun hearing the SCIDMG
defendants’ demurrer and motion for summary judgment and
Poe’s motion for monetary sanctions. The court took the
demurrer off calendar and denied Poe’s motion as to the motion
for summary judgment. No ruling on the third motion appears in
the record.
2. Applicable Law
a. Disqualification Statutes—No Actual Bias
Required
In California, a judge shall be disqualified from a
proceeding if “[a] person aware of the facts might reasonably
entertain a doubt that the judge would be able to be impartial.”
(§ 170.1, subd. (a)(6)(A)(iii).) No actual bias need be shown.
(People v. Panah (2005) 35 Cal.4th 395, 446.) This standard “ ‘ “is
fundamentally an objective one.” If a reasonable member of the
public at large, aware of all the facts, would fairly entertain
doubts concerning the judge’s impartiality, disqualification is
mandated.’ ” (Ibid.)
A trial court’s disqualification orders are nonappealable,
and may be reviewed only by petition for a writ of mandate. (§
170.3, subd. (d); People v. Panah, supra, 35 Cal.4th at p. 444.)
Here, Poe petitioned for a writ as to some of the trial court’s
disqualification orders and not others, but in any event none of
the orders may be challenged on appeal.
Poe argues that disqualification of a judge under section
170.1 is appropriate where the court’s rulings suggest “whimsical

17
disregard” of the published law. (People v. Gulbrandsen (1989)
209 Cal.App.3d 1547, 1562.) He also argues the trial court erred
in disregarding several peremptory challenges contained within
his various objections to the judges in this case. The points are
irrelevant because Poe may not now appeal the court’s rulings
under sections 170.1 or 170.6.
He may, however, “assert on appeal a claim of denial of the
due process right to an impartial judge.” (People v. Mayfield
(1997) 14 Cal.4th 668, 811, overruled on another ground by
People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) We will
therefore analyze his claim of judicial bias on due process
grounds.
b. Due Process—Probability of Actual Bias
Required
A fair trial in a fair tribunal is a basic requirement of due
process. (In re Murchison (1955) 349 U.S. 133, 136.)
For example, due process is violated when the judge “has a
direct, personal, substantial, pecuniary interest in reaching a
conclusion against him in his case.” (Aetna Life Ins. Co. v. Lavoie
(1986) 475 U.S. 813, 821-822.) Here, nothing in the record
suggests, and Poe does not claim, that Judges Rosales, Sahagun
or Bernal had any direct, personal, substantial, pecuniary
interest in reaching a conclusion against Poe.
Even absent such an interest, however, due process is
violated where a high probability of bias exists. (People v.
Freeman (2010) 47 Cal.4th 993, 996.)
“[W]hile a showing of actual bias is not required for judicial
disqualification under the due process clause, neither is the mere
appearance of bias sufficient. Instead, based on an objective
assessment of the circumstances in the particular case, there

18
must exist ‘ “the probability of actual bias on the part of the judge
or decisionmaker [that] is too high to be constitutionally
tolerable.” ’ [Citation.] Where only the appearance of bias is at
issue, a litigant’s recourse is to seek disqualification under state
disqualification statutes: ‘Because the codes of judicial conduct
provide more protection than due process requires, most disputes
over disqualification will be resolved without resort to the
Constitution.’ ” (People v. Freeman, supra, 47 Cal.4th at p. 996,
italics added.) “[O]nly the most ‘extreme facts’ would justify
judicial disqualification based on the due process clause.” (Ibid.)
Such extreme facts may exist, for example, where a judge’s
compensation was derived from the fines assessed in a case so as
to “ ‘offer a possible temptation to the average man as a judge to
forget the burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice, clear and true
between the State and the accused . . . .’ (Caperton v. A.T.
Massey Coal Co., Inc. (2009) 556 U.S. 868, 878 (Caperton).)
Extreme facts supporting disqualification may also exist
where a judge is both the charging and convicting authority.
(Caperton, supra, 556 U.S. at p. 880.)
On the other hand, “[m]ere judicial error does not establish
bias and normally is not a proper ground for disqualification,”
even under California’s codes of judicial conduct, which provide
more protection than the federal Due Process clause. (People v.
LaBlanc (2015) 238 Cal.App.4th 1059, 1079; see also Blakemore
v. Superior Court (2005) 129 Cal.App.4th 36, 59-60 [a trial judge’s
repeated erroneous rulings do not constitute sufficient evidence of
bias to warrant removal].)
The issue here is whether this case presents extreme facts
that require judicial disqualification on due process grounds.

19
 3. Application
a. Judge Rosales
Poe argues that Judge Rosales exhibited bias by
“disregarding” controlling legal authorities when granting
defendants’ discovery motions.
Our examination of the record reveals no indication that
Judge Rosales was biased. Even if, for the sake of argument,
Judge Rosales erroneously concluded Poe had abused the
discovery process, an erroneous ruling is not by itself so rare or
extreme an occurrence as to establish a high probability of actual
bias.
b. Judge Sahagun
Poe argues Judge Sahagun demonstrated bias by: (1)
characterizing, in a tentative ruling, Poe’s requests for a
protective order as vague and uncertain; (2) disregarding that
defendants’ counsel had failed to maintain the confidentiality of
Poe’s identity; (3) requiring Poe to submit a declaration
explaining why his identity should be confidential; (4) striking
two prior statements of disqualification he filed on April 6, 2021;
(5) erroneously accepting as true a misrepresentation by defense
counsel; (6) erroneously striking Poe’s May 27, 2021
disqualification objection; (7) erroneously ordering Poe’s second
amended complaint stricken; (8) erroneously granting summary
judgment; (9) falsifying facts; and (10) disregarding Poe’s
documents.
Assuming for argument that Judge Sahagun erred in every
action, ruling and comment to which Poe refers, such errors,
without more, do not establish bias. “Erroneous rulings against a
litigant, even when numerous and continuous, form no ground for
a charge of bias or prejudice, especially when they are subject to

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review [citations]. Nor are a judge’s expressions of opinion,
uttered in what he conceives to be the discharge of his judicial
duty, evidence of bias or prejudice.” (McEwen v. Occidental Life
Ins. Co. (1916) 172 Cal. 6, 11.)
c. Judge Bernal
Poe argues Judge Bernal exhibited bias by: (1) erroneously
denying his February 2, 2021 ex parte application to reassign the
case from Judge Rosales; (2) erroneously striking two prior
statements of disqualification Poe filed on April 6, 2021; and (3)
assigning the case to Judge Sahagun on June 29, 2021.
Such rulings, even if erroneous, do not establish bias.
As to all three judges, each of the purported acts of judicial
misconduct of which Poe complains amounts to nothing more
than a disagreement with the trial court’s rulings. They disclose
no bias and no due process violations.
D. Discovery and Other Rulings
Poe argues the court’s order compelling him to attend his
deposition, the order denying his motion for a protective order,
and the order assigning the case to Judge Sahagun should all be
reversed. We decline to revisit those orders because summary
judgment rendered them moot. Although “[a] discovery order
may be reviewed on appeal from the final judgment on the
merits. [Citations.] The judgment will not be reversed unless the
error is so prejudicial that it constitutes a miscarriage of justice.”
(County of Nevada v. Kinicki (1980) 106 Cal.App.3d 357, 363.)
Here, Poe offers no reason why the order compelling his
deposition resulted in prejudice, and none appears from the
record.
Poe argues that Judge Sahagun’s order taking Poe’s motion
for monetary sanctions off calendar was an abuse of discretion.

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However, because he supports the argument with neither legal
analysis nor citation to authority, we deem it forfeited. (See Lee
v. Kim, supra, 41 Cal.App.5th at p. 721.)
E. End Word
We regret we must admonish Poe’s counsel about the
inappropriate personal attacks in his briefs on the trial judges.
When briefing an appeal, an ad hominem attack on the trial
judge is not only unpersuasive, but also unseemly. (Niles
Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 794-
795; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1176.) We
remind counsel he is an officer of the court, and has a duty to
“maintain the respect due to the courts of justice and judicial
officers.” (Bus. & Prof. Code, § 6068, subd. (b); see People v.
Massey (1955) 137 Cal.App.2d 623, 626.) We do not condone
Poe’s counsel’s lack of professionalism.
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

WEINGART, J.

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