Filed 4/12/22 Mowatt v. Chafiq CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHRISTOPHER MOWATT, B311870
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YD059396)
v.
HOUDA CHAFIQ,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Gia G. Bosley, Judge. Affirmed.
Christopher Mowatt, in pro. per., for Plaintiff and
Appellant.
No appearance for Respondent.
__________________________________
In this marital dissolution case, Petitioner and appellant
Christopher Mowatt (Father) appeals from a post-judgment order
changing the visitation schedule and requiring him to cooperate
to obtain a new passport for the parties’ minor child. The sole
issue raised on appeal concerns the family law court’s denial of
Father’s oral motion to disqualify the family law judge under
Code of Civil Procedure section 170.1.1 A determination
concerning disqualification under section 170.1 is not an
appealable order, however, and Father has not shown that his
due process right to an impartial judge was violated. Therefore,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and respondent Houda Chafiq (Mother), whose
marriage was terminated by a judgement entered in this case in
2011, share custody of one child. The parties’ prior visitation
schedule is not part of the record on appeal, but on February 20,
2020, Mother filed a request for an order seeking to change the
visitation schedule to provide Father with visitation on alternate
weekends and ordering Father to cooperate in obtaining a new
passport for the child. Father did not file any opposition to the
request.
A hearing was held on Mother’s request on January 13,
2021. At the hearing, Father requested a continuance to obtain
counsel. The family law judge denied the request for a
continuance because the matter had been pending for nearly a
year, but Father had not filed a responsive declaration or a
1 All further statutory references are to the Code of Civil
Procedure unless otherwise stated. In February 2021, Father
notified the family law court of his legal name change to Sinjin
Taidje Mahdi Khan. The respondent in the proceedings below,
Houda Chafiq, has not filed a respondent’s brief on appeal.
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request to continue, and his request for a continuance was
untimely.
After the family law court denied the request for a
continuance, Father interjected, “You’re disqualified under C.C.P.
170.1 effectively immediately. You are no longer on the case.”
The family law court stated that Father could file a request for
disqualification. Father responded, “No, that’s 170.6. [¶] A
170.1 is where I disqualify you for prejudice and bias.” The
family law court explained that Father still had to file a motion.
Father disagreed, “No, Ma’am. [¶] A notice is sufficient to
remove you, and I have several days to file a notice or to file the
motion. [¶] Court counsel will advise you on your options at this
point, but effective immediately, you are no longer on this case --”
The family law court reiterated the ruling denying a continuance.
The family law court directed Father to the statutes containing
the requirements to submit a request for disqualification if he
wanted to pursue the matter, and proceeded to hear argument on
the remaining issues.
At one point during the hearing, Father experienced
difficulty breathing. The family law court suggested that he step
outside, and the court took a brief recess in the case. By the time
the matter was called again, Father had not returned. The bailiff
reported that Father had continued to have difficulty breathing
and needed to take heart medication. The family law court
ordered the parties, including Mother and the minor’s counsel, to
return at 1:30 p.m. At 1:50 p.m., 20 minutes after the case had
been called, Father phoned into the hearing from his car. Father
participated in the hearing by telephone until he arrived in the
courtroom.
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The family law court modified Father’s visitation to
alternate weekends, without overnight visits. Both parties were
ordered to cooperate in applying for a duplicate passport for the
child. Father filed a notice of appeal from the January 13, 2021
order.
DISCUSSION
Oral Disqualification Motion Under Section 170.1
The sole issue that Father raises on appeal concerns the
denial of his oral motion to disqualify the family law judge under
section 170.1. However, the ruling on this motion is not
reviewable on appeal.2
Section 170.1 provides specific grounds for disqualification
of a trial judge for cause, including whether for any reason “[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).) In addition, “[b]ias or prejudice toward a lawyer in
2 On March 21, 2022, we invited the parties to file letter
briefs addressing the issue of appealability. Mowatt filed a
response conceding that “the issue of disqualification can only be
reviewed by and through a Writ of Mandate.” To the extent that
Mowatt’s response also includes arguments not related to
appealability, we decline to address new issues that Mowatt
failed to raise in his opening brief, which have been deemed
waived or abandoned. (Golden Door Properties, LLC v. County of
San Diego (2020) 50 Cal.App.5th 467, 554–555 [appellate review
is limited to issues adequately raised and supported in the
appellant’s opening brief].)
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the proceeding may be grounds for disqualification.” (§ 170.1,
subd. (a)(6)(B).)
“At the request of a party or on its own motion an appellate
court shall consider whether in the interests of justice it should
direct that further proceedings be heard before a trial judge other
than the judge whose judgment or order was reviewed by the
appellate court.” (§ 170.1, subd. (c).)
Section 170.3, subdivision (c)(1), provides in relevant part:
“If a judge who should disqualify himself or herself refuses or
fails to do so, any party may file with the clerk a written verified
statement objecting to the hearing or trial before the judge and
setting forth the facts constituting the grounds for
disqualification of the judge. The statement shall be presented at
the earliest practicable opportunity after discovery of the facts
constituting the ground for disqualification.” (§ 170.3, subd.
(c)(1).) The question of disqualification is heard by another judge
agreed to by all of the parties. (§ 170.3, subd. (c)(5).)
The exclusive means to obtain appellate review of a ruling
concerning the disqualification of a judge is by a writ of mandate.
(§ 170.3, subd. (d).) Section 170.3, subdivision (d), expressly
states in relevant part: “The determination of the question of the
disqualification of a judge is not an appealable order and may be
reviewed only by a writ of mandate from the appropriate court of
appeal sought only by the parties to the proceeding. The petition
for the writ shall be filed and served within 10 days after service
of written notice of entry of the court’s order determining the
question of disqualification.” (§ 170.3, subd. (d).)
“In People v. Panah (2005) 35 Cal.4th 395, 444 (Panah), the
Supreme Court reiterated that section 170.3, subdivision (d)
provides the only method by which a party may seek appellate
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review of [a ruling regarding] the disqualification of a judge: ‘As
we have repeatedly held, the statute means what it says: Code of
Civil Procedure section 170.3, subdivision (d) provides the
exclusive means for seeking review of a ruling on a challenge to a
judge, whether the challenge is for cause or peremptory.’ The
Supreme Court has also expressly rejected the claim that a
disqualification ruling is reviewable on appeal from a subsequent
judgment. (People v. Williams (1997) 16 Cal.4th 635, 652
[‘statutory judicial disqualification claim is not properly before us
on this automatic appeal following a judgment of death’]; People
v. Brown (1993) 6 Cal.4th 322, 333 [‘section 170.3[, subdivision]
(d) creates an exception to the general rule that interlocutory
rulings are reviewable on appeal from a final judgment’].)”
(Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th
665, 671–672 (Brown).)
There is no evidence in the record that Father complied
with the statutory procedures to request disqualification under
section 170.1 and 170.3. More importantly, a ruling on
disqualification is not appealable except by writ of mandate, and
not reviewable even on appeal from an appealable order. Father
is precluded in this appeal from seeking review of the January
13, 2021 order denying his oral motion for disqualification.
Due Process Right to Impartial Judge
“‘[N]otwithstanding the exclusive-remedy provision of Code
of Civil Procedure section 170.3, “a [party] may assert on appeal a
claim of denial of the due process right to an impartial judge.”
[Citation.]’ (Panah, supra, 35 Cal.4th at p. 445, fn. 16.) ‘The Due
Process Clause entitles a person to an impartial and
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disinterested tribunal in both civil and criminal cases.’ (Marshall
v. Jerrico, Inc. (1980) 446 U.S. 238, 242.)” (Brown, supra, 224
Cal.App.4th at p. 673.) To the extent that Father’s appeal could
be construed to attempt to raise a due process claim, it has no
support.
There is no evidence in the record that Father availed
himself of the procedure to obtain a disqualification ruling from
the lower court. In addition, nothing in our review of the
appellate record in this case reflects bias or lack of impartiality
by the family law judge in this case. Rulings made against
Father are not evidence of bias or impartiality. (Brown, supra,
224 Cal.App.4th at p. 674 [“The trial judge’s adverse legal rulings
and denial of a request for a continuance do not reflect personal
bias.”) In his appellate brief, Father describes circumstances
outside of the appellate record that he considers suspicious or
evidence of a lack of impartiality, such as minor’s counsel
appearing too promptly at hearings when they resumed after
breaks. Father speculates this means minor’s counsel must have
been on the phone with the judge during the breaks, planning
together on a ruling. Father’s wild conjecture in his appellate
brief on this and other purported examples of judicial bias have
no support whatsoever in the appellate record. In fact, the
reporter’s transcript of the hearing in this case reflects that the
family law judge did not simply accept the position of minor’s
counsel. We find no evidence in the record of bias or lack of
impartiality on the part of the family law judge against Father.
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DISPOSITION
The January 13, 2021 order is affirmed. The parties are to
bear their own costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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