Filed 9/29/15 M.S. v. R.D. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

M.S.,

 Plaintiff and Respondent,

v.

R.D.,

 Defendant and Appellant;

A.S., 

 Objector and Respondent.

 G049068

 (Super. Ct. No. 05P000379)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

James L. Waltz, Judge. Affirmed. Appellant’s motion to receive new evidence or, in the 

alternative, to take judicial notice. Denied. Appellant’s supplemental motion to receive 

new evidence or, in the alternative, to take judicial notice. Denied. Objector’s motion 

for sanctions for frivolous appeal. Denied. Objector’s request for judicial notice and/or 

to take additional evidence on appeal. Denied.
2

Law Office of Ronald B. Funk, Ronald B. Funk; Arnold & Porter, 

Anthony J. Franze, Daniel F. Jacobson and Noah L. Browne for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; and John S. 

Cate, Jr., for Objector and Respondent.

* * *

INTRODUCTION

The trial court described this “epic and toxic custody battle” as “litigation 

on Steroids.” The minor daughter is now 10 and one-half years old. The mother accuses 

the father of sexually abusing his daughter, while the father accuses the mother of 

coaching her daughter to fabricate these allegations. After a trial that was delayed 

numerous times by the mother’s revolving door of attorneys, the trial court awarded sole 

physical and legal custody to the father. The court found that the animosity between the 

parents was such that any form of coparenting was impossible, and that the father was the 

“more capable” parent. The mother appeals.

We affirm. The trial court’s judgment was supported by substantial 

evidence, and awarding sole legal and physical custody to the father was in the 

daughter’s best interests. None of evidentiary rulings or factual findings the mother 

challenges was made in error, and even if they had been, the mother has not established 

any prejudice.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

A.S. (the minor) was born in October 2004. The minor’s parents, M.S. 

(father) and R.D. (mother), were never married. In May 2005, father filed a petition to 

establish paternity, and to request joint legal and physical custody of the minor. In 

response, mother requested sole legal and physical custody of the minor, with father to 
3

have monitored visitation. After a hearing in July 2005, the trial court temporarily 

awarded mother and father joint legal custody of the minor, and awarded sole physical 

custody of the minor to mother, with father having visitation rights. The court appointed 

a child custody evaluator, pursuant to Evidence Code section 730. After that hearing, 

however, mother and father worked out their custody issues without court intervention.

Beginning in October 2010, however, mother and father’s disagreements 

over custody of the minor moved back into the court arena. Over the course of the next 

two and one-half years, multiple reports of sexual abuse of the minor by father were 

made to the Orange County Social Services Agency (SSA) by mother and by mandated

reporters. Many of the reports were made immediately before a court hearing. All of the 

abuse allegations were ultimately determined by SSA, the Child Abuse Services Team 

(CAST), the district attorney, or the police department to be inconclusive or unfounded.

In March 2011, the trial court appointed Dr. David J. Sheffner to conduct a 

custody evaluation pursuant to Evidence Code section 730. In August 2011, Dr. Sheffner 

submitted his 84-page report to the court, in which he recommended that mother have 

primary physical custody of the minor during the school year, with father having primary 

physical custody during the summer. Dr. Sheffner noted, “when it comes to accusations 

of sexual misconduct by [father] . . . , and accusations of false claims and coaching of 

[the minor] in this area by [mother], I do not believe the data indicates any such 

molestation/false claims of molestation have taken place.” 

While acknowledging he had not reviewed any of SSA’s reports, 

Dr. Sheffner stated that the reports were unlikely to change his opinion. He also 

recommended that the minor be provided psychotherapy, which should be insulated from 

the legal system and from mother and father’s ongoing conflict. Specifically,

Dr. Sheffner recommended that the minor be treated by Dr. Elaine Clough, Ph.D. Father 

objected to the minor’s therapy with Dr. Clough because mother was allegedly 

interrogating the minor about her therapy sessions and coaching the minor about what to 
4

say to the therapist. After Dr. Sheffner filed his report, mother continued to visit him, 

with and without the minor.

Mother took the minor to see Dr. Myron R. Kanofsky, mother’s 

gynecologist, in January 2012. Dr. Kanofsky, a mandated reporter, reported possible 

sexual abuse to SSA, the district attorney, the Tustin Police Department, the child abuse

registry, and CAST.

The trial court conducted a pendente lite custody hearing in February 2012. 

After the hearing, the court found “insufficient evidence to substantiate” any claims of 

child abuse or child molestation. The court based this finding on (1) two CAST 

interviews that concluded the abuse allegations were unfounded, (2) 11 allegations of 

abuse that SSA had concluded were unsubstantiated, and (3) Dr. Sheffner’s statement that 

the minor had denied any abuse. Finding it to be in the minor’s best interests, the court 

awarded primary physical custody to father, and joint legal custody to mother and father. 

The court also ordered that the minor be immediately placed in therapy, and that neither 

mother nor father discuss allegations of molestation with the therapist.

In March 2012, the court appointed counsel for the minor. The minor’s 

counsel supported father’s request for a temporary restraining order monitoring all of 

mother’s contacts with the minor and appointing a new visitation monitor. (The previous 

court-ordered monitor withdrew due to mother’s harassing, threatening behavior.) The 

court granted father’s request.

Trial on the issue of custody began in September 2012, and continued 

sporadically through February 2013. At the outset of trial, mother agreed, through 

counsel, that (1) the minor had fabricated the allegations of sexual abuse by father, 

(2) father had not inappropriately touched the minor, and (3) all reports of abuse were 

unfounded. The issues remaining for the custody trial were whether the reports of abuse 

were made reasonably or maliciously, and whether mother had coached the minor.
5

Mother testified at the trial that she did not believe father had touched the minor in an 

inappropriate way, and that the minor was not credible on that point.

Dr. Sheffner testified, consistent with his Evidence Code section 730 report 

to the court, that mother should have primary physical custody of the minor. He testified 

that the minor was an unreliable historian with regard to claims of abuse by father, and 

her statements to Dr. Sheffner regarding the alleged abuse were inconsistent. 

Dr. Sheffner further testified that there were three possible reasons for the minor’s reports 

of abuse: (1) the abuse in fact occurred; (2) the minor was coached into making the 

reports; or (3) the minor was motivated by an “interpsychic mechanism” caused by the 

“disturbing complex conflictual family dynamics.” He opined that if mother had been 

coaching the minor, their future contact should be monitored to protect the minor “from 

that nefarious influence,” and that mother should be subject to judicial or therapeutic 

intervention, depending on whether the coaching was the result of maliciousness or an 

emotional or mental problem.

During trial, mother’s counsel withdrew. Representing herself in propria 

persona, mother asked to withdraw her stipulation that no sexual abuse had occurred, on 

the grounds that new evidence of possible abuse had become available, and there was an 

active criminal investigation relating to the allegations. The trial court advised mother 

that if she withdrew her stipulation, all the SSA reports would be admitted into evidence 

for all purposes. (The court had previously admitted the SSA reports for the limited 

purpose of assessing mother’s statements contained therein.)

Another sexual abuse report was made to SSA two days before a scheduled 

status conference in November 2012, and the minor was taken into protective custody. A 

CAST interviewer determined the minor was not credible. SSA deemed the new 

allegations of abuse to be unfounded, and determined no intervention or services by SSA 

were necessary.
6

On the day of the status conference, the visitation monitor recused her 

agency from further supervision of visits due to “constant turmoil” caused by mother 

threatening to sue the monitor or have the monitor arrested, and recording the visits 

without the monitor’s knowledge. The monitor felt it was too dangerous to continue 

monitoring visits because of mother.

At the status conference, the court suspended mother’s contact with the

minor pending further notice. At a further status conference, new counsel appeared for 

mother, a new visitation monitor was appointed, and mother’s parenting time was 

reinstated.

When trial resumed in February 2013, mother repudiated her earlier 

stipulation denying father’s alleged sexual abuse of the minor. Mother’s counsel set forth 

her position as follows: “She alleges that . . . the child . . . made statements to her 

regarding sexual abuse by the father and that she reported the statements that [the minor] 

made.” The trial court deemed the earlier stipulation to be null and void, and admitted all 

the SSA reports and other documents regarding the abuse investigations for all purposes. 

During trial, mother’s new counsel substituted out, and mother was again in propria 

persona.

Without objection, the trial court called Robert Munoz, a senior social 

worker for SSA, as an expert witness in the area of child custody investigations and child 

custody evaluations. Munoz testified he had reviewed the entire case file, which included

four CAST interviews, the minor’s removal from the home and placement in protective 

custody on two occasions, and 16 investigations into sexual abuse allegations between 

November 2010 and November 2012. Of the abuse reports, seven were determined to be 

unfounded, two were deemed inconclusive, and none was substantiated. Munoz testified 

there was no evidence conclusively showing mother had coached or influenced the minor 

to make the allegations, although it was his personal opinion that mother had coached the 
7

minor. Munoz thought it was possible that the minor continued to verbalize abuse 

allegations in order to obtain more time with mother.

After trial, the court issued a tentative statement of decision, to which both 

mother and father filed objections. In June 2013, the court issued a final statement of 

decision, awarding father sole physical and legal custody of the minor. Judgment was 

entered in July 2013. 

The following day, the minor’s counsel moved to be relieved as counsel: 

“I believe I have reached the end of my usefulness as attorney for the minor in this 

matter. I am unable to obtain the cooperation of the child’s parents. The only thing the 

parents agree on is that they want me off the case. Further, I do not believe that anyone 

should have to accept the amount of abuse that I receive on a daily basis from the 

mother . . . .” The trial court relieved counsel, and appointed a new attorney as the 

minor’s counsel. Mother’s motion for a new trial and her request for a change in custody 

were denied. 

Mother filed a timely notice of appeal from the judgment. Father has not 

participated in this appeal; mother’s arguments have been challenged by the minor.

DISCUSSION

I.

THE TRIAL COURT DID NOT ERR IN CONCLUDING AN AWARD OF SOLE PHYSICAL AND LEGAL 

CUSTODY TO FATHER WAS IN THE MINOR’S BEST INTERESTS.

The judgment from which mother appeals is a custody order. As such, we 

review the court’s decision for abuse of discretion. (In re Marriage of Burgess (1996) 13 

Cal.4th 25, 32.) We may conclude the trial court abused its discretion only if “there is no 

reasonable basis on which the [trial] court could conclude its decision advanced the best 

interests of the child.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) We review the trial 

court’s findings underlying its judgment for substantial evidence. “In an initial custody
8

determination, the trial court has ‘the widest discretion to choose a parenting plan that is

in the best interest of the child.’ [Citation.] It must look to all the circumstances bearing

on the best interest of the minor child.” (In re Marriage of Burgess, supra, at pp. 31-32.) 

We do not reweigh conflicting evidence or determine whether we would have made the

same findings as the trial court: “‘Our function has been fully performed when we find in

the record substantial evidence which supports the essential findings of the trial court.’” 

(In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513.)

The trial court’s award of custody is ultimately determined by considering

the best interest of the child. (Fam. Code, § 3011.) The court may consider any relevant

factors in making that determination (In re Marriage of Burgess, supra, 13 Cal.4th at

pp. 31-32), but it must consider the health, safety, and welfare of the child, as well as any

history of abuse (Fam. Code, § 3011, subds. (a), (b)). Regarding consideration of the 

history of abuse, the statute provides as follows: “As a prerequisite to considering 

allegations of abuse, the court may require substantial independent corroboration, 

including, but not limited to, written reports by law enforcement agencies, child 

protective services or other social welfare agencies, courts, medical facilities, or other 

public agencies or private nonprofit organizations providing services to victims of sexual 

assault or domestic violence.” (Fam. Code, § 3011, subd. (b).) 

In its statement of decision, the trial court made the following findings with 

respect to the minor’s best interests:1 

“1. Historically, [the minor] is well-bonded to both parents and thrived 

under their separate care and nurturing until at least April 2011 and likely through the end 

of 2011 until the parents engaged in open warfare.

 

1

 We quote the trial court’s statement of decision at length because it 

explains the court’s analysis and demonstrates the care the court took in reaching its 

decision.
9

“a. [The minor] craves each parent’s love, attention and time and under a 

hypothetical that today both parents are judged . . . adequate custodial parents, then the 

court would easily award joint custody under F[amily ]C[ode] § 3002 and apportion 

parenting time, affording each parent frequent and continuous contact with each parent.

“i. Under the hypothetical two adequate parents with co-parent ability, and 

all the circumstances the same, the court would have granted joint custody [and] ordered 

the mother to serve as the primary parent during school time with the father having 

parenting time alternating Thursdays to Mondays; during the summer, the court would 

have ordered the reverse parenting schedule, the father serving as the primary parent.

“2. HOWEVER, during the past several years plus, the parents waged a 

relentless battle, each parent seeking to limit the other parent’s influence over [the minor] 

and each parent seeking to disestablish the other parent. The chaos churned up by the 

parental feud filled [the minor]’s life with chaos.

“3. There is no doubt—none—these two parents have no ability to 

co-parent. The parents are locked into an orbit of hate and retribution, not remediable by 

any tool, speech or lecture from this judge. The parents are so highly conflicted that no 

parenting schedule or set of rules and regulations will adequately address and solve their 

on-going conflict and power struggle over [the minor], nor can this judge construct any 

sort of plan that might enable co-parenting. The pattern of hostility is likely to continue 

no matter what this court might order or establish.

“a. Joint custody is ruled out. The best this court can do is consolidate 

parent decision-making to a single parent—the more capable parent ([father]), and 

establish a super structured parenting schedule, announce clear judicial warnings . . . , 

and enforce court orders . . . .

“b. Findings:

“i. The amount of parental strife and enmity between the parents disables 

any ability to cooperate or act collaboratively.
10

“1. In a hypothetical moment when time-sensitive parental decision 

making is at hand or urgently needed (e.g. medical decision—such as authorizing or 

withholding medical consent or, in an educational setting, teachers and special education 

advisors need or require consent for [individualized education program] services), the 

current amount of extreme parental conflict will frustrate, stifle or prevent any necessary 

parental consultation and[/]or communication and the parental conflict will disrupt the 

administration of necessary professional services of whatever sort [whenever] offered or 

needed.

“2. In a hypothetical non-emergency setting, where the parents may 

be called upon to make recurring or routine decisions regarding issues affecting [the 

minor]’s [health, welfare, and safety], the mis-trust and parental enmity will delay, 

frustrate or implode the decisional process, causing [the minor] to miss-out on services, 

activities or miss opportunities. (e.g. extracurricular activities, selection of schools, 

discretionary educational or medical decision-making including deciding between 

medical treatment options or weighing and choosing between competing [individualized 

education program] services.)

“3. In a hypothetical setting, any joint custody award will subject 

[the minor] to risk of hostile parental exchanges, conflicting parental decisions, 

conflicting parent-directed (child) activities, exposing [the minor] to high drama, parental 

anger and hostility, parental strife, and all this will doubtlessly (negatively) affect [the 

minor] emotionally, psychologically and maybe even physically.

“4. Finally, any joint legal custody arrangement will incite and 

perpetuate hostile disagreements between the parents leaving the parents fewer emotional 

resources to benefit and assist [the minor], and otherwise expose [the minor] to adult 

drama, hostile exchanges and leaving [the minor] fearful.

“4. Granting sole custody to the more capable parent serves the best 

interests of [the minor], and will, in any hypothetical setting (emergency or otherwise) 
11

ease and facilitate and enable time sensitive decision-making, avoid confusion and avoid 

risk of parental conflict negatively affecting [the minor].

“a. An award of sole custody to one parent reduces the risk [the minor] will 

be exposed to counterproductive parenting behavior, adult anger and hostility.

“5. Awarding sole custody to [father] is in the best interest of the child:

“a. When comparing the parents, only [father is] currently qualified to 

serve in the role of custodial parent.

“i. [Father] is characterized as an adequate parent.

“1. The child is well-bonded to [father] and [father] is capable of 

providing [the minor] with a stable and nurturing home environment, and provides all 

[health, welfare, and safety] and emotional needs.

“2. The child is safe while under [father]’s custodial care.

“a. The father has never physically abused his daughter and the mother’s 

allegations to the contrary are not supported by any evidence. The child’s claims of past 

abuse are false. [¶] . . . [¶]

“6. [Mother] is not qualified to serve in the role of custodial parent[.] 

[¶] . . . [¶]

“7. If allowed to serve as custodial parent, it is more likely than not 

[mother] will impede, block, frustrate and dis-able the father’s frequent and continuous 

contact with his child.

“a. If left un-checked, it is more likely than not the mother will condition 

the child to make additional false reports and[/]or to teach the child not to trust the father.

“b. If left un-checked, the mother will attempt to align the child in her 

favor and against the father.

“8. [Mother]’s current life and circumstances are in chaos, not suitable for 

the child and the child should not be exposed to more chaos. [¶] . . . [¶]
12

“9. The court has a substantial concern regarding [mother]’s emotional[] 

state and stability, characterized as fragile and unstable.”

The trial court’s findings are supported by substantial evidence. 

Dr. Sheffner’s report and testimony, and the number of reports of sexual abuse made by 

the minor, none of which was substantiated, provided ample support for the court’s 

findings regarding the minor’s mental and emotional issues. The testimony of mother 

and father, as well as the court’s familiarity with the contentiousness of the litigation 

between them, amply supported the findings regarding their inability to coparent, the 

need to give sole custody to one parent, and mother’s inability to provide a stable home 

life for the minor. The trial court did not abuse its discretion in concluding that awarding 

sole legal and physical custody to father was in the minor’s best interest.

II.

THE TRIAL COURT DID NOT ERR IN EXCLUDING THE TESTIMONY OF TWO MANDATED 

REPORTERS REGARDING ALLEGATIONS OF SEXUAL ABUSE.

Mother argues that the trial court erred by excluding the testimony of 

Dr. Thea Reinhart, the minor’s court-appointed psychologist, and Dr. Kanofsky, the

gynecologist who examined the minor. We review a trial court’s ruling concerning the 

admissibility of evidence for abuse of discretion. (Gordon v. Nissan Motor Co., Ltd.

(2009) 170 Cal.App.4th 1103, 1111.) 

The minor initially argues that the trial court could not have abused its 

discretion in excluding the testimony of these witnesses because alleged sexual abuse was 

not an issue at trial. (See Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 [party 

cannot adopt a new theory of the case on appeal; to do so would be unfair to the trial 

court and manifestly unfair to the opposing party]; North Coast Business Park v. Nielsen 

Construction Co. (1993) 17 Cal.App.4th 22, 29 [same].) At the beginning of trial, mother 

stipulated that father had not sexually abused or inappropriately touched the minor, and 
13

testified she did not believe father had inappropriately touched the minor. As the trial 

continued, however, mother withdrew from that stipulation, and testified she did not 

know whether father had sexually abused the minor. Because the issue of possible sexual 

abuse was raised by mother during trial, it is appropriate for us to consider on appeal the 

claimed exclusion of the testimony of Drs. Reinhart and Kanofsky on that issue.

A. Dr. Reinhart

The minor argues mother has failed to establish that she attempted to call 

Dr. Reinhart as a witness. While mother’s subpoena to Dr. Reinhart is not in the 

appellate record, we find significant support in the record for mother’s contention that she 

properly sought Dr. Reinhart’s testimony at trial, but that the minor’s counsel’s assertion 

of the psychotherapist-patient privilege, as well as the parties’ pretrial agreements and 

understandings regarding Dr. Reinhart’s role in the proceedings, barred her testimony. 

The minor’s counsel repeatedly asserted the psychotherapist-patient 

privilege in the trial court. Mother argues on appeal that there was no privilege to assert, 

citing Evidence Code section 1027, which reads: “There is no [psychotherapist-patient] 

privilege . . . if all of the following circumstances exist: [¶] (a) The patient is a child 

under the age of 16. [¶] (b) The psychotherapist has reasonable cause to believe that the 

patient has been the victim of a crime and that disclosure of the communication is in the 

best interest of the child.” Mother fails to establish that she ever raised the applicability

of section 1027 in the trial court, thereby forfeiting the issue on appeal.

In pleadings filed after the trial, mother raised the issue of Evidence Code 

section 1027. Mother’s posttrial filings requested that the court explain in its statement 

of decision “[w]hat factual or legal basis the Court had for allowing [the minor’s counsel] 

to assert the privilege on behalf of the minor child . . . and not allow Dr. [Reinhart], the 

child’s court appointed therapist to testify when it was apparent and could be inferred that 

Dr. [Reinhart] was the mandatory reporter who reported and subsequently the Tustin 

Police Department took [the minor] into protective custody on November 7, 201[2]. 
14

Evidence Code 1027 is applicable and there is no privilege.” If this was the alleged 

purpose for seeking Dr. Reinhart’s testimony, the testimony was irrelevant. There was 

ample testimony at trial that the November 2012 abuse report, no matter who made it, 

was fully investigated and determined to be unfounded, and the CAST interviewer found 

the minor not to be credible with respect to that report.

Evidence Code section 1027 is inapplicable for another reason. In 

connection with a separate, later legal proceeding regarding a guardianship of the minor, 

Dr. Reinhart submitted a declaration in which she stated, “I do believe that my 

communications with [the minor] fall under Evidence Code section 1027, and I do 

believe she has been a victim of a crime, and that it is in her best interests for me to 

testify pursuant to the subpoena.” However, there is nothing in the appellate record that 

establishes Dr. Reinhart had any belief that section 1027 applied at the time she might 

have testified at the child custody trial.

2

 

The minor’s argument is well taken that the purpose of appointing 

Dr. Reinhart as the minor’s therapist in the first place was to provide her with an 

opportunity to obtain therapy insulated from the litigation between her parents. 

Dr. Sheffner recommended in his report that “neither parent attempt in any manner to 

interfere with, obstruct, or sabotage such treatment” or the confidentiality of the 

 

2

 Mother’s opening appellate brief asserts father conceded that 

Dr. Reinhart believed father had molested the minor as of the time of trial. Mother’s 

citation is to father’s declaration in support of a request to remove Dr. Reinhart as the 

minor’s therapist. Father’s declaration reads, in relevant part, as follows: “The trial is 

over. Clearly Dr. Reinhart does NOT agree with the ruling and instead believes that I 

molested [the minor], hence, she reported me to SSA in November 2012 per [mother]’s 

sworn statements to this Court.” We disagree that father’s declaration concedes what 

Dr. Reinhart believed at the time of trial, but rather summarizes what mother says 

Dr. Reinhart believed at the time of trial. Father’s declaration also notes that Dr. Reinhart 

had “secret therapy appointments” with the minor during the minor’s visitation with 

mother, during a period in which Dr. Reinhart was not in communication with the 

minor’s counsel.
15

treatment. Dr. Sheffner testified at trial that the minor needed “regular intensive therapy 

with a skilled experienced psychologist; that is . . . insulated from the legal system and 

her parent’s conflict.” Mother agreed with Dr. Sheffner’s recommendations. In February 

2012, the court ordered that the minor be placed in therapy, and that neither mother nor 

father could “discuss allegations of molest[ation] with the therapist.” 

The trial court did not abuse its discretion in excluding Dr. Reinhart from 

testifying at the child custody trial.

B. Dr. Kanofsky

The minor argues that mother cannot challenge the trial court’s exclusion of 

Dr. Kanofsky’s testimony because mother did not call Dr. Kanofsky to testify at trial. 

Dr. Kanofsky was not listed on mother’s witness list. Mother claims that calling 

Dr. Kanofsky at the child custody trial would have been a futile act because at the 

temporary custody hearing in February 2012, a different judicial officer ordered mother’s 

counsel not to ask Dr. Kanofsky “any questions relating to medical treatment of this 

child.” We need not consider whether mother can use the futility rule to escape her 

failure to call Dr. Kanofsky to testify at trial because her substantive arguments regarding 

the alleged exclusion of his testimony fail.

First, mother argues that the trial court erred because the minor’s 

physician-patient privilege could be waived by either mother or father since, at that time,

they shared joint custody of the minor. Mother cites Family Code section 3083, which 

provides: “In making an order of joint legal custody, the court shall specify the 

circumstances under which the consent of both parents is required to be obtained in order 

to exercise legal control of the child and the consequences of the failure to obtain mutual 

consent. In all other circumstances, either parent acting alone may exercise legal control 

of the child. An order of joint legal custody shall not be construed to permit an action 

that is inconsistent with the physical custody order unless the action is expressly 

authorized by the court.” Under section 3083, one parent’s consent is generally sufficient 
16

to waive a child’s privilege. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th

737, 744.) But mother did not raise Family Code section 3083 in the trial court.

Second, mother argues that Penal Code section 11171.2, subdivision (b) 

made the testimony of Dr. Kanofsky and Dr. Reinhart nonprivileged. Section 11171.2, 

subdivision (b) provides: “Neither the physician-patient privilege nor the 

psychotherapist-patient privilege applies to information reported pursuant to this article in 

any court proceeding or administrative hearing.” Mother never raised section 11171.2, 

subdivision (b) at the hearing for temporary custody, or at the child custody trial. That 

statute is referenced in a letter from Dr. Kanofsky, which was attached to a request by 

mother to the supervising judge of the family law panel, requesting that Commissioner 

Renee Wilson be removed from the case. 

The trial court did not err in “excluding” Dr. Kanofsky’s testimony.

C. Prejudice

The trial court did not abuse its discretion in excluding the testimony of 

Dr. Reinhart or Dr. Kanofsky. Even if the exclusion of their testimony was in error, no 

prejudice can be shown. Both Dr. Kanofsky and Dr. Reinhart are mandated reporters of 

child abuse, and the appellate record reflects that both did make reports of alleged sexual 

abuse of the minor. Those reports, as well as the investigations arising out of them and 

the conclusions drawn from them, are included in the SSA reports admitted in evidence. 

Mother fails to explain how having these reporters testify about what they reported would 

have impacted the trial court’s judgment.

III.

DID THE TRIAL COURT APPLY AN INCORRECT LEGAL STANDARD REGARDING COACHING?

The trial court found by a preponderance of the evidence that mother 

coached the minor to allege father had sexually abused her. Mother argues that the trial 

court erred and should have considered whether there was substantial evidence of 
17

coaching, which mother asserts is a higher burden of proof, citing Family Code 

section 3027.5. That statute provides, in relevant part: “The court may order supervised 

visitation or limit a parent’s custody or visitation if the court finds substantial evidence

that the parent, with the intent to interfere with the other parent’s lawful contact with the 

child, made a report of child sexual abuse, during a child custody proceeding or at any 

other time, that he or she knew was false at the time it was made.” (Fam. Code, § 3027.5, 

subd. (b), italics added.) 

When no other burden of proof is specified, preponderance of the evidence 

is used. “Except as otherwise provided by law, the burden of proof requires proof by a 

preponderance of the evidence.” (Evid. Code, § 115.) We conclude the use of the phrase 

“substantial evidence” in Family Code section 3027.5, subdivision (b) was not intended 

by the Legislature to apply to anything other than the preponderance of the evidence

burden of proof.

The Legislature has never before used the phrase “substantial evidence” as 

a distinct, heightened burden of proof. Rather, the phrase is used when a preliminary 

finding must be made before proof by a preponderance of the evidence may be required,

3

or when a court is charged with reviewing an agency’s decision. Even if we were to 

agree with mother that the Legislature intended to apply a different standard of proof, we 

 

3

 For example, Welfare and Institutions Code section 709, which addresses 

determination of a minor’s competency during juvenile proceedings, references 

substantial evidence as a lesser burden of proof than preponderance of the evidence: 

“During the pendency of any juvenile proceeding, the minor’s counsel or the court may 

express a doubt as to the minor’s competency. . . . If the court finds substantial evidence

raises a doubt as to the minor’s competency, the proceedings shall be suspended. [¶] . . . 

Upon suspension of proceedings, the court shall order that the question of the minor’s 

competence be determined at a hearing. . . . [¶] . . . If the minor is found to be 

incompetent by a preponderance of the evidence, all proceedings shall remain suspended 

. . . .” (Welf. & Inst. Code, § 709, subds. (a), (b), (c).)
18

would conclude that standard was the same as, or lower than, the preponderance of the 

evidence standard. 4

The legislative history of Family Code section 3027.5 does not support an 

inference that the Legislature intended to create a new, heightened burden of proof by 

using the phrase “substantial evidence.”5 The purpose behind the enactment of the statute 

was to address the discredited, junk-science theory known as parental alienation 

syndrome, which posited that almost all allegations of child sexual abuse are false. 

(Assem. Com. on Judiciary, Analysis of Sen. Bill No. 792 (1999-2000 Reg. Sess.) as 

amended July 12, 1999, p. 4.) Section 3027.5 was intended to “curtail[] judicial 

discretion to limit a parent’s custody or visitation when an allegation of sexual abuse is 

made against the other parent,” and to “prohibit[] any limitation on a parent’s custody or 

visitation for the sole reason that the parent lawfully reported or investigated allegations 

of child sexual abuse.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 792, supra,

as amended July 12, 1999, p. 4.) Mother fails to explain why a heightened standard of 

proof would be required to curtail judicial discretion in this way.

IV.

SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING THAT MOTHER COACHED THE MINOR.

The trial court’s statement of decision includes the following findings 

regarding mother’s coaching of the minor as to allegations of sexual abuse:

“5. . . . [¶] . . . [¶] a. The father has never physically abused his daughter 

and the mother’s allegations to the contrary are not supported by any evidence. The 

child’s claims of past abuse are false. [¶] . . . [¶]

 

4

 Preponderance of the evidence is defined as “more likely to be true than 

not true.” (CACI No. 200.) Substantial evidence is evidence, “contradicted or 

uncontradicted, which will support the determination.” (Bowers v. Bernards (1984) 150 

Cal.App.3d 870, 874.) 

5

 Mother cited to Family Code section 3027.5’s legislative history in her 

opening appellate brief, but did not request that this court take judicial notice of it. The 

minor did not object to our consideration of the statute’s legislative history. 
19

“c. On the basis of Dr. Sheffner’s opinions and the many CPS negative 

findings and reports received into evidence, the court characterizes [the minor]’s claims 

of abuse . . . false. Multiple child custody evaluators have examined the allegations and 

they all agree that [the minor] is not a credible reporter regarding any abuse.

“d. The court finds by a preponderance of evidence that [the minor] was 

manipulated and coached by her mother into verbalizing phony accounts of abuse. [¶] 

i. There is no credible evidence or inference to . . . support a contrary finding. [¶] ii. It is

more likely than not the mother . . . influenced, coach[ed] and encouraged [the minor] to 

make false reports, doing so to gain an unwarranted advantage during the custody 

proceedings.

“6. . . . [¶] a. [Mother] undertook a relentless campaign to destroy

[father]’s father-daughter relationship and parenting time with [the minor], by coaching 

the child into verbalizing phony sexual abuse stories and then, orchestrating a disclosure 

opportunity to mandatory reporter[s], triggering serial child abuse reports, CPS 

investigations and CAST interviews, all negative for any abuse. Along the way, [mother] 

schemed to plausibly deny responsibility for [the minor]’s reporting. [Mother] set up her 

child to falsely report abuse. [¶] i. [Mother]’s scheme triggered 16 reports of abuse, 

seven separate investigations, four CAST interviews and two times [the minor] was 

removed from the father’s custody and temporarily placed in Orangewood until child 

protection investigators could investigate. [¶] ii. After each and every investigation, 

child abuse experts concluded [the minor] was not a credible reporter, the reports of 

abuse were false, and along the way, police and child custody invest[igat]ors concluded 

that [mother] provided false or materially mis-leading information.

“b. Whenever [mother] denied coaching the child, [mother] was not 

credible.

“c. Whenever [mother] claimed she acted in good faith upon the child 

verbalizing abuse claims, [mother] was not credible.
20

“d. While Dr. Sheffner did not find sufficient data or evidence to support 

any finding the mother coached the child, his data collection ended mid-2011. At the 

time, little coaching had taken place.

“e. During the trial, the court received a lot more information, not available 

to Dr. Sheffner. Based on the conclusions of the many CPS investigations and social 

workers searching for any abuse, and the testimony from Detective Breeze that was 

incorporated into the trial record without objection, the overwhelming conclusion is this: 

[Mother] coached her child into making false reports of abuse.” (Fourth ellipses in 

original, fn. omitted.)

The court’s findings were supported by substantial evidence. SSA, the 

police, and the CAST interviewers all concluded the minor’s reports were 

unsubstantiated, and/or that the minor was not credible. Many of the reports were made 

immediately before key hearings or transfers of custody. Mother’s behavior toward 

others, including, but not limited to, visitation monitors and school personnel, was 

supportive of an inference that mother would do or say anything necessary to further her 

own position.

On appeal, mother argues there was substantial evidence that could support 

a contrary finding. The existence of such evidence does not negate the existence of the 

substantial evidence supporting the trial court’s findings. “We emphasize that the test 

is not the presence or absence of a substantial conflict in the evidence. Rather, it is 

simply whether there is substantial evidence in favor of the respondent. If this 

‘substantial’ evidence is present, no matter how slight it may appear in comparison with 

the contradictory evidence, the judgment must be upheld. As a general rule, therefore, 

we will look only at the evidence and reasonable inferences supporting the successful 

party, and disregard the contrary showing. [Citations.] In short, even if the judgment of 

the trial court is against the weight of the evidence, we are bound to uphold it so long as 

the record is free from prejudicial error and the judgment is supported by evidence which 
21

is ‘substantial,’ that is, of ‘“ponderable legal significance,”’ ‘“reasonable in nature, 

credible, and of solid value . . . .”’ [Citations.]” (Howard v. Owens Corning (1999) 72 

Cal.App.4th 621, 631.) 

Mother argues the trial court improperly qualified Munoz as an expert 

witness, and erred by relying on Munoz’s testimony to support the court’s finding that 

mother coached the minor to make the reports of sexual abuse. Mother also argues the 

trial court erred by qualifying Munoz as “an expert in the area of child custody 

investigations and as a child custody evaluator.” Mother did not object to Munoz’s 

qualifications or testimony as an expert; she has forfeited any such argument on appeal. 

(People v. Panah (2005) 35 Cal.4th 395, 478; In re Joy M. (2002) 99 Cal.App.4th 11, 

19.) 

Mother argues that Munoz should not have been qualified as a child 

custody evaluator because he did not meet the criteria set forth in Family Code 

section 3110.5 and California Rules of Court, rule 5.225. But Munoz was not appointed 

by the court to conduct a child custody evaluation, but rather to opine on and summarize 

the reports and investigations performed by others. We find no error under Family Code 

section 3110.5 or California Rules of Court, rule 5.225. Munoz’s testimony was 

unnecessary to support the court’s findings. Therefore, even if the trial court erred by 

considering Munoz’s testimony, there was no prejudice.

V.

THE TRIAL COURT DID NOT ERR BY FAILING TO ALLOW DR. SHEFFNER TO 

INVESTIGATE THE CHILD SEXUAL ABUSE REPORTS, OR BY DISCOUNTING

HIS EXPERT OPINION.

Mother argues the trial court erred by failing to allow Dr. Sheffner to 

investigate the reports of child sexual abuse, and by failing to give enough weight to

Dr. Sheffner’s opinion.
22

Dr. Sheffner was appointed as a court expert pursuant to Evidence Code 

section 730,6not Family Code sections 3111 or 3118,

7

despite the fact that allegations of 

sexual abuse had already been raised in the case at the time of the appointment. At no 

later time did mother, father, or the minor ask that the statutory authority for 

Dr. Sheffner’s evaluation be expanded. 

Dr. Sheffner was permitted to review the relevant SSA and police reports 

made before he filed his report with the court. Because Dr. Sheffner’s assignment was 

completed at that point, there was no error in the court’s apparent failure to provide 

additional reports to him. The trial court specifically denied a request that Dr. Sheffner 

be ordered to supplement his report and recommendations.

Mother impliedly contends that Dr. Sheffner’s role should have been 

shifted to that of a child custody evaluator under Family Code section 3118 because there 

were serious allegations of child sexual abuse in the case. At the time Dr. Sheffner 

testified, however, mother had stipulated that no sexual abuse had occurred and had 

testified she did not believe father had acted inappropriately. Only after Dr. Sheffner’s 

testimony was completed did mother withdraw from her stipulation. And, as noted ante, 

all allegations of sexual abuse were thoroughly investigated by SSA, CAST members, 

and the police department, and were all concluded to be unfounded or unsubstantiated.

 

6

 “When it appears to the court, at any time before or during the trial of an 

action, that expert evidence is or may be required by the court or by any party to the 

action, the court on its own motion or on motion of any party may appoint one or more 

experts to investigate, to render a report as may be ordered by the court, and to testify as 

an expert at the trial of the action relative to the fact or matter as to which the expert 

evidence is or may be required.” (Evid. Code, § 730.)

7

 The Judicial Council of California form for the order appointing 

Dr. Sheffner as a child custody evaluator allowed the court to indicate the order was 

made “under the statutory authority of” Family Code section 3111, Family Code 

section 3118, Evidence Code section 730, or Code of Civil Procedure, chapter 15 of 

title 4 of part 4. The trial court checked only the box for Evidence Code section 730. 
23

As for mother’s contention that the trial court improperly discounted 

Dr. Sheffner’s opinion, “the trier of fact is exclusive judge of the weight to be given to 

expert testimony.” (Ventura County Flood Control Dist. v. Security First Nat. Bank

(1971) 15 Cal.App.3d 996, 1003; see City of Gilroy v. Filice (1963) 221 Cal.App.2d 259, 

268.) 

VI.

THE TRIAL COURT DID NOT ERR IN ADMITTING SSA’S REPORTS.

Mother contends that the trial court erred in admitting SSA’s reports in 

evidence. (All of the child abuse reports and information related to the investigations of 

those reports between November 2010 and August 2012 are included in trial exhibit 

No. 303. A confidential summary of those reports and investigations, prepared by 

Munoz, was admitted as trial exhibit No. 301.) The only issue we are considering on 

appeal is whether mother’s statements contained within the SSA reports were improperly 

admitted hearsay. At the time the court order admitting the evidence mother challenges 

was made, the only issue was whether mother had coached the minor to make false 

accusations of sexual abuse. Later, when mother withdrew her stipulation that father had 

not inappropriately touched the minor, the court revised its ruling and admitted the SSA 

reports for all purposes. Mother’s only objection was the same hearsay objection she had 

raised when the exhibit was admitted for a limited purpose.

Mother’s challenge on appeal is to the admission of trial exhibit No. 303. 

Mother’s argument has three parts: (1) the hearsay exception under which the court 

admitted the SSA reports was not applicable in this case; (2) mother had a constitutional 

right to question the social workers who had prepared the reports and her request to do so 

was denied; and (3) the reports did not contain any evidence of coaching. 

The trial court’s order admitting the SSA reports for a limited purpose 

reads: “The mother’s extra-judicial statements reported within [SSA] reports (trial 
24

exhibit 303) related to allegations of child abuse are relevant and not made inadmissible 

based on Hearsay. Trial exhibit 303 is admitted into evidence. [¶] Reasons: [¶] 

1. Generally, the admissibility of [SSA] reports is authorized under F[amily ]C[ode] 

§ 3011 whenever considering the [health, welfare, and safety] of any child and 

investigating any history of abuse and by inference, the false reporting of child abuse for 

the purpose of gaining an advantage in a custody proceeding. See also generally . . .

(Cindy L., (1997) 17 Cal.4th 15, 35; In re Carmen O. (1994) 28 Cal.App.4th 908, 921—

both cases commenting on the child dependency hearsay exception). [¶] a. See also 

generally the judicially created exception to dependency hearings (see Welf. & Inst. 

Code, § 281, 300).[8] [¶] i. It seems reasonable to apply the same hearsay exceptions to 

child custody or visitation proceedings in a family law proceeding. [¶] 2. In addition, the 

[SSA] reporting process seems highly reliable. For instance, the reporters and 

investigators are without bias—without any motive to falsely report facts or 

circumstances, and further, they are presumptively acting within their duties to 

investigate and report . . . they are presumptively highly skilled social workers and child 

abuse investigators, carefully trained to investigate and record and report facts and 

circumstances related to child abuse claims. The time, content/detail and circumstances 

of the mother’s statements . . . as carefully reported by [SSA] staff, provide sufficient 

indicia of reliability overcoming any concerns related to hearsay. [¶] 3. Finally, and most 

importantly, unlike the cases cited above, where the declarant is a child (or some other 

un-available declarant), here, the relevant statements come from a party; the mother is 

obviously present in court, represented by competent counsel, and able to testify to refute 

or explain any statement attributed to her within trial exhibit 303. There is no Crawford 

 

8

 “There is no reason to believe the legal basis allowing [SSA] reports 

within a dependency proceeding[] is limited to that setting, but instead, the admissibility 

is very broad, and may involve any matter related to custody, status, or welfare of a 

minor. See In re Malinda S. (1990) 51 Cal.3d 368, 378-379.”
25

[v.] Washington risk as the mother will have a meaningful opportunity to controvert her 

own statements and if she chooses, subpoena the social workers and cross-examine the 

reporters about the content of any statement attributed to the mother.” (Ellipses in 

original, some italics added, boldface & underscoring omitted.)

Family Code section 3011 provides, in relevant part: “In making a 

determination of the best interest of the child in a proceeding [to determine physical or 

legal custody or visitation in an action pursuant to the Uniform Parentage Act (Fam. 

Code, § 7600 et seq.)],[9]the court shall, among any other factors it finds relevant, 

consider all of the following: [¶] (a) The health, safety, and welfare of the child. [¶] 

(b) Any history of abuse by one parent or any other person seeking custody against any of 

the following: [¶] (1) Any child to whom he or she is related by blood or affinity or with 

whom he or she has had a caretaking relationship, no matter how temporary. [¶] (2) The 

other parent. [¶] (3) A parent, current spouse, or cohabitant, of the parent or person 

seeking custody, or a person with whom the parent or person seeking custody has a 

dating or engagement relationship. [¶] As a prerequisite to considering allegations of 

abuse, the court may require substantial independent corroboration, including, but not 

limited to, written reports by law enforcement agencies, child protective services or other 

social welfare agencies, courts, medical facilities, or other public agencies or private 

nonprofit organizations providing services to victims of sexual assault or domestic 

violence. As used in this subdivision, ‘abuse against a child’ means ‘child abuse’ as 

defined in Section 11165.6 of the Penal Code and abuse against any of the other persons 

described in paragraph (2) or (3) means ‘abuse’ as defined in Section 6203 of this code. 

[¶] (c) The nature and amount of contact with both parents, except as provided in 

Section 3046.” 

 

9

 The original petition filed by father in this case was a petition to establish 

paternity under the Uniform Parentage Act.
26

Mother’s statements within trial exhibit No. 303 were not admitted for their 

truth (i.e., to prove the sexual abuse occurred) but to establish mother coached the minor 

into making the statements, which were then determined to be unfounded or unsupported. 

Therefore, the statements, although made out of court, were not hearsay. (Evid. Code, 

§ 1200, subd. (a).) Mother’s statements would also be subject to the party admission 

exception to the hearsay rule. (Evid. Code, § 1220.) Although the trial court did not 

make its ruling based on these analyses of the hearsay rule, one of the basic principles of 

appellate review is that we consider the trial court’s result, not its reasoning. 

(Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 843.)

Mother argues the trial court prevented her from cross-examining the social 

workers who had prepared the reports contained in trial exhibit No. 303. Mother cites the 

following exchange with the trial court, which took place during mother’s in propria 

persona questioning of father:

“[Mother]: Your Honor, I have questions out of [trial exhibit No.] 303 and 

I have never read the document, I’ve only been given it for about ten minutes.

“The Court: Ma’am.

“[Mother]: So I have questions for him, but I need to look over the 

document.

“The Court: Then skip those questions. You can do so over a break. [¶] 

Ma’am, you’ve had too many attorneys to count, and you have had access [to] those 

records through your attorneys. I have no patience for any delay; I’ve made that very 

clear by my conduct today and by my tone. I maintain a lack of patience. We are going 

to move this case forward. [¶] Let me advise you so you’re not surprised. You have 

today until noon and all day tomorrow to complete this case. [¶] Are you clear on that?

“[Mother]: Your Honor—

“The Court: Are you clear on [that]?

“[Mother]: Yes, Your Honor. I object to that.
27

“The Court: Your objection is noted and overruled.

“[Mother]: Okay.

“The Court: Move on.

“[Mother]: Well, I have a question before I move on to him. [¶] You put 

[trial exhibit No.] 303 into evidence, so I have a right to question the social workers or 

other people who are making statements in 303. I don’t even know who those individuals 

are, because I’ve never been given access to 303.

“The Court: Do you have another question?

“[Mother]: Yes, I do.

“The Court: Then ask it.”

Mother is correct in asserting that she had a right to call as witnesses the 

social workers, police officers, or other investigators whose reports appear in trial exhibit 

No. 303. The court was not required to stop the trial again to allow mother to subpoena 

any such witnesses, however. The failure by mother or her previously retained counsel to 

subpoena necessary witnesses in a timely manner was not a denial of due process by the 

court. And the court did not refuse to allow mother to call any witness who was present 

and prepared to testify. Even in In re Malinda S. (1990) 51 Cal.3d 368, 383-384, cited by 

mother in support of her argument, the California Supreme Court held that the ability to 

subpoena witnesses, despite the shortened timeframes of a dependency hearing, satisfies 

a parent’s right to due process.10

 

10

 The quoted exchange between mother and the trial court occurred at the 

end of February 2013. The court had admitted trial exhibit No. 303 for a limited purpose 

in October 2012, and had also advised mother at that time that if she withdrew her 

stipulation regarding father’s lack of alleged molestation of the minor, the court would 

admit the exhibit for all purposes. In November 2012, after mother retained new counsel 

midway through trial, the trial court granted a continuance until February 2013. Nothing 

in the appellate record indicates that mother, in propria persona or through counsel, ever 

subpoenaed any social workers or others whose reports or analyses appear in trial exhibit 

No. 303.
28

Whether the reports contained in trial exhibit No. 303 provided evidence of 

coaching by mother is subsumed by our analysis, ante, of the substantial evidence 

supporting the court’s judgment.

The trial court did not err in admitting trial exhibit No. 303, and did not 

prohibit mother from subpoenaing as witnesses any authors of the reports contained 

within that exhibit.

VII.

THE PROCEEDINGS WERE NOT PREJUDICED BY AN UNDISCLOSED CONFLICT OF INTEREST.

Finally, mother argues that a previous professional relationship between 

father’s counsel and the minor’s counsel prejudiced the proceedings. In support of a 

motion to continue the trial and to recuse the minor’s counsel, mother attached an 

unauthenticated copy of a page apparently printed from a court Web site, which indicates 

that father’s counsel had represented the minor’s counsel in a traffic court matter in 

early 2011. Based solely on this single page, mother posits that the minor’s counsel was 

not independent, but rather was beholden to father’s counsel. 

Assuming that father’s counsel represented the minor’s counsel in a legal 

matter, and without deciding whether the previous professional relationship between 

father’s counsel and the minor’s counsel should have been disclosed when the minor’s 

counsel was appointed by the trial court, we conclude no prejudice occurred. Mother’s 

contention is that the minor’s counsel took various positions and made recommendations 

at trial, all of which “inured to Father’s benefit and Mother’s detriment.” Having 

reviewed the entirety of the trial court record, both before and after the minor’s counsel 

was appointed, we find no support for mother’s theory. While it is true that the minor’s 

counsel invoked the psychotherapist-patient privilege to preclude Dr. Reinhart from 

testifying at the child custody hearing, that was consistent with Dr. Sheffner’s original 

recommendation that the minor’s therapist should be insulated from the litigation. The 
29

minor’s counsel advocated for more consistent therapy, criticizing father for failing to 

ensure the minor attended all of her scheduled sessions. The minor’s counsel also 

insisted that mother and the minor continue to have visitation while father’s counsel was 

urging that all contact between them be curtailed.

Further, when the minor’s counsel asked to be relieved by the court, he 

stated that he could not get cooperation from either parent, and that both mother and 

father wanted him off the case.

We note that, contrary to mother’s contention, father’s counsel did not 

request that Harold LaFlamme be appointed as the minor’s counsel. When mother’s 

counsel requested that counsel be appointed for the minor, father’s counsel, while arguing 

against any appointment, contended that if an appointment was made, the attorney should 

be someone “like Harold LaFlamme’s office,” which could deal with the plethora of 

investigators and SSA social workers, and which would not be overwhelmed by the 

complexity and contentiousness of the case.

VIII.

MOTIONS ON APPEAL

A.

Mother’s Motion and Supplemental Motion to Receive New Evidence (Code Civ. Proc., 

§ 909), or to Take Judicial Notice (Evid. Code, § 452, subd. (h))

At trial, Munoz testified that he had received a bachelor’s degree from 

California State University, Fullerton (CSUF), and a master’s degree from the University 

of Southern California (USC). After trial, mother served subpoenas duces tecum on the 

custodians of records of USC and CSUF, seeking all records from those schools relating 

to Robert Matthew Munoz. The custodians of records from both schools submitted 

declarations attesting that no responsive documents were located.
30

Mother filed a motion and a supplemental motion to receive the 

declarations as new evidence or to take judicial notice of them. Mother argues that 

because the trial court relied heavily on Munoz’s testimony that mother coached the 

minor to make allegations of sexual abuse, and because his testimony should now be 

ignored given the question of his credentials and his veracity, the judgment should be 

reversed and sole physical and legal custody awarded to mother.

“In all cases where trial by jury is not a matter of right or where trial by 

jury has been waived, the reviewing court may make factual determinations contrary to or 

in addition to those made by the trial court. The factual determinations may be based on 

the evidence adduced before the trial court either with or without the taking of evidence 

by the reviewing court. The reviewing court may for the purpose of making the factual 

determinations or for any other purpose in the interests of justice, take additional 

evidence of or concerning facts occurring at any time prior to the decision of the appeal, 

and may give or direct the entry of any judgment or order and may make any further or 

other order as the case may require. This section shall be liberally construed to the end 

among others that, where feasible, causes may be finally disposed of by a single appeal 

and without further proceedings in the trial court except where in the interests of justice a 

new trial is required on some or all of the issues.” (Code Civ. Proc., § 909.) 

As explained ante, the trial court’s finding that awarding sole legal and 

physical custody to father would be in the minor’s best interests was based on the 

evidence that mother and father’s contentious relationship precluded any type of 

coparenting, and on the evidence that father would be a more capable parent than mother. 

Even if this court took additional evidence on appeal of the declarations of the custodians 

of records, their consideration would not allow the case to be disposed of by a single 

appeal without further proceedings, and the interests of justice do not require a new trial. 

Therefore, we do not exercise our discretion to take additional evidence on appeal.
31

In any event, the declarations of the custodians of records of USC and 

CSUF are not properly matters for judicial notice under Evidence Code section 452, 

subdivision (h). These declarations cannot be said to be “not reasonably subject to 

dispute,” nor are they “capable of immediate and accurate determination by resort to 

sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) Indeed, the 

USC custodians’ declarations provide, “it is understood that such records could exist 

under another spelling, name or classification, but that with the information furnished to 

our office, and to the best of our knowledge, no such records exist in our files.” 

Furthermore, the lack of records is not conclusive proof that Munoz did not attend those 

universities, and that his testimony was therefore untruthful. At this point, all we can say 

definitively is the two universities in question could not locate the requested documents.

We deny mother’s motion to receive new evidence or, in the alternative, to 

take judicial notice and mother’s supplemental motion to receive new evidence or, in the 

alternative, to take judicial notice.

B.

The Minor’s Motion for Sanctions

The minor has brought a motion under California Rules of Court,

rule 8.276(a)(1) for an order imposing sanctions against mother and her counsel for 

pursuing a frivolous appeal. The minor requests sanctions in the amount of $37,157.86

for attorney fees and costs incurred in preparing the minor’s appellate brief and the 

motion for sanctions. The minor also requests that mother and her counsel be ordered to 

pay sanctions to the clerk of this court to compensate the state for the cost of processing 

the appeal. Mother filed opposition to the motion for sanctions.

Code of Civil Procedure section 907 provides: “When it appears to the

reviewing court that the appeal was frivolous or taken solely for delay, it may add to the

costs on appeal such damages as may be just.” The Court of Appeal may impose
32

sanctions on a party or attorney for “[t]aking a frivolous appeal or appealing solely to

cause delay.” (Cal. Rules of Court, rule 8.276(a)(1).) Mother’s appeal was not filed

solely to cause delay. To the contrary, mother’s goal is to obtain custody of the minor, a

goal that is inconsistent with delaying the proceedings. 

An appeal is frivolous when (1) “it is prosecuted for an improper motive—

to harass the respondent or delay the effect of an adverse judgment” or (2) “it

indisputably has no merit—when any reasonable attorney would agree that the appeal is

totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637,

650.) The first standard—improper motive—is tested subjectively, while the second

standard—indisputably without merit—is tested objectively. (In re Marriage of Gong &

Kwong (2008) 163 Cal.App.4th 510, 516.)

The minor fails to point to any evidence supporting a claim that mother’s

appeal was pursued for an improper motive. There is no evidence that mother’s appeal

caused any harassment of father, who did not file an appellate brief. 

The minor identified the following as evidence that the appeal is 

objectively without merit: (1) mother argued for application of an erroneous standard of 

review, (2) mother failed to present the case in the light most favorable to father, 

(3) mother misrepresented key portions of the record, (4) mother relied on facts outside 

the record, which occurred after the judgment, and (5) none of the issues raised by 

mother’s appeal “is remotely arguable.” While these may constitute a failure to comply 

with the appellate rules, they do not rise to the level of an appeal that is completely 

without merit. Our affirmance of the judgment does not mean that mother’s appeal was 

wholly without merit.

The minor candidly admits that one of the reasons for bringing the motion 

for sanctions is to deter future counsel from representing mother should she choose to 

pursue the litigation. A request for sanctions in one case should not be for the purpose of 

preventing the other party from retaining counsel in other matters.
33

C.

The Minor’s Motion for Judicial Notice (Evid. Code, § 452, subds. (c), (d)) and/or to 

Take Additional Evidence on Appeal (Code Civ. Proc., § 909)

The minor asks this court to take judicial notice of a federal complaint filed 

by mother against father, the minor’s former counsel, the SSA social workers, the Orange 

County Superior Court, former visitation monitors, and others, alleging, inter alia, 

violation of mother’s and the minor’s due process rights. As a record of a United States 

court, this is a matter of which this court may take judicial notice. (Evid. Code, § 452, 

subd. (d)(2).) We decline to take judicial notice of this complaint, however, because 

mother’s separate pursuit of damages for alleged federal relief is not relevant to the issues 

raised on this appeal.

DISPOSITION

The judgment is affirmed. The minor to recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

RYLAARSDAM, J.