When Eric Thomas Mesi appealed the renewal of a domestic violence restraining order (DVRO) that would keep him from abusing Vanessa Battaglia, a California appellate court unanimously reaffirmed the DVRO against him. Among the reasons he appealed from Santa Clara Superior Court Judge Stuart Scott’s ruling was his allegation that the trial judge was impartial because on the day of his trial, in a different case, Scott had announced, “I’m in a bad mood today, I am ruling against everyone.”

The Sixth Circuit Court of Appeals concluded that even if Scott’s comments were proven by a transcript, which was not made or available, Mesi’s case would remain unchanged, primarily because the judge’s remarks were “directed at a different case and party.” The opinion ended by stating, “We do not condone the remarks, but they demonstrate no bias or partiality against Eric or for Vanessa.” (The court’s opinion referred to the parties as Eric M. and Vanessa B. to protect their privacy according to California’s Rules of the Court. Their full names as used in this article were taken from a July 25 article in Metropolitan News-Enterprise.)

An unpublished per curiam opinion by Acting Presiding Justice Adrienne Grover and Justices Cynthia C. Lie and Daniel H. Bromberg was issued on July 23. It began with a description of the background of Mesi’s case. The problems between the parties began when they divorced in 2019. During the divorce proceedings, Battaglia also filed for a DVRO to protect herself, her father, and her son from a different husband. She renewed her request because she feared continued abuse from the appellant.

Her new request was based on Mesi’s activities, which included defying a court order to return her personal property (which he ignored and destroyed instead), forging her signature, filing “frivolous” lawsuits against her, and stealing money from her son. Mesi disagreed with these allegations.

Grover next detailed the legal criteria for renewal of a DVRO under California Family Code, Section 6345 (a), which says that in the court’s discretion may last up to five years, subject to termination, modification, or renewal. Renewal may be ordered “without a showing of further abuse.” In addition, a trial court’s DVRO may be reviewed for abuse of discretion, which will be proven if there is “sufficient evidence” to support a ruling that reversal is not warranted. An appellate court is to “assume” the trial court’s ruling was correct, and here it was Mesi’s burden to show that the lower court erred.

Mesi tried to meet his burden. He first claimed that Battaglia’s charges lacked sufficient evidence of proof. The Sixth Circuit quickly rejected this argument, writing “…the restrained party is not permitted ‘to challenge the truth of the evidence and findings underlying the initial order.’ ”

The appellant then alleged that both he and Battaglia violated the law. He challenged Scott’s grant of the initial DVRO because he said the judge violated one section of California’s Rules of Court (CRC) and another Section of the California Family Code (CFC). First, CRC rule 10.1014 holds judges “accountable for the efficient, effective, and proper administration” of appellate courts. Second, CFC Section 271, allows courts to impose sanctions against parties or attorneys who prolong or make litigation more difficult without justification. The opinion said that neither of these rules apply to presiding judges nor the administration of an appellate court.

Mesi’s next claim called for characterizing Battaglia as a “vexatious litigant,” under California’s Code of Civil Procedure Section 391.7. Under this Section, she would be defined as someone who was involved in “at least five litigations” that were found to be adverse to the opposing party or unjustly permitted to remain unresolved for at least two years without being adjudicated.” Once again, the Sixth Circuit was not persuaded, finding that “nothing in the record supports” Mesi’s claims.

The opinion then turned to Mesi’s claims that Judge Scott was not impartial because of his comments in court on the day of his DVRO trial. Grover explained that the standard for renewal of a DVRO is “whether the protected party entertains a reasonable apprehension of future abuse.” The trial court is “ordinarily” to consider the reason for the initial DVRO, which “often will be enough in themselves to provide the necessary proof to satisfy that test.” Further evidence of acts after the first DVRO is deemed redundant.

Citing precedents, Grover pointed out that there was no court reporter present at the actual trial. Therefore, precedent requires that absent a transcript “the judgment must be conclusively presumed correct as to all evidentiary matters” because the court can assume the absence of error. And here, Battaglia’s declaration about her “fear of future abuse” provided sufficient evidence that she “…entertain a reasonable apprehension of future abuse” to justify renewal of the DVRO.

Finally, the court considered what is perhaps Mesi’s most novel argument: his charges that Scott demonstrated judicial bias. This claim also had both procedural and content-based problems. Mesi failed to object to Scott’s statements that he was “in a bad mood today, I am ruling against everyone” when the problematic statement was initially made. Also, he never asked the judge to correct his comments or to “recuse himself.”

Regarding the statement itself, Grover wrote that claims such as bias that are “grounded in the due process clause…set an exceptionally stringent standard” for reversal. She also noted that the appellate court is “not to examine whether the trial judge’s behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial.” The lack of a transcript or settled statement (a summary of court proceedings) limits appellate review to a determination of whether any error is present in the record itself.

This decision was not the first time that Judge Scott faced scrutiny for his decisions. In 2016, the Commission on Judicial Performance found that he “knowingly engaged in improper ex parte communication with a deputy district attorney about a case that was pending sentencing before him.” At a time when the behavior of the judiciary is consistently in the news, judges might want to carefully consider their comments to make sure they are ethical and morally impeccable.