Filed 2/9/21 B.J. v. S.B. CA2/4

(modification to redact names)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE COURT:*

Appellant’s motion to seal, expunge, or replace the parties’ full names with their initials is granted, and the opinion is modified as follows (replace pages 1–7):

APPEAL from an order of the Superior Court of Los Angeles County, Anne K. Richardson, Judge. Affirmed.

S.B., in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

S.B. appeals from a three-year domestic violence restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et. seq.) following a hearing.[1] He contends that (1) his ex-girlfriend, B.J., lied in her request for the restraining order, and was not credible during the hearing; (2) the trial court erred by denying his request to call their child, J.B., to testify at the hearing; and (3) the court was unconstitutionally biased against him. We conclude that S.B. has forfeited the contentions on appeal. We affirm the order.

BACKGROUND

On February 19, 2019, B.J. filed a request for a domestic violence restraining order, seeking protection for herself and her three children from S.B., who is the children’s father and B.J.’s ex-boyfriend. In two attached declarations, B.J. described various incidents of abuse preceding her request. During an argument sometime in January 2019, S.B. called B.J. “fucking stupid” and grabbed the chair she was sitting in and threw it to the ground. On February 5, 2019, S.B. jumped onto the couple’s bed and hovered over B.J., threatening to “let the devil out like you’ve never seen before.” The next day, during an argument over whether S.B. would move out of B.J.’s residence, S.B. forced a switchblade into B.J.’s hand and pulled it towards his body while stating that she “would have to kill him because it was not possible for him to find somewhere else to go.” When B.J. wrestled the knife away from S.B., he demanded it back so that he could “do it myself.” As B.J. attempted to grab her phone to call the police, S.B. pushed her down and struck her in the face with his arm.

On February 10, 2019, after moving out of B.J.’s residence, S.B. again threatened to kill himself, and left, taking their eldest child, J.B., with him against B.J.’s wishes. Two days later, S.B. arrived at B.J.’s residence with the police to get his belongings. When S.B. left, B.J. noticed that he had taken all of J.B.’s belongings. Utilizing a tracking system on the child’s phone, B.J. discovered the child was in Bakersfield near the residence of S.B.’s mother.

B.J. also alleged that between 2005 and 2019, S.B. had punched or slapped her in the face and on the arms and legs; hit her head with a remote control, cut her nose with wire cutters; pushed her over a couch; and threw her to the ground. B.J. attached a series of text messages in which S.B. threatened to commit suicide.[2]

B.J. concurrently filed a request for child custody and visitation, and requested to restrict S.B.’s travel with the children. The trial court granted a temporary restraining order protecting B.J. and the three children, granting legal and physical custody of the children to B.J., and prohibiting S.B. from traveling with the children. The court set a hearing on a permanent restraining order.

In his written response to the request for a restraining order, S.B. disputed B.J.’s allegations and argued that B.J. made up the allegations to regain custody of J.B. To show amicable communications between him and B.J., S.B. attached copies of text messages between February 10 and February 14, 2019, after he had moved out of B.J.’s residence.[3] Despite admitting to taking J.B. to Bakersfield, S.B. alleged he did so because the child had been assaulted by his mother.

On April 10, 2019, the parties agreed to modify the custody and visitation order with respect to J.B. The parties agreed that J.B. would stay in S.B.’s custody in Bakersfield pending resolution of the next hearing.

The hearing on B.J.’s request for a permanent restraining order spanned the course of several days. However, the record on appeal contains a reporter’s transcript of only one day of the hearing. In the first page of the transcript, the court noted that it had previously heard B.J.’s testimony, and was ready for S.B’s case-in-chief. The transcript includes S.B.’s testimony, B.J.’s rebuttal testimony, closing argument by counsel, and the court’s ruling.

In B.J.’s rebuttal testimony, she testified that sometime in June 2019, her employer received private text messages that she had previously sent to S.B.[4] B.J. believed S.B. sent the messages in retaliation for her testimony at the first day of the restraining order hearing. B.J. also testified that S.B. had continued threatening to commit suicide, and accessed personal notes that had been backed up to her personal email account.[5] When S.B. increased his verbal and physical abuse of B.J. around October 2018, she sought help for counseling and assistance.

In his own testimony, S.B. denied ever being verbally or physically abusive towards B.J., and denied that the various incidents that B.J. had described in her oral testimony and declarations had ever occurred.[6] S.B. believed the children might have been around to witness some of the couple’s arguments. S.B. also denied doing anything in front of B.J. to show he was going to commit suicide.

S.B. referred to a text message he had sent to B.J. wherein he stated, “You see my actions are the problem, which means you’re saying you should be able to be a shitty, hurtful person. You never have to suffer, but you’re being hurtful without being physical.” S.B. denied that his reference of “being physical” meant he physically touched or abused B.J. He also denied sharing B.J.’s text messages with her employer.

Following his testimony, S.B. requested that J.B. testify. When the court requested an offer of proof, S.B’s counsel responded that J.B. would testify that he never witnessed any physical violence between S.B. and B.J. Though the court denied S.B.’s request to have J.B. testify, the court stated that it would “assume for purposes of this hearing, that [J.B.] would testify that he never saw any physical violence between his parents.”

The court found by a preponderance of the evidence that abuse occurred within the meaning of section 6320, including infliction of bodily injury, threatening and harassing conduct, and conduct that disturbed the peace of B.J. The court found the documentary evidence corroborated “to a large degree the kind of conduct that the matter alleged,” including S.B’s repeated threats to commit suicide. The court issued a three-year restraining order, and adopted the current custody order.

DISCUSSION

To the extent we can understand the arguments, S.B. contends that this court should reject B.J.’s testimony as not credible, apparently intending to challenge the sufficiency of the evidence. S.B. also contends that the trial court infringed on his right to due process by denying his request to call J.B. as a testifying witness, and was biased against him during the hearing.

S.B. has forfeited these contentions for the failure to provide an adequate record on appeal. It is a fundamental principle of appellate procedure that we presume the trial court’s judgment is correct, and that the appellant bears the burden to demonstrate, on the basis of a sufficient record, that the trial court committed an error justifying reversal. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) “‘“A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.]” (Ibid.; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)

Here we have only a partial record of the evidence at the hearing. B.J.’s testimony in her case-in-chief and the exhibits she introduced at the hearing were not made part of the record on appeal. Without providing a sufficient record, S.B. has forfeited his contentions that the evidence is insufficient, that the trial court erred in not allowing J.B. to testify, and that the trial court exhibited bias in its conduct of the hearing.[7]

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There is no change in the judgment.

*WILLHITE, Acting P.J. COLLINS, J. CURREY, J.

Filed 1/19/21 Junious v. Butler CA2/4 (modified opinion)

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 FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Anne K. Richardson, Judge. Affirmed.

S.B., in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

S.B. appeals from a three-year domestic violence restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et. seq.) following a hearing.[8] He contends that (1) his ex-girlfriend, B.J., lied in her request for the restraining order, and was not credible during the hearing; (2) the trial court erred by denying his request to call their child, J.B., to testify at the hearing; and (3) the court was unconstitutionally biased against him. We conclude that S.B. has forfeited the contentions on appeal. We affirm the order.

BACKGROUND

On February 19, 2019, B.J. filed a request for a domestic violence restraining order, seeking protection for herself and her three children from S.B., who is the children’s father and B.J.’s ex-boyfriend. In two attached declarations, B.J. described various incidents of abuse preceding her request. During an argument sometime in January 2019, S.B. called B.J. “fucking stupid” and grabbed the chair she was sitting in and threw it to the ground. On February 5, 2019, S.B. jumped onto the couple’s bed and hovered over B.J., threatening to “let the devil out like you’ve never seen before.” The next day, during an argument over whether S.B. would move out of B.J.’s residence, S.B. forced a switchblade into B.J.’s hand and pulled it towards his body while stating that she “would have to kill him because it was not possible for him to find somewhere else to go.” When B.J. wrestled the knife away from S.B., he demanded it back so that he could “do it myself.” As B.J. attempted to grab her phone to call the police, S.B. pushed her down and struck her in the face with his arm.

On February 10, 2019, after moving out of B.J.’s residence, S.B. again threatened to kill himself, and left, taking their eldest child, J.B., with him against B.J.’s wishes. Two days later, S.B. arrived at B.J.’s residence with the police to get his belongings. When S.B. left, B.J. noticed that he had taken all of J.B.’s belongings. Utilizing a tracking system on the child’s phone, B.J. discovered the child was in Bakersfield near the residence of S.B.’s mother.

B.J. also alleged that between 2005 and 2019, S.B. had punched or slapped her in the face and on the arms and legs; hit her head with a remote control, cut her nose with wire cutters; pushed her over a couch; and threw her to the ground. B.J. attached a series of text messages in which S.B. threatened to commit suicide.[9]

B.J. concurrently filed a request for child custody and visitation, and requested to restrict S.B.’s travel with the children. The trial court granted a temporary restraining order protecting B.J. and the three children, granting legal and physical custody of the children to B.J., and prohibiting S.B. from traveling with the children. The court set a hearing on a permanent restraining order.

In his written response to the request for a restraining order, S.B. disputed B.J.’s allegations and argued that B.J. made up the allegations to regain custody of J.B. To show amicable communications between him and B.J., S.B. attached copies of text messages between February 10 and February 14, 2019, after he had moved out of B.J.’s residence.[10] Despite admitting to taking J.B. to Bakersfield, S.B. alleged he did so because the child had been assaulted by his mother.

On April 10, 2019, the parties agreed to modify the custody and visitation order with respect to J.B. The parties agreed that J.B. would stay in S.B.’s custody in Bakersfield pending resolution of the next hearing.

The hearing on B.J.’s request for a permanent restraining order spanned the course of several days. However, the record on appeal contains a reporter’s transcript of only one day of the hearing. In the first page of the transcript, the court noted that it had previously heard B.J.’s testimony, and was ready for S.B’s case-in-chief. The transcript includes S.B.’s testimony, B.J.’s rebuttal testimony, closing argument by counsel, and the court’s ruling.

In B.J.’s rebuttal testimony, she testified that sometime in June 2019, her employer received private text messages that she had previously sent to S.B.[11] B.J. believed S.B. sent the messages in retaliation for her testimony at the first day of the restraining order hearing. B.J. also testified that S.B. had continued threatening to commit suicide, and accessed personal notes that had been backed up to her personal email account.[12] When S.B. increased his verbal and physical abuse of B.J. around October 2018, she sought help for counseling and assistance.

In his own testimony, S.B. denied ever being verbally or physically abusive towards B.J., and denied that the various incidents that B.J. had described in her oral testimony and declarations had ever occurred.[13] S.B. believed the children might have been around to witness some of the couple’s arguments. S.B. also denied doing anything in front of B.J. to show he was going to commit suicide.

S.B. referred to a text message he had sent to B.J. wherein he stated, “You see my actions are the problem, which means you’re saying you should be able to be a shitty, hurtful person. You never have to suffer, but you’re being hurtful without being physical.” S.B. denied that his reference of “being physical” meant he physically touched or abused B.J. He also denied sharing B.J.’s text messages with her employer.

Following his testimony, S.B. requested that J.B. testify. When the court requested an offer of proof, S.B’s counsel responded that J.B. would testify that he never witnessed any physical violence between S.B. and B.J. Though the court denied S.B.’s request to have J.B. testify, the court stated that it would “assume for purposes of this hearing, that [J.B.] would testify that he never saw any physical violence between his parents.”

The court found by a preponderance of the evidence that abuse occurred within the meaning of section 6320, including infliction of bodily injury, threatening and harassing conduct, and conduct that disturbed the peace of B.J. The court found the documentary evidence corroborated “to a large degree the kind of conduct that the matter alleged,” including S.B’s repeated threats to commit suicide. The court issued a three-year restraining order, and adopted the current custody order.

DISCUSSION

To the extent we can understand the arguments, S.B. contends that this court should reject B.J.’s testimony as not credible, apparently intending to challenge the sufficiency of the evidence. S.B. also contends that the trial court infringed on his right to due process by denying his request to call J.B. as a testifying witness, and was biased against him during the hearing.

S.B. has forfeited these contentions for the failure to provide an adequate record on appeal. It is a fundamental principle of appellate procedure that we presume the trial court’s judgment is correct, and that the appellant bears the burden to demonstrate, on the basis of a sufficient record, that the trial court committed an error justifying reversal. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) “‘“A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.]” (Ibid.; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)

Here we have only a partial record of the evidence at the hearing. B.J.’s testimony in her case-in-chief and the exhibits she introduced at the hearing were not made part of the record on appeal. Without providing a sufficient record, S.B. has forfeited his contentions that the evidence is insufficient, that the trial court erred in not allowing J.B. to testify, and that the trial court exhibited bias in its conduct of the hearing.[14]

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY, J.

[1] Unspecified statutory references are to the Family Code.

[2] The messages state inter alia: “I’m dying and I would like to spend time with [the children] to keep myself from walking outside and just ending it all”; and “[a]t this point suicide doesn’t feel like a threat it just feels like the best option for me since I literally have no other options.”

[3] In one text message, S.B. stated he was having a panic attack, and that “[f]ocusing on [the children] is making this worse. I think this is it for me friend.” B.J. responded, “Don’t threaten suicide. Don’t focus on that. Please. This is how I feel trapped. Because now I feel like just tell you [to] come home to prevent that . . . . Just don’t focus on suicide please.”

[4] The text messages and email that S.B. purportedly sent to her employer are not part of the record on appeal.

[5] B.J. gave S.B. permission to access her inbox so that he could purchase music subscriptions using her account. She did not give S.B. access to her backup notes in her email account.

[6] At various times, S.B. referenced B.J.’s prior testimony in which she discussed times that he physically assaulted her.

[7] We note as well that S.B. has forfeited the contentions by failing to provide cogent legal argument and citation to applicable authorities. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)

[8] Unspecified statutory references are to the Family Code.

[9] The messages state inter alia: “I’m dying and I would like to spend time with [the children] to keep myself from walking outside and just ending it all”; and “[a]t this point suicide doesn’t feel like a threat it just feels like the best option for me since I literally have no other options.”

[10] In one text message, S.B. stated he was having a panic attack, and that “[f]ocusing on [the children] is making this worse. I think this is it for me friend.” B.J. responded, “Don’t threaten suicide. Don’t focus on that. Please. This is how I feel trapped. Because now I feel like just tell you [to] come home to prevent that . . . . Just don’t focus on suicide please.”

[11] The text messages and email that S.B. purportedly sent to her employer are not part of the record on appeal.

[12] B.J. gave S.B. permission to access her inbox so that he could purchase music subscriptions using her account. She did not give S.B. access to her backup notes in her email account.

[13] At various times, S.B. referenced B.J.’s prior testimony in which she discussed times that he physically assaulted her.

[14] We note as well that S.B. has forfeited the contentions by failing to provide cogent legal argument and citation to applicable authorities. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)