Filed 12/14/17 Bullock v. Macy CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



ROBERT MICHAEL BULLOCK,

Plaintiff and Respondent,

v.

JOSEPH ALEXANDER MACY,

Defendant and Appellant.
D071557



(Super. Ct. No. 37-2016-00027020-
CU-HR-NC)


APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.
Joseph A. Macy, in pro. per., for Defendant and Appellant.
Robert M. Bullock, in pro. per., for Plaintiff and Respondent.
Joseph Alexander Macy appeals from a civil harassment order entered against him under Code of Civil Procedure section 527.6. Macy contends there was insufficient evidence to support issuing the order. However, there is no reporter's transcript of the proceedings and without a reporter's transcript or authorized substitute the evidence is conclusively presumed to support the order. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Fain).) Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Request for Civil Harassment Restraining Order
In August 2016 Bullock, age 66 and self-represented, filed a request for a civil harassment restraining order against Macy, age 74. Bullock stated that Macy, his next door neighbor, was stalking him, had hit him in the face injuring his left eye, and had threatened to kill him. Bullock asserted the alleged harassment had been occurring "daily [and] weekly" since April 2013. Bullock attached to his request an August 3, 2016 San Diego County Sheriff's Department report. The report states that Bullock and Macy "got into a verbal and physical altercation in the garage of Bullock's house . . . . [¶] . . . Macy confronted Bullock in his garage and yelled obscenities at Bullock. Macy shoved Bullock and struck Bullock in the left side of his face with a closed fist." The report also contains a summary of police interviews with both men. Macy denied that he hit Bullock.
Represented by counsel, Macy filed a response to Bullock's request for a civil harassment restraining order. In an accompanying declaration, Macy denied striking Bullock and stated he had "no contact other than driving by Mr. Bullock on the easement over his property for over two years."
B. The Hearing
In September 2016 the court conducted a hearing. The clerk's minutes state the proceeding was not reported. The minutes indicate both parties were present (along with Bullock's wife), and each side was represented by separate counsel. The minutes also indicate that the parties were "sworn to testify on their behalf."
After the hearing, the court granted Bullock's request for a civil harassment injunction. Among other things, the court ordered Macy to not "attack, strike, stalk" Bullock, his wife, and his son. The order expires at midnight on September 16, 2019.
C. No Reporter's Transcript or Substitute
Macy filed a notice of appeal. He used a judicial council form for designating the record. Macy checked the box that states he elects to proceed on appeal "without a record of the oral proceedings in the superior court." By checking that box, he also acknowledged, "I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings." The boxes for an "agreed statement" and for a "settled statement" are not checked, indicating the record on appeal contains neither of these two substitutes for a reporter's transcript.
D. Macy's Opening Brief
Macy is self-represented on appeal. In the opening brief, he acknowledges that the hearing "was without a court reporter or recording . . . ." He contends, however, that Bullock submitted "no evidence" that he suffered "'substantial emotional distress.'" Macy also contends Bullock's testimony at the hearing did not "rise to the standard of 'clear and convincing'" evidence. Specifically, Macy contends that with no independent witnesses, it was a "'he said, he said situation.'" Conceding this is "[u]nrecorded testimony," Macy asserts that because he is an "experienced boxer" and "more importantly, left handed," if he had struck Bullock it would have been either (1) a blow to the right side of Bullock's face, not the left; or (2) a series of rapid right jabs followed with a left hook to Bullock's right side which would have caused considerably more damage than the alleged left eye injury. Thus, Macy concludes Bullock's testimony that Macy hit him in the left eye is fabricated and Bullock failed to sustain his burden of proof.
DISCUSSION
I. THE APPELLATE IMPACT OF NO REPORTER'S TRANSCRIPT AND NO SUBSTITUTE FOR A REPORTER'S TRANSCRIPT—THE ORDER IS PRESUMED TO BE SUPPORTED BY SUBSTANTIAL EVIDENCE

There is no reporter's transcript of the hearing, nor is there an adequate substitute such as an agreed statement under California Rules of Court, rule 8.134 or a settled statement under rule 8.137. As a result of this state of the record, two principles of appellate procedure dictate the disposition of this appeal.
A. The Presumption of Correctness
An appealed judgment is presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This is not only a general principle of appellate practice, but part of the constitutional doctrine of reversible error. (Ibid.) "'"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."'" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
Moreover, when reviewing a trial court ruling, we do not reweigh the evidence, make our own factual inferences that contradict those of the trial court, nor second guess the trial court's credibility determinations. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.)
B. No Reporter's Transcript—No Challenge to Sufficiency of the Evidence
Where "no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Fain, supra, 75 Cal.App.4th at p. 992.)
C. Analysis
Macy's arguments rest on the proposition the trial court should have believed him instead of Bullock. However, the evidence and testimony he cites is not in the record on appeal and therefore we cannot consider it. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1 ["a reviewing court may not give any consideration to alleged facts that are outside of the record"].) "'In reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief.'" (Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890.) Accordingly, we are required to disregard Macy's purported statement of facts in his brief.
Although Macy is self-represented on appeal, that status does not exempt him from the rules of appellate procedure or relieve him of his burden on appeal. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
It is the appellant's burden to present an adequate record for review. Macy has failed to do so here. Because Macy's only argument is that the trial court order was not supported by sufficient evidence, we must affirm the order. "'The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court [erred].'" (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
DISPOSITION
The order is affirmed. Bullock is entitled to recover costs incurred on appeal.



NARES, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.