Filed 4/27/17 Fuentes v. Franchi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



WILLSON FUENTES,

Plaintiff and Respondent,

v.

RICARDO U. FRANCHI,

Defendant and Appellant.
D070554



(Super. Ct. No. 37-2016-00009926-
CU-HR-CTL)


APPEAL from an order of the Superior Court of San Diego County, Randa Trapp, Judge. Affirmed.
Margaret Grace Tafoya for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Ricardo U. Franchi appeals from an order granting an injunction prohibiting harassment under Code of Civil Procedure section 527.6. Franchi contends substantial evidence does not support the trial court's decision. However, as Franchi's brief acknowledges, there is no reporter's transcript of the proceedings. In the absence of a reporter's transcript, the evidence is conclusively presumed to support the judgment. (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 Orders
In March 2016 Willson Fuentes filed a request for a civil harassment restraining order against Franchi. In an accompanying declaration, Fuentes stated he had known Franchi for more than 10 years. Apparently, the two men know each other from work in organizing and conducting soccer games. Fuentes's declaration describes three incidents during a one-year period where Franchi made violent threats and vandalized Fuentes's automobile. Fuentes's declaration states he is "suffering emotional distress and fear for [his] safety . . . ."
In April 2016 the court granted Franchi's request for a continuance "to allow time to bring evidence." The court issued a temporary restraining order and set the matter for a hearing.
B. The Hearing
In May 2016 the court conducted a hearing. The clerk's minutes state the court informed the parties "this matter is not being reported by a court reporter or recorded electronically." According to the clerk's minutes, the parties were each sworn and testified. After "careful review of the entire record," the court granted Fuentes's request for a civil harassment injunction. Among other things, the court ordered Franchi "not to contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send any messages to, follow, stalk, or destroy the personal property of [Fuentes]." The court also ordered that Franchi cannot "own, possess, have, buy or try to buy, receive or try to receive, or in any other way get a gun or firearm" and must "sell to a licensed gun dealer or turn in to police any guns that he [] possesses or controls . . . ." The order protects three other people in addition to Fuentes. The order expires at midnight on May 9, 2019.
C. No Reporter's Transcript or Substitute
Franchi's lawyer timely filed a notice of appeal. Franchi's designation of record on appeal states he is proceeding without a reporter's transcript. 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. Franchi's Opening Brief
In the opening brief, Franchi's lawyer acknowledges "the matter was not recorded by a court reporter or an electronic recording device, thus no transcript or record of the actual proceedings exist." The opening brief states this case is "intertwined with several other relevant cases that contain a relevant record." In the brief, Franchi's attorney states, "Appellant/Defendant seeks to augment the record on appeal in separate motion and is proceeding with [a]ppellant's [o]pening [b]rief as if the record has been augmented."
Franchi's brief then contains a seven-page "Statement of the Facts" containing no citations to the record whatsoever. There, Franchi contends he is the victim, not the perpetrator. He also contends he was exonerated in a criminal case arising from the same underlying incidents. Franchi also contends he prevailed in a related civil harassment matter brought by someone other than Fuentes. The absence of record citations in Franchi's statement of facts is not surprising, since there is no reporter's transcript or substitute for a transcript, and Franchi's lawyer filed the brief without first bringing and obtaining a ruling on the motion to augment counsel represented she would be filing.
However, not only is there no reporter's transcript, as it turns out, there is no motion to augment either. Having not found any motion to augment in the court's docket, in an abundance of caution to ensure one perhaps might have been filed, but mis-docketed, the deputy clerk telephoned Franchi's lawyer to inquire. Franchi's lawyer stated she decided not to file a motion to augment and asked that the representation in her brief that a motion to augment would be filed be stricken.
California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant's opening brief "must . . . [p]rovide a summary of the significant facts limited to matters in the record." Franchi's opening brief violates this rule. His seven-page "Statement of the Facts" is based on matters outside the record, evidenced by the complete lack of record citations.
"'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 disregard Franchi's purported statement of facts in his brief.
DISCUSSION
Franchi's only contention on appeal is the order granting the civil harassment injunction is not supported by sufficient evidence. He asserts, "[T]he trial court did not review all the evidence made available to the trial court at the hearing." He contends "the trial court violated his constitutional due process rights by not allowing testimony and evidence to be presented at the hearing to rebut the allegations of [Fuentes]." Seeking to excuse or justify the lack of record support for these assertions, Franchi's brief states, "Mr. Franchi never imagined he would be in a position where he would have to appeal this matter, such that he did not bring or provide his own court reporter for the underlying case."
Franchi's brief acknowledges he "is placed at an extreme disadvantage without having a record of the underlying proceedings." More than just disadvantage, "'[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) When reviewing a trial court ruling we do not reweigh the evidence, make our own factual inferences that contradict those of the trial court, or second guess the trial court's credibility determinations. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.)
Accordingly, "[w]here 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 [or order] 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.) Franchi's arguments rest on purported evidence and procedural history that is not before us. Absent an appropriate record on appeal, we cannot reach those issues.
Franchi notes that the minute order granting the injunction does not "provide any insight as to what testimony was provided, what additional documents were considered" or contain express findings of fact. From these matters in which the record is silent, Franchi asserts, "Given the substantial evidence standard of appellate review, it is evident that the trial court erred in its finding that Mr. Fuentes[] presented reasonable and credible evidence of civil harassment." This argument is untenable because it entirely misconceives the applicable standard of review and burdens on appeal. Contrary to Franchi's assertion, "we must presume the judgment is correct and where the record is silent must make all reasonable inferences in its favor." (Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 156.)
Last, citing section 909, Franchi asserts that because of the "extreme violations" of [his] due process rights, this court should "err on the side of reversing and remanding." Although Franchi's argument is somewhat unclear, he appears to being asserting that on appeal, we may admit new evidence under section 909 based on the factual representations in his brief and, having admitted this new evidence, we may revisit all of the trial court's findings and conclusions and enter different findings or remand to direct the superior court to do so. Even assuming we were to deem Franchi's argument an implied motion under section 909, the power conferred "is discretionary and should be invoked sparingly, and only to affirm the case." (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 42, italics added.) Accordingly, "if the judgment can be affirmed without consideration of [Franchi's] motion to take additional evidence, we need not consider it." (Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048.) Because the order can be affirmed without consideration of Franchi's proffered evidence, and in fact the proffered evidence is solely directed at undermining the order, we reject his request under section 909.
DISPOSITION
The order is affirmed. Because Fuentes did not file a brief in this court, there are no costs on appeal to award. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 704.)


NARES, Acting P. J.

WE CONCUR:



HALLER, J.



AARON, J.