Filed 6/2/22 Griffin v. Cesal CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed.

Daelani Griffin, in pro. per., for Plaintiff and Appellant.

Rylee Cesal, in pro. per., for Defendant and Respondent.

Daelani Griffin filed a petition for a harassment restraining order (Code Civ. Proc., § 527.6) against Rylee Cesal. Griffin claimed that Cesal and others had insulted her in social media posts. The trial court denied the petition. It commented, among other things, “This stuff . . . doesn’t even come close to the kind of harassment that’s required for a civil restraining order. You guys . . . have a spat on Facebook. . . . Just block them and move on. . . .”

Griffin appeals. She contends that Cesal’s conduct was civilly and criminally unlawful. She also contends that the trial court “was not acting as a neutral based on the law.”

We will hold that Griffin has forfeited her contention that the conduct was unlawful by failing to show that she raised it below, by failing to give us an adequate record, and by failing to support it with a meaningful legal analysis.

We will further hold that Griffin forfeited her contention that the trial court displayed bias by failing to raise it below and by failing to file a writ petition. In any event, the trial court’s comments were proper, and they show that it ruled based on the appropriate legal standard.

Accordingly, we will affirm.

I

STATEMENT OF FACTS

As we will discuss, we do not have Griffin’s petition. We also do not have Cesal’s response to Griffin’s allegations.

Hence, the following statement of facts is taken from Griffin’s appellate brief and from her testimony during the hearing in the trial court.[1] It is intended only to outline Griffin’s position, not to accept it as proven.

According to Griffin, Cesal harassed her via social media. Cesal called her a prostitute, materialistic, and the cause of COVID; Cesal also said that she looked like a child. Three other women similarly harassed Griffin; Griffin “inferred” that Cesal “encouraged” them. When Griffin blocked their accounts, they opened new ones. She admitted that, as of the hearing, she had not had any contact from any of the women for three or four months.

II

STATEMENT OF THE CASE

In February 2021, Griffin filed a petition for harassment restraining orders against Cesal. The petition is not in the record. The trial court denied a temporary restraining order. Cesal filed a response, which is also not in the record.[2]

In March 2021, after a hearing, the trial court denied a permanent restraining order. It commented: “[L]et me tell you the kind of stuff that gets heard down here. . . . I had a young lady who says she was sexually assaulted, and requesting an order. This stuff . . . doesn’t even come close to the kind of harassment that’s required for a civil restraining order. You guys . . . have a spat on Facebook. . . . Nobody cares about these s[p]ats. Just block them and move on. . . . If I put restraining orders on people, I’m giving them orders to do things — or not to do things that they, otherwise, are legally allowed to do. They lose their rights to possess firearms. For me, that’s a big deal. They have to stay away from areas. It goes on their FBI record. So every time a police officer pulls them over to stop, and if they run a rap sheet they see a restraining order, it will change the whole nature of the contact. But I can tell you, a restraining order requires unlawful harassment. A lot more than I’m seeing here. So the Court is going to deny the request for a restraining order.”

III

DISCUSSION

A. Legal Background.

We begin with some fundamental principles of appellate law, all of which come into play here.

First, “‘[the appellant] has the burden of providing an adequate record. [Citation.] . . . Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

Second, a brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) “Rather than scour the record unguided, we may decide that the appellant has forfeited a point urged on appeal when it is not supported by accurate citations to the record. [Citations.]” (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.)

Third, an appellate brief must “support each point by argument and, if possible, by citation of authority . . . .” (Cal. Rules of Court, rule 8.204(a)(1)(B).) “One cannot simply say the court erred, and leave it up to the appellate court to figure out why. [Citation.]” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) “Where an appellant fails to present argument or legal authority, he or she forfeits appellate consideration of the issue. [Citations.]” (Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 464.)

Fourth, “‘t is axiomatic that arguments not raised in the trial court are forfeited on appeal.’ [Citation.]” ([i]Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1074.) “‘[A]ny other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.’ [Citation.]” (N.M. v. Superior Court (2016) 5 Cal.App.5th 796, 808.) While there are a few exceptions, it is Griffin’s burden to invoke one and to show that it applies.

Last but not least, “‘[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].’ [Citations.]” (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)

B. Illegality.

Griffin does not contend that there was insufficient evidence to support the denial of her petition. Because she has not supplied an adequate record, any such contention would fail.

Rather, she argues that Cesal’s conduct was criminal, because it constituted stalking (Pen. Code, § 646.9), repeated electronic communication with the intent to harass (Pen. Code, § 653m, subd. (b)), posting personal identifying information for the purposes of causing harassment by a third party (Pen. Code, § 653.2, subd. (a)), and making a criminal threat (Pen. Code, § 422). She also argues that Cesal’s conduct was civilly actionable as false-light invasion of privacy, defamation, and — because it caused Griffin to suffer anxiety — under the Americans with Disabilities Act.

Griffin has not provided us with an adequate record to support this argument. And because she has not, she also cannot cite any support for this argument in the record. She cites the record only twice. The first citation does not support the matter stated. The second cites page numbers that do not exist.

Separately and alternatively, she does not support the point with meaningful argument and analysis. She does not lay out the elements of these crimes and causes of action; she does not explain how Cesal’s conduct satisfied those elements. She also does not explain how the commission of these crimes and/or civil wrongs would necessarily constitutes actionable harassment.

Finally — and again, separately and alternatively — Griffin does not show that she raised this particular argument below.

C. Judicial Bias.

Griffin argues that the trial court erred by taking into consideration the effect of a protective order on a defendant. Taking its remarks as a whole, however, clearly that was not a determinative consideration. Rather, it used the effect of a protective order on a defendant — e.g., loss of the right to possess firearms, loss of the right to be in certain areas, and a criminal record — to explain to Griffin why the standard for granting a restraining order is as high as it is. It concluded that it was deciding the case under the correct legal standard: “[A] restraining order requires unlawful harassment. A lot more than I’m seeing here.”[3]

Griffin also complains that these remarks show “personal bias.” She forfeited any claim of judicial bias by failing to bring a disqualification motion below. (Code Civ. Proc., § 170.3, subd. (c)(1); People v. Guerra (2006) 37 Cal.4th 1067, 1110-1111, disapproved on unrelated grounds in People v. Rundle (2008) 43 Cal.4th 76, 151; see also Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1339.)

She additionally forfeited any such claim by failing to file a prompt writ petition. An appellate court can review a claim of judicial bias only by writ, not by appeal. (Code Civ. Proc., § 170.3, subd. (d); People v. Lucas (2014) 60 Cal.4th 153, 304, disapproved on unrelated grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)

We hasten to add that Griffin has not shown so much as a hint of bias. “‘[A] trial court’s . . . rulings against a party — even when erroneous — do not establish a charge of judicial bias, especially when they are subject to review.’ [Citation.]” (People v. Farley (2009) 46 Cal.4th 1053, 1110.)

IV

DISPOSITION

The order denying the petition is affirmed. In the interest of justice, we do not award costs to either side.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.

[1] Griffin offers us a YouTube link, supposedly to a video showing “Cesal encouraging . . . online rants.” We cannot consider any evidence that was not presented to the trial court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

[2] Griffin did designate her petition for inclusion in the clerk’s transcript. However, she designated it with the wrong filing date; hence, the clerk could not find it and did not include it. Griffin has not asked to augment the existing record.

If this were the only problem with the record, we might consider augmenting it on our own motion. In addition, however, Griffin did not designate Cesal’s response at all.

[3] Griffin complains specifically that the trial court told her “to ‘get off social media.’” It did not — not in the words in quotation marks, and not in any other words. To the contrary, it told her, “Just block them and move on.”