Filed 6/14/22 M.M. v. H.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Sean Lafferty, Judge. Dismissed.

H.F., in pro. per.; DRE, A.P.C., Darren M. Richie and Shant Goorjian for Defendant and Appellant.

Law Office of Brian C. Unitt and Brian C. Unitt for Plaintiff and Respondent.

Brown Neri Smith & Khan, Ethan J. Brown, Kete P. Barnes and Antonio Castillo III, for Darren Richie Esq and DRE, A.P.C.

Benedon & Serlin, Judith E. Posner and Mark Schaeffer for Shant Goorjian.

Defendant and appellant H.F. (Husband) and plaintiff and respondent M.M. (Wife) are in the process of divorce and child custody proceedings. Wife filed for a restraining order under the Domestic Violence Prevention Act requiring Husband to stay away from her, their two children and the family home. The trial court, after a full hearing, granted a permanent Domestic Violence Restraining Order (DVRO) in favor of Wife to expire on December 22, 2025. Husband was ordered to move out of the family home.

Husband claims on appeal that the trial court abused its discretion by granting the DVRO. He contends the trial court applied the wrong legal standard and abused its discretion by granting the stay-away order and in issuing a residence-exclusion order.

Wife has filed a motion for sanctions based on Husband filing a frivolous appeal; the motion is based on Husband’s purposeful failure to provide an adequate record on appeal and by failing to provide any citations to the record in appellant’s opening brief. We agree with Wife that Husband’s brief is inadequate. Although Husband’s counsel argue that the facts and evidence did not support the trial court’s order granting the DVRO, there are no citations to the record in appellant’s opening brief. Moreover, Husband’s counsel have provided an inadequate record on appeal making it impossible for this court to review his claims. We will dismiss the appeal and impose sanctions against Husband’s counsel for filing a frivolous appeal.

FACTUAL AND PROCEDURAL HISTORY

The record in this case is limited. According to the register of actions, Husband filed a petition for dissolution of marriage on February 25, 2020. Wife filed her request for DVRO on August 3, 2020. The request for DVRO is not included in the record so it is not clear the reason(s) she sought the order. On August 18, 2020, Wife filed a declaration and a witness list, which is also not part of the record. The trial court granted a temporary restraining order.

The hearing on the permanent restraining order commenced on December 2, 2020. Wife testified. A witness, Martha M., testified on behalf of Wife. Wife’s testimony and Martha’s testimony have not been made part of the record on appeal. The matter was continued to December 23, 2020.

On December 23, 2020, the continued hearing on the permanent DVRO was held. Husband and two other witnesses testified on his behalf. Husband testified that he and Wife had been married for eight years. Husband was asked “[Wife] alleges in her paperwork that on [August 10, 2018] you violated her; is that true?” Husband denied violating her. Husband explained that Wife had gone out that evening. Husband stayed home with the their two children J.A. (born May 2004), and B.S. (born June 2011; collectively, the Children). Wife arrived home around 3:00 a.m. Husband was in the living room watching television. The Children were asleep in their bedrooms. Wife was drunk. Husband yelled at Wife for arriving home so late. J.A. woke up and came into the living room. Husband pointed out to J.A. that Wife was drunk and inappropriately dressed. Husband went to his bedroom and went to sleep. Wife went to sleep in another bedroom. He denied that they argued in his bedroom or that he assaulted her that night.

On August 31, 2018, around 5:30 p.m., Wife told him that she was going to have drinks with their neighbor, Martha. At around 8:00 p.m., he went over to Martha’s house. He went to the backyard to get a tool he had loaned to Martha’s husband. He looked in the window of the house and it appeared there was a party. Wife and Martha were in the living room and there was a young man dancing wearing only “small underwear.” The man was touching all the women present. When the man was about to touch Wife, Husband yelled “no” from outside but they could not hear him. He knocked on the glass but they did not hear it. He knocked harder and the glass broke. He entered the room through the window.

Husband yelled at Wife, calling her a “fucking bitch” and told her to go home. Husband denied that he grabbed Wife’s arm and pulled her hair.[1] Husband and Wife walked to their house but when they got to the front door, Martha’s husband attacked him. Martha’s husband broke one of his ribs. Husband insisted he was not hurting Wife; there was no reason for Martha’s husband to attack him.

Husband denied he had any contact with Wife on January 24, 2020, at 6:00 a.m., thus it was untrue that he was waiting for her when she came home from the grocery store and proceeded to insult her. On January 29, 2020, they were discussing paying the bills. He was upset she had not paid anything for two years. He denied he called her obscene names or threatened to hurt her. He filed for divorce because he was tired of Wife threatening to call the police or immigration on him. Husband claimed to only drink on occasion. He denied ever being physically abusive with Wife.

A neighbor testified on behalf of Husband. He lived next door to Wife and Husband. Husband once had scratches on his face; he told the neighbor that Wife had scratched him in the middle of the night. Husband also told the neighbor that Wife had threatened to call immigration on him. Husband’s nephew also testified. He visited Wife and Husband at their home in 2018. Husband told his nephew that he and Wife were getting a divorce. Husband claimed that Wife was “accusing him of stuff.”

During closing argument, Husband’s counsel argued that Wife never testified that Husband threatened to rape her or with physical violence. There was no evidence of threats. There were inconsistencies between her declaration and testimony. Further, there were no prior calls to the police or any bruises or medical problems documented.

Wife’s counsel stated in closing argument that she had presented evidence and testimony that supported the allegations in the DVRO. As for the incident on August 31, 2018, Martha testified that Husband broke through the window, yelled obscenities at Wife and dragged her out of her home. He was verbally abusive to her. The trial court found that Wife was credible. Further, Husband corroborated some of the events.

The DVRO was granted. The terms of the DVRO were as follows: (1) Husband was to stay away from Wife and the Children, except for court-ordered visitation; (2) the DVRO was to expire on December 22, 2025; (3) the stay-away order applied to Wife and her residence, workplace, vehicle, the Children and the Children’s schools; (3) Husband was to immediately move from their residence located in Wildomar; (4) Wife was given sole possession of the family’s animals; (5) Husband was to attend a 52-week batterer intervention program and show the court written completion; (6) Wife was awarded sole legal and physical custody of the Children and Husband was granted supervised visitation; and (7) Husband was not to consume any alcohol or drugs within 12 hours of visitation with the Children. A separate order of child custody and visitation granted sole physical and legal custody of the Children to Wife. Husband was granted visitation every other Saturday. Supervised visitation was ordered.

On January 19, 2021, Husband’s counsel, Kathleen Gadalla who was a lawyer at DRE, A.P.C. (DRE) law firm, filed a notice of appeal on behalf of Husband. Attached to the notice of appeal was the DVRO, the custody and visitation order, and the supervised visitation order. On March 22, 2021, Gadalla filed a notice designating the record on appeal. In the request for the clerk’s transcript, she asked for the notice of appeal (Jan. 15, 2021); the notice designating record on appeal (Feb. 5, 2021); the judgment or order appealed (Dec. 23, 2020); and “[a]ll exhibits presented at the hearing for permanent restraining order (Dec. 23, 2021). As for the reporter’s transcript, Gadalla requested only that the hearing on December 23, 2020, be included in the reporter’s transcript.

DISCUSSION

On appeal, Husband claims (1) the trial court erred by issuing the DVRO as it applied the wrong legal standard and there was no evidence of domestic violence supporting the order; and (2) the trial court erred by requiring that he move out of the family home.

A. DOMESTIC VIOLENCE RESTRAINING ORDERS

The Domestic Violence Prevention Act authorizes superior courts to issue orders “enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, . . . destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (Fam. Code, §§ 6320 [ex parte], 6340 [order after notice and hearing].) Family Code section 6300, subdivision (a), provides that a DVRO “may be issued . . . if an affidavit or testimony . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. The court may issue [a DVRO] based solely on the affidavit or testimony of the person requesting the restraining order.”

“The standard of review for an order denying injunctive relief is abuse of discretion, because ‘ “ ‘granting, denial, dissolving or refusing to dissolve a permanent or preliminary injunction rests in the sound discretion of the trial court upon consideration of all the particular circumstances of each individual case’ . . . .” [Citations.]’ [Citation.] ‘This standard applies to a grant or denial of a protective order under the DVPA.’ ” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495; see also In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 702.)

We are unable to determine if the trial court abused its discretion by granting the DVRO and requiring Husband to move out of the family home, based on the deficient brief filed by Husband and the failure to provide an adequate record on appeal.

B. INADEQUATE BRIEF

Initially, the brief filed on behalf of Husband is deficient. Husband complains that the trial court applied the wrong legal standard, that there was insufficient evidence of domestic violence to support the issuance of the DVRO, and the trial court erroneously relied on Wife’s testimony and declaration. However, appellant’s opening brief contains no citations to the record. As we will discuss post, this is possibly due to the insufficiency of the record that Husband has provided to this court, but even in the statement of the case, he fails to cite to the provided record.

California Rules of Court, rule 8.204(a)(1)(C) provides that each brief filed in the appellate court must “Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” “ ‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’ [Citation.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived.” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Husband does not provide one citation to the record in appellant’s opening brief. This is despite contending that there was insufficient evidence presented to support the trial court’s issuance of the DVRO and that the trial court abused its discretion—arguments that necessarily rely on the evidence presented in the trial court. These claims are waived for failing to properly reference the record.[2]

C. INADEQUATE RECORD

If we were to find that Husband has not waived his claims by failing to cite to the record, he has not met his burden of showing error by failing to provide an adequate record.

A “fundamental principle of appellate procedure [is] that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citation.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) “ ‘ “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.] ‘Consequently, [the appellant] has the burden of providing an adequate record. . . . Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Id. at p. 609; see also Ballard v. Uribe (1986) 41 Cal.3d 564, 574. [“[A] party challenging a judgment has the burden of showing reversible error by an adequate record”].)

“Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust).) Further, inadequacy of the record on appeal warrants dismissal of the appeal. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498; see also McGinnis v. Monjoy (1959) 169 Cal.App.2d 519, 522-523.)

Based on the record in this case, Wife filed a request for a DVRO. Wife provided a declaration and testified at a hearing. She presented a witness on her behalf. Husband was afforded a hearing on the matter, testifying in his own defense and presenting two witnesses. After hearing the evidence from both sides, the family court concluded that Wife was credible and granted the DVRO.

This court has no way of knowing on what grounds Wife brought her request for DVRO since it has not been included in the record. We can determine somewhat the allegations from the reporter’s transcript. However, without a copy of the request for DVRO, or Wife’s testimony, it is impossible to determine whether her claims of abuse, whatever they may have been, were credible and supported the issuance of the DVRO. Since we have no record of Wife’s testimony we cannot determine if the trial court properly exercised its discretion in granting the DVRO.

Based on the failure to cite to the record in appellant’s opening brief, which waives his claims, and the inadequate record provided on appeal, we order that the appeal be dismissed.

D. SANCTIONS

Wife has filed a separate motion for sanctions against Husband and his counsel for filing a frivolous appeal (Motion). She contends that Husband and his counsel provided an inadequate record by intentionally not including her testimony and declaration in support of the DVRO and relying only on the evidence Husband presented at the hearing on the DVRO. Wife also complains that Husband’s appellant’s opening brief contains no citations to the record. Wife seeks sanctions against Husband, and the two attorneys who filed appellant’s opening brief, Darren M. Richie and Shant Goorjian of the DRE law firm. Wife seeks $6,140 in attorney fees and an amount that will compensate the court for the cost of processing the appeal. Brian C. Unitt, Wife’s counsel, provided a declaration that he represented Wife on appeal. He detailed that for the research, record review, and drafting and preparation of the respondent’s brief he charged Wife $6,140.

Husband’s counsel, Richie, who signed appellant’s opening brief, and Antonio Castillo III, both lawyers at the DRE law firm, filed opposition to the Motion. They contend the Motion is improper. Richie and Castillo place the blame on prior counsel, who they do not name,[3] and who they claim is no longer associated with their law firm. They insist the inadequate record was due to an attorney’s mistake or inadvertence. They admit it was error to not include citations in appellant’s opening brief and the record is inadequate. However, they argue it would be unjust to sanction Husband and the current attorneys based on the prior attorney’s mistake. Further, the sanctions requested are excessive.

This court advised the parties that the matter of sanctions would be heard with oral argument on the merits of the appeal. (Cal. Rules of Court, rule 8.276, subd. (e).) Richie and the DRE law firm filed briefing in anticipation of oral argument. Richie and the DRE law firm accepted responsibility for the filing of the opening brief and stated that Goorjian was not responsible. Richie and the DRE law firm faulted Wife’s counsel for not reaching out to them prior to requesting sanctions. They also insisted that they had not filed a reply brief, explaining the omissions from the opening brief and the record, because the attorney/client relationship had broken down. They also argued that the errors were not intentional and the appeal was not frivolous. Richie and the DRE law firm admitted to not properly reviewing Goorjian’s work. The DRE law firm had taken steps to ensure this would not occur in the future.

Goorjian also filed a supplemental response. Goorjian claimed that his job at the DRE law firm was his first legal job after becoming an attorney. He was given an overwhelming amount of cases to handle at one time. He was advised to have all of his work reviewed by a supervisor at the DRE law firm. He had never prepared an appellate brief. In the instant case, he was not involved in the request for records and was unaware of what should be included. He had no access to legal research to learn the rules for filing an opening brief. Although he submitted the opening brief for review by a supervisor, it was never reviewed. He had a short deadline to file the opening brief and was unaware he could seek an extension. Goorjian submitted his resignation to the DRE law firm due to the working conditions. Goorjian requested that the DRE law firm pay his attorney fees incurred in defending this action. Counsel for both Goorjian and Richie appeared at oral argument asking this court not to impose sanctions.

Code of Civil Procedure section 907 provides, “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” California Rules of Court, rule 8.276 provides: “(a) Grounds for Sanctions [¶] On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay.” “Neither the Rules of Court nor the statutes provide any guidance as to the definition of a frivolous appeal.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646 (Flaherty).)

“Due process, fundamental fairness and the integrity of our judicial system all require that counsel be permitted to pursue their clients’ interests with the confidence that they will not be singled out at random for sanctions. In proper cases, the imposition of penalties for prosecuting a frivolous appeal may be fair and may serve the useful purpose of deterring similar conduct. However, such sanctions should be imposed rarely and only if the mandates of procedural due process are obeyed.” (Flaherty, supra, 31 Cal.3d at p. 654.)

“To determine whether an appeal is frivolous, we apply both a subjective standard, examining the motives of appellant and its counsel, and an objective standard, analyzing the merits of the appeal.” (Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834.) An appeal is considered objectively frivolous “ ‘ “when any reasonable attorney would agree that the appeal is totally and completely without merit.” ’ ” (In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 754; see also Flaherty, supra, 31 Cal.3d at p. 650 [“Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit”].)

In Foust, supra, 198 Cal.App.4th 181, the appellate court concluded that the lack of a complete clerk’s transcript or a reporter’s transcript made it impossible to “undertake a meaningful review” of the appellant’s arguments on appeal. (Id. at p. 187.) The respondent filed a motion for sanctions. The appellate court found “we may impose sanctions either when an appeal indisputably has no merit, or when it is filed for an improper purpose. We conclude that sanctions are warranted because Foust’s appeal is indisputably without merit.” (Id. at p. 188.)

Husband was represented by Gadalla, who was part of the DRE law firm, in the trial court. Gadalla filed the notice designating the record. Richie, along with Goorjian, who also were part of the DRE law firm at the time, filed appellant’s opening brief on behalf of Husband on September 13, 2021. They did not request to augment the record prior to filing appellant’s opening brief.[4]

Husband could seek review of the trial court’s exercise of its discretion in granting the DVRO. However, at the time the brief was filed, Richie and Goorjian, whose names appear on appellant’s opening brief, would have been aware that essential evidence was missing from the record in order to properly raise these issues. They did not seek to augment the record. They also are responsible for filing appellant’s opening brief with no citations to the record. Further, after receiving Wife’s brief, the DRE law firm made no effort to correct the mistakes in the opening brief or seek leave from this court to augment the record or even dismiss the case. The DRE law firm claims they could not file a reply brief to correct the mistakes because the attorney/client relationship had broken down. The reply brief was due in December 2021, and a substitution of attorney was not filed until February 23, 2022. The DRE law firm let the time for a reply brief to be filed expire while it still represented Husband.

Richie and Goorjian made no attempt to request that this court augment the record before filing appellant’s opening brief. Any reasonable attorney would be aware that the appeal was devoid of any merit based on the inadequate record and for failing to follow the court rules for briefs filed in the court. As such, sanctions are warranted for filing an appeal that was completely devoid of merit. (Flaherty, supra, 31 Cal.3d at p. 650.)

While sanctions are to be used most sparingly, here, multiple attorneys at the DRE law firm could have remedied the deficiencies in the appeal but proceeded forward —wasting this court’s time and causing Wife to incur unnecessary attorney fees. Further, “Sanctions may be awarded against both an appellant and its counsel.” (Malek Media Group LLC v. AXQG Corp., supra, 58 Cal.App.5th at p. 837.) However, there is nothing to support that Husband was responsible for the defects in appellant’s opening brief or in designating the records. As such, we will not assess sanctions in this case against Husband.

We also decline to impose sanctions against Goorjian. Based on his supplemental brief and oral argument, it was apparent that Goorjian was an inexperienced attorney who the DRE law firm was responsible for supervising. The DRE law firm failed to properly supervise Goorjian and allowed the inadequate opening brief to be filed. While Goorjian had some responsibility as an officer of the court to comply with the rules of court and educate himself as to how to properly file an appellate brief, it is clear that he was assured his work would be reviewed and corrected by a superior at the DRE law firm. As such, the sanctions will be assessed only against Richie, who was responsible for filing the opening brief.[5] “Factors relevant to determining the amount of sanctions to be awarded a party responding to a frivolous appeal include ‘the amount of respondent’s attorney fees on appeal; the amount of the judgment against appellant; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future.’ ” (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 519.)

Here, Wife’s counsel provided a declaration indicating the hours worked on the case and the reasons for the hourly fees charged. Although Husband’s counsel responded that the amount is too high, they make no specific objection to the number or hours or the hourly fee. They also made no objection at oral argument to the calculation of attorney fees by Wife’s counsel. As such, we believe the amount requested, $6,140 to compensate Wife for the expense of responding to the opening brief, is reasonable.

Wife’s counsel has also asked for sanctions against Richie and Goorjian to compensate this court for the cost of processing such appeal. “ ‘Because a frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals.’ [Citation.] (Foust, supra, 198 Cal.App.4th at pp. 189-190; see also Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1433 [“ ‘an appropriate measure of sanctions should . . . compensate the government for its expense in processing, reviewing and deciding a frivolous appeal’ ”].) We decline to impose such sanctions based on the circumstances.

We accordingly grant the motion for sanctions against Richie of the DRE law firm in the amount of $6,140 payable to Wife.

DISPOSITION

The appeal is dismissed. Richie of the DRE law firm is directed to pay Wife $6,140 as sanctions to compensate her for the attorney fees incurred to respond to this appeal. All sanctions shall be paid no later than 30 days after the date the remittitur is filed. Wife is awarded her costs on appeal.

Upon issuance of the remittitur, the clerk is directed to forward a copy of this opinion to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(3).) This opinion shall serve as notice to counsel that the matter of the sanctions imposed has been referred to the State Bar. (Bus. & Prof. Code, § 6086.7, subd. (b).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.

[1] Martha apparently testified that defendant had grabbed Wife’s arm and hair.

[2] We note that California Rules of Court rule 8.204(e) gives this court the discretion to strike appellant’s opening brief for noncompliance with the rules of court and allow Husband to file a corrected brief. However, this would not be beneficial as we conclude post the record is inadequate on appeal to review his claims.

[3] The DRE law firm later in supplemental briefing acknowledged they were referring to Goorjian.

[4] We note that on February 23, 2022, a substitution of attorney was filed and Husband is now representing himself.

[5] Goorjian, in his supplemental briefing and at oral argument, has requested that this court order that the DRE law firm pay his attorney fees to defend himself in this matter. However, Goorjian has provided no legal authority to support that this court can so order. As such, we decline to award him his attorney fees.