Filed 2/25/22 Molina v. Clark CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Curtis Lynn Clark, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

INTRODUCTION

Curtis Lynn Clark appeals from a civil harassment restraining order issued against him after a hearing on a petition filed by respondent Itzel Molina under Code of Civil Procedure section 527.6.^[1] Molina filed two proofs of service and several declarations in advance of the hearing, during which the trial court heard testimony from Clark and two nonparty witnesses. On appeal, Clark failed to include Molina’s proofs of service and declarations in the clerk’s transcript, and elected to proceed without any record of the oral proceedings, including his and the other witnesses’ testimony. Clark contends the court erred in issuing the restraining order because: (1) he was not served with notice of the hearing; and (2) one of Molina’s proofs of service (which he falsely characterizes as her sole proof of service) was both defective and false. He fails, however, to provide an adequate record to review these contentions. “‘“f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’” ([i]Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) Applying this principle, we affirm.

THE RECORD

The record consists of a clerk’s transcript, containing only five documents: (1) the “Case Summary” from the trial court’s website, as of June 12, 2021; (2) the minute order from the January 4, 2021 hearing at which the court granted Molina’s petition for a restraining order against Clark; (3) Clark’s notice of appeal from the January 4, 2021 restraining order; (4) Clark’s notice designating the record on appeal; and (5) Clark’s proof of service of the aforementioned appellate notices. We summarize the relevant contents of these documents below.^[2]

1. Case Summary

On September 18, 2020, Molina filed a “Petition - Civil Harassment,” a “Notice - Court Hearing,” and a “Temporary Restraining Order” (TRO). On October 9, 2020, Molina filed a “Notice - Hearing & Order on Reissuance TRO,” and a declaration (the record does not reveal the identity of this or any other declarant). The same day, the trial court held and continued a “Restraining Order Hearing,” and “Reissued” a TRO. On October 26, 2020, Molina filed a “Declaration of Due Diligence.”

On October 27, 2020, Molina filed a “Proof of Service (Re: TRO Hearing[])” (the sole proof of service expressly challenged by Clark on appeal), and a second declaration of due diligence. The same day, Clark filed a “Response - Civil Harassment.”

On October 30, 2020, Molina filed a “Proof of Service (Personal Service of CH-109 CH-110 CH-100 CH-120 CH-120-INFO).”^[3] Molina also filed two declarations, and a notice of hearing and order on reissuance of a TRO. The same day, the court held and continued another restraining order hearing, and reissued a TRO.

On November 4, 2020, Molina filed two more declarations. On November 6, 2020, Molina filed another notice of hearing and order on reissuance of a TRO. The same day, the court again held and continued a restraining order hearing, and reissued a TRO.

On November 12, 2020, Clark filed a witness list, and an “Objection (at the Time of Hearing[]).” On November 25, 2020, Molina again filed a notice, and the court again held a hearing, ordered a continuance, and reissued a TRO. The same events occurred on December 8, 2020.

2. Minute Order and Appellate Notices

On January 4, 2021, the court held a final restraining order hearing, at which both parties were present with counsel. Clark testified on his own behalf. Two nonparty witnesses also testified (James Kern “on his own behalf,” and Kwame Williams “for Itzel Molina and James Kern”); each was cross-examined by Clark’s counsel. Apparently during cross-examination of James Kern, “Exhibit 3 (Black and White Copy of a Photograph of a Truck at Curb, Dated September 16, 2020)” was marked for identification only. The record does not disclose whether this exhibit was admitted into evidence, and is silent regarding any other exhibits. After hearing arguments from both parties’ counsel, the court granted Molina’s petition for a restraining order against Clark for a period of two years, to expire on January 4, 2023. The bailiff provided each party a copy of the signed and filed restraining order. The record does not include a copy of the order or reveal whether the court stated any express findings or reasoning.

Clark timely appealed. On his form notice designating the record on appeal, Clark checked a box indicating he elected to proceed without a record of the oral proceedings, and confirming, “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 deciding whether an error was made in the superior court proceedings.”

DISCUSSION

“Appellate courts have no independent knowledge of cases brought before them for review. A ‘record’ of the lower court proceedings must therefore be prepared [by the appellant], enabling [the] appellant to demonstrate the claimed error . . . and facilitating the appellate court’s review.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, Ch. 4-A ¶ 4:1.) “‘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. ‘“f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.”’ [Citation.] ‘“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.”’” ([i]Jameson, supra, 5 Cal.5th at 609.) Consistent with these principles, an “[a]ppellant cannot challenge [the] sufficiency of the evidence to support a judgment when there is no transcript of the oral proceedings.” (Eisenberg et al., supra, Ch. 4-A ¶ 4:3; see also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [“defendants elected not to provide a reporter’s transcript of the trial proceedings. Accordingly, they have no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court’s finding that injunctive relief was necessary to prevent a continuation of defendants’ unlawful conduct”].) “Nor can [an] appellant assert a defect in a document filed in the trial court unless the record includes a copy of that document.” (Eisenberg et al., supra, Ch. 4-A ¶ 4:5; see also Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1143 [“the problem with appellants’ claim that the agreement provided for fee recoveries without regard to work performed is that the appellate record does not substantiate this, because it does not include the agreement at all”], disapproved on another ground by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)

Here, the record is inadequate for meaningful review of Clark’s claims of defects in service. The record does not include the proofs of service filed by Molina on October 27 and 30, 2020. Nor does it include any of the declarations she filed -- each of which might have concerned service -- or any record of the oral proceedings -- such as a reporter’s transcript of the hearing at which the trial court issued the requested restraining order, presumably finding no material defect in service, after hearing evidence and argument from both parties. On this record, we cannot discern whether there was a defect in either of Molina’s proofs of service, or whether Molina’s evidence was insufficient to support the court’s presumed finding that she satisfied the applicable service requirements. (See Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102 [“Kramer also claims . . . Cosenza failed to plead and prove that he was a licensed contractor . . . . This claim . . . is not cognizable, as Kramer has not included in the clerk’s transcript a copy of the complaint showing the alleged pleading defect, and the alleged failure of proof is not shown in a reporter’s transcript”]; Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121 at 132; Rebney v. Wells Fargo Bank, supra, 220 Cal.App.3d at 1143.) “Marshaling the record and affirmatively demonstrating error are the appellant’s burdens, and [appellant] failed to carry those burdens here.” (Stratton v. Beck (2018) 30 Cal.App.5th 901, 914.) The same is true of Clark. By failing to provide an adequate record for review, he has defaulted, and the restraining order against him must be affirmed. (See Jameson, supra, 5 Cal.5th at 609.)

DISPOSITION

The order is affirmed. As respondent Molina did not appear, no costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.

^[1] Code of Civil Procedure section 527.6 authorizes a person who has suffered harassment to petition a trial court for orders prohibiting harassment, including both a temporary restraining order and an order after hearing. (Code Civ. Proc., § 527.6, subd. (a).) “Upon the filing of a petition under this section, the respondent shall be personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition. Service shall be made at least five days before the hearing.” (Id., § 527.6, subd. (m); see also Cal. Rules of Court, rule 3.1160(c) [“Service must be made in the manner provided by law for personal service of summons in civil actions”].)

^[2] We disregard all factual assertions in Clark’s appellate brief that are unsupported by the record. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2021) Ch. 8-D ¶ 8:173 [“the parties’ briefs cannot make arguments relying on facts outside the record . . . ; statements in the briefs based on improper matter are disregarded by the appellate court”].)

^[3] On our own motion, we take judicial notice of the existence of the following Judicial Council forms: CH-100 (Request for Civil Harassment Restraining Orders), CH-109 (Notice of Court Hearing (Civil Harassment Prevention)), CH-110 (Temporary Restraining Order (CLETS-TCH)), CH-120 (Response to Request for Civil Harassment Restraining Orders), and CH-120-INFO (How Can I Respond to a Request for Civil Harassment Restraining Orders?). (See Browse All Forms by Category (January 2022) California Courts <https://www.courts.ca.gov/forms-by-category.htm?filter=CH> [as of Feb. 24, 2022].)