Filed 6/30/17 N.A. v. Whitney G. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


N.A.,
Plaintiff and Respondent,
v.
WHITNEY G.,
Defendant and Appellant.

A149574

(Contra Costa County
Super. Ct. No. MSN161368)


Whitney G. appeals the entry of a three-year civil harassment restraining order entered against her in favor of N.A. Because Whitney G. failed to provide an adequate appellate record to allow for proper review of her claims, we affirm.
I. BACKGROUND
On July 21, 2016, N.A., in propria persona, filed a petition for civil harassment restraining orders against her husband’s ex-girlfriend, Whitney G. The petition was based on an incident at N.A.’s home, during which Whitney G. reportedly watched N.A. and her family for hours, then drove up and threatened to kill N.A., her husband, and their children. The court granted a temporary restraining order (TRO) against Whitney G. and set the matter for a hearing.
On August 11, 2016, the court held a hearing on N.A.’s petition. Neither N.A. nor Whitney G. was represented by counsel at the hearing. Several witnesses were sworn and testified for N.A., but there is no transcript of the hearing in the appellate record. The court granted a restraining order against Whitney G., requiring her to stay away from N.A., her husband, and their children for three years.
On August 19, 2016, Whitney G., now represented by counsel, brought a motion for reconsideration of the civil harassment restraining order. The trial court’s minute order indicates the parties were sworn and examined at the hearing on the motion for reconsideration, but again, there is no transcript of the hearing in the appellate record. The court denied the motion for reconsideration.
II. DISCUSSION
Whitney G. contends the order granting N.A.’s petition for a restraining order was not supported by sufficient, credible evidence. She also asserts the trial court erred in denying her the right to cross-examine N.A. and other witnesses at the hearing on the restraining order. We must affirm all the rulings of the trial court because Whitney G. has not provided a sufficient appellate record to permit proper review of her claims of error.
Code of Civil Procedure section 527.6, subdivision (a) provides a victim of harassment may seek a TRO and an order after hearing prohibiting harassment as defined in the statute. At the hearing, the court must receive any relevant testimony and may make an independent inquiry. (Code Civ. Proc., § 527.6, subd. (i).) If the court “finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.” (Ibid.) On appeal of civil harassment restraining orders, we review whether the express and implied findings of the trial court are supported by substantial evidence. (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 725.)
“It is . . . a fundamental rule of appellate review that an appealed judgment or order is presumed correct. [Citation.] ‘ “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .” [Citations.]’ [Citation.] To overcome this presumption, the appellant must provide an adequate appellate record demonstrating error. [Citation.] . . . Where the appellant fails to provide an adequate record of the challenged proceedings, we must presume that the appealed judgment or order is correct, and on that basis, affirm.” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 643–644.)
When an appellant challenges an order of the court as not supported by the evidence, it is critical that the appellant provide the entire evidentiary record before the trial court. As noted above, a court order is presumed correct, and the appellant has the burden of demonstrating error. When an appellant contends that an order is not supported by the evidence, that burden consists of demonstrating that, in the entire evidentiary record, there is no substantial evidence to support the court’s decision. (See, e.g., DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336 [“ ‘In determining whether a judgment is supported by substantial evidence, we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court.’ ”].) It is commonly held that the omission of a relevant evidentiary hearing transcript renders an appellate record inadequate and requires affirmance of the court’s order. (See DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 680, fn. 5; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–187 [citing 12 prior decisions finding a record inadequate for failure to provide a hearing transcript].)
Here, the trial court’s minute order indicates four witnesses, including N.A.’s husband and children, were sworn and testified on her behalf at the hearing on her petition. The trial court presumably listened to their testimony and entered orders it deemed appropriate based on its findings. Because Whitney G. claims the court’s orders were not supported by the evidence, it was her obligation to provide the entire evidentiary record on which the trial court based its ruling, including a transcript of the hearing. If the hearing was not transcribed, or if Whitney G. could not afford a transcript, she could have proceeded by way of a settled statement. (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 931, 933–934 [an alternative to submitting a transcript on appeal is to obtain a settled statement].)
Whitney G. also asserts the trial court erred in refusing to allow her to cross-examine witnesses at the hearing on the restraining order. It is well-settled that parties in civil proceedings have a right to confront and cross-examine witnesses. (Jackson v. Feather River Water Co. (1859) 14 Cal.18, 24; Mueller v. J. C. Penney Co. (1985) 173 Cal.App.3d 713, 722.) Whether a denial of the right to cross-examine a witness is improper and results in prejudicial error depends on the facts of the case. (Mueller v J. C. Penney Co., at p. 722, fn. 11 [court erred in completely denying plaintiff’s right to cross-examine witnesses but error was harmless under unusual circumstances of the case]; McCarthy v. Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 506–507.)
In this case, however, we are unable to evaluate whether there was prejudicial error because Whitney G. has not supported her argument with citation to a reporter’s transcript (or acceptable alternative) demonstrating the alleged procedural violation occurred. Without a record of what transpired at the hearing, we cannot determine whether the trial court denied Whitney G. the right to cross-examine witnesses, and if so, whether it violated her right to due process.
Although Whitney G. filed a motion for reconsideration below supported by her own declaration stating the trial court refused to allow her an opportunity to cross-examine witnesses at the civil harassment restraining order hearing, the trial court denied the motion for reconsideration. The court’s minute order on the motion for reconsideration reflects the parties were sworn and examined. Lacking a reporter’s transcript or settled statement from the hearing on the motion for reconsideration, we must assume the facts stated in Whitney G.’s declaration were controverted at the hearing and rejected by the trial court. In the absence of an adequate record to support Whitney G.’s claim of error, we cannot conclude her right to confront and cross-examine witnesses was violated. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 [“ ‘The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court [erred].’ ”].)
III. DISPOSITION
The trial court’s civil harassment restraining order of August 11, 2016, entered against Whitney G. in favor of N.A., is affirmed. The parties are to bear their own costs on appeal.






_________________________
Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.