Filed 9/28/17 R.N. v. Childs CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
| R.N., Plaintiff and Respondent, v. DERRICK CHILDS, Defendant and Appellant. |
A149768
(Alameda County Super. Ct. No. HF16833866)
|
Derrick Childs appeals in propria persona (pro. per.) from a domestic violence restraining order. He argues there was insufficient evidence to support the issuance of the order. Because we lack a sufficient record to evaluate his claims, we shall affirm the order.
Background
On October 5, 2016, R.N. filed a request for a domestic violence restraining order against Childs. The court issued a temporary restraining order and set the matter for hearing on October 26, 2016. Childs filed a written response to the request for a restraining order. He included a lengthy declaration, with exhibits, setting forth his response to R.N.’s allegations.
Following a hearing conducted on October 26, 2016, the court issued a restraining order against Childs with R.N., her daughter, her mother, and her sister listed as protected persons. The court’s order reflects that Childs and R.N. were present at the hearing. The order directs Childs to stay at least 100 yards away from the protected persons and not to harass or contact them.
Childs filed a timely notice of appeal. In his notice designating the record on appeal, Childs elected to proceed without a record of the oral proceedings in the superior court. Accordingly, the record on appeal is limited to a clerk’s transcript containing the documents filed in the superior court. There is no record of the testimony on which the court based its restraining order.
Discussion
Childs contends the court abused its discretion in granting the restraining order. He argues that R.N. did not meet her burden of proving that Childs caused her to suffer severe emotional distress.
Our review of a domestic violence restraining order is governed by the substantial evidence standard of review. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) Here, we lack an adequate record to assess Childs’s claims on appeal because we have no record of the oral proceedings conducted in the superior court. We are in no position to assess whether there is substantial evidence to support R.N.’s allegations without a record of the testimony heard by the court.
On appeal, we presume the judgment to be correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1415.) An appellant bears the burden of overcoming the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859–860.) The failure to provide this court with an adequate record not only fails to satisfy an appellant’s burden to demonstrate error, it also precludes review of any asserted error. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 [appellant who supplies no reporter's transcript is precluded from challenging sufficiency of the evidence]; In re Angel L. (2008) 159 Cal.App.4th 1127, 1136–1137 [court presumes evidence supports judgment when record of pertinent oral proceedings is not provided].) Inadequacy of the record may warrant dismissal of an appeal. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498; Ehman v. Moore (1963) 221 Cal.App.2d 460, 463 [“Where the appellant fails to provide the reviewing court with a record enabling it to review and correct alleged errors the appeal will be dismissed.”].)
Here, the record is patently inadequate. In the absence of a reporter’s transcript or other record of the oral proceedings in the trial court, the appeal is treated as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082–1083.) On such an appeal, the evidence is conclusively presumed to support the trial court’s findings. (Nielson v. Gibson (2009) 178 Cal.App.4th 318, 324.) This court’s review is necessarily “limited to determining whether any error ‘appears on the face of the record.’ ” (Id. at pp. 324–325.)
Because there is no record of the hearing on the restraining order, we conclusively presume there is evidence to support the trial court’s findings. Further, no error appears on the face of the record.
We are aware that Childs brings this appeal without the benefit of legal representation, but his status as a pro. per. litigant does not exempt him from the rules of appellate procedure or relieve his burden on appeal. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) We treat pro. per. litigants like any other party, affording them “ ‘the same, but no greater consideration than other litigants and attorneys.’ ” (Id. at p. 1247)
Disposition
The restraining order is affirmed.
_________________________
McGuiness, P.J.
We concur:
_________________________
Pollak, J.
_________________________
Siggins, J.
A149768
