King v. Hanhan

Filed 6/19/07 King v. Hanhan CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

David Hanhan appeals from a superior court order prohibiting him from coming within 100 yards of Eon King. Hanhan argues that the 100-yard stay-away order should be modified due to the proximity of his sons school to Kings house, as well as his mistake in failing to appear at a court hearing. Hanhan also wishes to subpoena witnesses and introduce evidence. We affirm.

I. Procedural Background

King filed for a temporary restraining order against Hanhan as a result of an incident between the two on June 27, 2006. The superior court issued the order on July 28, 2006, and set a hearing date for August 16, 2006, to rule on the permanent order. According to the temporary restraining order, Hanhan was to be served with the order and notice of hearing at least five days before the hearing, or by August 11. Hanhan was personally served with these documents on August 9. Despite proper service, however, Hanhan did not file an answer to the temporary order, nor did he appear at the hearing on August 16. After the hearing, the superior court entered a three-year restraining order against him effective August 16. Hanhan then filed this timely appeal on October 10, 2006.

II. Discussion

A.                 Modification of the Stay-away Order

Hanhan first contends that the 100-yard stay-away order should be revised, since the order would cause him problems picking up his son from school given its close proximity to Kings home.

Pursuant to Code of Civil Procedure[1] section 43, appellate courts have the authority to modify an order or judgmenti.e., to affirm it with changes (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  744, p. 773). However, this power is generally exercised only when the judgment contains an obvious clerical error or other defect resulting from inadvertence (id. at p. 777); when there is an error shown by the record or one admitted by the respondent (id. at pp. 777-778); or where new facts found on appeal call for a change in the judgment (id. at pp. 778-780).

On this record, there is no clerical error, error in the record, or error admitted by King. Modification of the stay-away order as requested by Hanhan would require this court to make factual findings, in the first instance, that the order prevents Hanhan from picking up his son at school and that there are no reasonable alternatives available to him. While an appellate court has the authority to make independent factual findings and take additional evidence on appeal (see  909; Cal. Rules of Court, rule 8.252(b)), such authority is limited and should be invoked sparingly, and only to affirm the judgment (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 41-42). Reviewing courts will not use section 909 to resolve conflicts in the evidence or to substitute their own factual determinations for those of the trial court. (See Tupman v. Haberkern (1929) 208 Cal. 256, 269; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090.) In her responding brief, King contends that the stay-away order will not cause Hanhan problems picking up his children from school, since there is an alternate route available that would not require Hanhan to come within 100 yards of her home. Because there is a conflict in the evidence on this point that is better left to the determination of the trial court, we will not modify the stay-away order.

B. Hanhans Request to Subpoena Witnesses and Introduce Evidence

Hanhan wishes to subpoena certain individuals who appeared at the scene of the incident on June 27, 2006, including his mother, his niece, King, and a police officer. He also wishes to introduce evidence of Kings allegedly racist comments. In this way, Hanhan is essentially requesting a new trial, but in the appellate court. The function of the appellate court, however, is to review errors of law, not to pass on questions of fact. (9 Witkin, Cal. Procedure, supra,  316, p. 354.)

As a result of Hanhans failure to file an answer and to appear at the hearing on August 16, a default judgment was entered against him. Because he was timely served with the temporary order and notice of hearing, this judgment was properly entered. (See  585; Kennedy v. Mulligan (1902) 136 Cal. 556, 557; Ford v. Loaney (1959) 169 Cal.App.2d 503, 508-509; Lester v. Beer (1946) 74 Cal.App.2d Supp. 984, 987.)

Given this courts inability to hear the evidence Hanhan wishes to introduce, as well as the default judgment entered against him, Hanhans remedy, if he has one, lies in the trial court. (E.g.,  473 [relief from judgment or order due to mistake, inadvertence, surprise, or excusable neglect];  533 [modification or dissolution of an injunction or temporary restraining order].)

III. Disposition

The order is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

___________________________

SEPULVEDA, J.

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[1] All further statutory references are to the Code of Civil Procedure.