Drelling v. Simons

Filed 7/25/07 Drelling v. Simons CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Michael J. Beecher, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Valerie Drelling, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

* * *

The trial court denied Valerie Drellings petition to prohibit harassment (Code Civ. Proc.,  527.6; all further statutory references are to this code, unless otherwise noted). For the reasons expressed below, we affirm.

I

Factual And Procedural Background

On August 1, 2006, Valerie Drelling requested an anti-harassment injunction against Scott Simons, her cotenant and landlord. In her moving papers, Drelling asserted Simons was illegally tapping into [her] phone line and refuses to stay off my phone line. She noted she had filed two small claims actions against him, and that she was in middle of civil/workmen[]s comp. cases with my atty.s and wanted defendant to stop immed. listening to private phone calls. She complained defendant kept me awake till 3:00-3:30 a.m. at times due to him pushing buttons on his phone on my line and the words line in use show up every 6 mins on my speaker/handset phone. She denied defendant had threatened her or acted violently, although he had held w/ hands tightly door/bedroom door shut so Im unable to exit bedroom or condo. According to Drelling, the phone company and Huntington Beach police refused to get involved, although the police spoke with building inspectors.[1] She demanded some $25 to replace a broken glass rice cooker lid, and had directed Simons to fix a stain on a wall and window. Further, she asked the court to order my rent back to $450.00 because Simons had raised it to $495 after listening in to a conversation on the phone I had w/ my friend where she told her [friend Simons] could get $500.00 for this room.

The trial court (Judge Watson) scheduled a hearing for August 18 without issuing a temporary restraining order, and directed Drelling to serve defendant. On August 18, the court (Judge Beecher) denied relief. A minute order reflects the trial court denied the injunction request after hearing the matter. The court mailed notice of the ruling four days later. The clerks transcript contains a form requesting the court to reissue the temporary restraining order (form CH-125) that does not bear a filing stamp. In this document, Drelling asked the court to reissue a temporary restraining order because defendant refuses to answer the back gate/sheriffs have tried 4 times to serve def. The words Order not Granted appear above Judge Beechers signature and date of August 18.

On the same day Judge Beecher denied her request to reissue the injunction, Drelling filed a notice of appeal with the appellate division of the superior court using a form for limited jurisdiction cases. She received a default notice in September for failing to designate papers or records. On September 15, Drelling filed another document repeating and adding to her earlier allegations. In late September, the presiding judge of the appellate division determined the division did not have jurisdiction, and in October the appeal made its way to the unlimited civil appellate unit. The clerk of the unit notified this court plaintiff had failed to deposit the required filing fee or to designate the record on appeal. Drelling ultimately elected to proceed on a clerks transcript alone without the reporters transcript.

II

Standard of Review

On appeal, we presume the trial courts judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess whether the trial court erred. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must support arguments with appropriate citations to the material facts in the record. If she fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Because Drelling has provided us with only a clerks transcript and no reporters transcript, this is essentially an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) In a judgment roll appeal, we conclusively presume the evidence is ample to sustain the trial courts findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the record. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.)

III

Discussion

A. Injunctions Prohibiting Harassment

A person who has suffered harassment may seek a temporary restraining order and an injunction prohibiting harassment. ( 527.6.) Harassment is defined as unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. ( 527.6, subd. (b).) Unlawful violence means any assault or battery ( 527.6, subd. (b)(1)), or stalking (Pen. Code,  646.9). Credible threat of violence is defined as a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose. ( 527.6, subd. (b)(2).) A [c]ourse of conduct is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. ( 527.6, subd. (b)(3).)

A person who files a petition for an injunction may obtain a temporary restraining order (see  527), which may issue with or without notice upon an affidavit that, to the satisfaction of the court, shows reasonable proof of harassment by the defendant, and that great or irreparable harm would result to the plaintiff. A temporary restraining order remains in effect, at the courts discretion, for a period not to exceed 15 days, or, if the court extends the time for hearing under section 527, subdivision (d), not to exceed 22 days, unless otherwise modified or terminated by the court.

Within the 15- or 22-day period, the court must conduct a hearing on the petition for the injunction. The defendant may file a response that explains, excuses, justifies, or denies the alleged harassment or may file a cross-complaint under this section. At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment. An injunction issued pursuant to this section shall have a duration of not more than three years. At any time within the three months before the expiration of the injunction, the plaintiff may apply for a renewal of the injunction by filing a new petition for an injunction under this section. ( 527.6, subd. (d).)

Upon the filing of a petition for an injunction . . . , the defendant 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. The court may for good cause, on motion of the plaintiff or on its own motion, shorten the time for service on the defendant. ( 527.6, subd. (g), italics added.)

B. Drellings Contentions

Drelling complains the trial court erred in failing to grant the restraining order based on no service of papers made on the defendant . . . . She asserts defendant avoided service and discouraged process servers . . . . She also claims the court erred as a matter of law in holding [she] was required to demonstrate both injury in fact and loss of money or property.

The clerks transcript does not disclose the reasons for the trial courts order denying Drellings petition. But Drelling admits she did not serve Simons. She presumably made her case concerning Simonss avoidance of service in the trial court. The court evidently rejected any claim concerning service, and nothing in the record demonstrates the court erred in this regard.

Drellings request that we find she has standing to bring an unfair competition claim because she has standing to prosecute [a] claim . . . for unlawful conduct and for violating laws is misplaced. Nothing suggests the trial court found Drelling lacked standing to file a petition to prevent harassment. Her petition did not properly raise a claim for unfair competition and we need not consider whether Drelling has standing to bring this type of claim.

III

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

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[1] Drelling asserted Simons had been arrested on May 21, 2006. She says the arrest was based on evidence and testimony presented by plaintiff with respect to defendants actions. She provides no further information concerning the arrest.