Filed 6/30/17 Fuller v. Harris CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




LINDA ANN FULLER,

Plaintiff and Respondent,

v.

NICHOLAS HARRIS,

Defendant and Appellant.
C081178

(Super. Ct. No. 15DV03185)




Nicholas Harris, who is appearing in pro. per., appeals a three-year restraining order prohibiting him from harassing his ex-girlfriend and housemate, Linda Ann Fuller. (Domestic Violence Prevention Act (DVPA); Fam. Code, §6200 et seq.) Unfamiliar with the principles of law governing the trial court’s ruling and the limited scope of appellate review, Harris lodges 18 arguments, some only marginally coherent, expressing his frustration with his ex-girlfriend and the trial court and his apparent belief he has been misunderstood and mistreated throughout proceedings he characterizes as unfair. We have attempted to synthesize his arguments into cogent and cognizable legal issues to the extent possible. We conclude the arguments are without merit, and affirm.
FACTS
The trial court made factual findings based on Fuller’s and Harris’s testimony at trial. Neither party was represented by counsel. The trial court summarized the testimony and rulings that were made before a court reporter arrived and Harris agreed to pay her to report the proceedings for one hour. Neither party objected to nor corrected the trial court’s summary. Nor does Harris challenge the trial court’s factual findings.
Harris and Fuller cohabited for over five years. Fuller ended their romantic relationship and moved out of Harris’s house when she learned Harris had initiated an on-line fantasy relationship with a former girlfriend who was happily married and not interested in an extra-marital romantic relationship. By his own admission, Harris was angry, upset about the end of their relationship, and “wanted to take her down a level.” Despite her request to cut off all communication, he continued to lash out at her in emails, text messages, and letters, and contacted her employer and family members in hopes of reconciling. He informed Fuller’s employer that she had been using her work email to contact him and that she had taken small amounts of office supplies.
The trial court expressly considered the totality of the circumstances. Those circumstances included Harris’s constant attempts to make contact with Fuller through emails, phone calls, text messages, and letters after she had made clear she did not want to be contacted. When Fuller blocked Harris’s phone calls, he called her from a different telephone number. And when she remained unresponsive to his ongoing attempts to communicate with her, he wrote letters to members of her family soliciting their help in persuading her to contact him.
The court further found that Harris became obsessed over the separation and, on occasion, his behavior was threatening to her. On her birthday, Harris placed flowers on Fuller’s car in a gated community where she was residing temporarily and followed the delivery with an email. He continued to send text messages to her more than three months after she moved out lamenting the length of their separation. On November 12, he wrote: “I would love to kick the shit out of both of them. Not heard voice for 4 weeks, it makes me sick. I do not deserve to be treated like this for 94 days I have been home everyday waiting for you to come back . . . .” On November 15, Harris wrote again that “it has been 100 days.”
The court acknowledged that Fuller, after obtaining a temporary restraining order, went to Harris’s house to visit his dogs. She testified she went to the house when she believed he was working and would not be present. The court found her explanation credible, “while odd.” The court concluded: “Based on these facts, the documents admitted into evidence, and the additional testimony of both parties the court does find that there has been a pattern of intimidation, harassment, and disturbing the peace of Ms. Fuller by Mr. Harris. Therefore the court does find by a preponderance of evidence that there has been abuse and a Domestic Violence Restraining Order will issue against Mr. Harris for three years.”
DISCUSSION
I
The Legal Landscape
“The purpose of the Domestic Violence Protection Act (DVPA; Fam. Code, § 6200 et seq.) is ‘to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.’ (Fam. Code, § 6220.) . . . Section 6320 includes ‘molesting, attacking, striking, stalking, threatening, sexually assaulting, [and] battering . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.’ (§ 6320, subd. (a).)” (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 396, fn. omitted.) “We review the court’s issuance of a restraining order under the DVPA for abuse of discretion,” mindful of the legislative intent to broadly construe the terms of the DVPA to accomplish its purpose. (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483.)
II
What Were the Issues Before the Trial Court?
Harris complains throughout his opening brief that the trial court only heard one side of the story. He accuses the court of failing to consider the totality of the circumstances, including the lawsuits he filed that presented an unflattering portrayal of Fuller’s motivesand behaviors. He litters his accounts with examples of the profanities she used as well as her allegedly defamatory statements to his family members that he was suicidal.
Harris recognizes that he must be held to the same standard as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) We cannot provide him special treatment because he has chosen to represent himself. The folly in that decision is that a layperson, such as Harris, does not understand the basic principles of law to which the trial court must adhere. Here the only motion before the court was Fuller’s request for a domestic violence restraining order (DVRO). Harris’s motion to obtain a restraining order against Fuller had been dismissed and he had not asked for mutual restraining orders.
The court explained the scope of the issue before it clearly to Harris at trial. The court instructed Fuller not to answer a question from Harris during cross-examination about weapons in her step-father’s possession. “The case that’s before this Court and what the Court is seeking testimony on is whether or not the DVRO should issue on behalf of Ms. Fuller and to have you be the restrain[ed] party. I understand there may have been other cases perhaps dealing where you had sought a restraining order, but that’s not the case in front of the Court today. So that’s not what the Court is taking testimony or evidence on.”
Harris’s evidence about Fuller’s alleged vindictive behavior was not relevant to the sole question before the trial court—whether Harris had been harassing Fuller. We, therefore, reject all of Harris’s arguments that he received disparate treatment because he is a man, and that the court did not consider the totality of the circumstances because it did not review the court files from his other lawsuits against Fuller. The trial court properly considered the factual issues relevant to its determination whether Harris had harassed Fuller and the exclusion of evidence because it was irrelevant does not constitute disparate treatment. The court did not abuse its discretion by considering the only evidence relevant to the issue whether Harris’s conduct constituted harassment and justified a restraining order.
In a similar vein, the trial court refused to take judicial notice of 23 items requested by Harris. “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) Only matters relevant to a material issue can be judicially noticed. (People ex. rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) “ ‘Judicial notice substitutes for formal proof only because the matters judicially noticed are not reasonably subject to dispute. It is not sufficient for judicial notice that facts sought to be made the subject of judicial notice possess “generally” an assurance of accuracy.’ ” (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 146.)
In the court’s summary of the proceedings that had occurred before the reporter began transcribing, the court advised: “So Mr. Harris then proceeded to mention he had a request for judicial notice, and he read some of his requests. The Court then described the types of information that the Court can take judicial notice of, such things as what day of particular of the week -- a particular date fell on, . . . Sacramento being the county seat of Sacramento county and things of that nature. And then explained that the facts while they might be relevant to the case are not the type of facts I could take judicial notice of.
“I did inquire of Mr. Harris if there were any sort of facts of the type that I had described I could take judicial notice of that were included in his list, and he did not indicate that there were.”
Harris complains that the court did not allow him to read into the record 20 of the 23 requests for judicial notice and he should have been allowed additional time to make copies of the documents. On appeal, he identifies only six of the items and attaches random exhibits and treatises to his request. He failed to meet his burden before the trial court to identify which of the requests met the criteria for judicial notice and he repeats the error on appeal. Without a clear indication which matters he is asking us to judicially notice and the grounds upon which he bases his request, we cannot grant his request.
III
Credibility
Harris raises many issues that involve Fuller’s credibility. He complains about her use of profanities and her refusal to return money he placed in her PayPal account. He insists that he has merely acted in self-defense, having been the victim of her ongoing vindictiveness over his fantasy affair with a former girlfriend and Fuller’s misguided notification to his family that he was suicidal. And, throughout his opening brief, he alleges over and over again that, as a man, he was subjected to disparate treatment.
Harris cannot accept the trial court’s factual finding that Fuller’s testimony was credible and he fails to understand the barrier credibility findings present on appeal. “ ‘We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order. [Citation.]’ [Citation.]” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850 (Phillips).) Phillips, in fact, embodies the same undercurrent that runs throughout Harris’s brief; not only is he appalled that the court believed Fuller and, from Harris’s point of view, dismissed her behavior, but also that the restraining order is inappropriate because his conduct was nonviolent. To the contrary, he asserts, his resort to the courts to resolve the issues was entirely legal.
The Second District rejected the same argument in Phillips. “The DVPA . . . defines ‘domestic violence’ as ‘abuse.’ (§ 6211.) ‘Abuse is not limited to the actual infliction of physical injury or assault.’ (§ 6203, subd. (b).) For purposes of the DVPA, ‘abuse’ means, inter alia, ‘[t]o engage in any behavior that has been or could be enjoined pursuant to Section 6320.’ (§ 6203, subd. (a)(4).) Section 6320, subdivision (a) permits the court to enjoin a party from ‘harassing . . . or disturbing the peace of the other party . . . .’ [¶] ‘ “[T]he plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” ’ ” (Phillips, supra, 2 Cal.App.5th at pp. 852-853.)
The ground for the restraining order was not based on the filing of lawsuits, but on Harris’s ongoing harassment in trying to communicate with Fuller. Thus, his litigious response to the breakup is irrelevant to the issue before the court in deciding whether there were sufficient grounds for a domestic violence restraining order.
Fuller testified that she felt annoyed and threatened by the barrage of phone calls, emails, and text messages she received from Harris even after she terminated the relationship, moved out, and asked him to leave her alone. As in Phillips, there is no evidence in the record that Harris used, or threatened to use, physical force. Nevertheless, because the trial court found Fuller credible and she testified to harassing behavior, there is substantial evidence to support the trial court’s issuance of a three-year restraining order. As already discussed, Harris did not request a mutual restraining order and thus the question as to whether Fuller was also harassing Harris was not before the court.
IV
Fair Trial
We have attempted to organize and consolidate Harris’s discordant arguments under recognizable legal challenges. Several of his claims seem to assert that he was denied due process and a fair trial. He complains that the court reporter did not appear at the beginning of the trial despite his request to be there, the trial court limited his right of cross-examination, and the service of process was inadequate. We deem his fair trial arguments to be forfeited for lack of analysis as to how his right to due process and a fair trial was abridged and for failure to cite any legal authority.
“To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ (Atchley v. City of Fresno [(1984)] 151 Cal.App.3d [635,] 647; accord, Berger v. Godden [(1985)] 163 Cal.App.3d [1113,] 1117 [‘failure of appellant to advance any pertinent or intelligible legal argument . . . constitute[s] an abandonment of the [claim of error’].)” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Here, Harris’s legally unsupported and conclusory arguments fail to properly tender the due process issue for review.
Moreover, Harris also forfeited his due process complaints for failure to assert them in the trial court. He criticizes the court for asking for expediency once the court reporter began reporting. But he failed to object at trial. The trial court was attempting to assist Harris by expediting the trial because he had only paid for the court reporter to report for one hour. In fact, the court did not want to waste the court reporter’s time while it flipped through Fuller’s papers so it asked for a copy and moved on. In the absence of an objection at trial or an attempt to secure the reporter’s services for a longer period of time, he forfeits the issue on appeal.
Similarly, Harris did not object to any limitation on his cross-examination. Indeed, the only admonition the court gave him was following his long soliloquy about the restraining order and Fuller’s motivation for trespassing on his property. The court reminded him to ask a question that was not leading. Under these circumstances, Harris’s right to cross-examination was not unfairly restricted. Rather he was simply required to ask non-leading questions.
Harris admits he was served, but complains the service did not contain the proper forms. He fails to provide citation to the record or to any authority. We therefore cannot entertain his argument. (Atchley v. City of Fresno, supra, 151 Cal.App.3d 635, 647.)
V
Misinterpretation of the Trial Court’s Findings
It is difficult to decipher Harris’s arguments. Several are based on a misinterpretation of the trial court’s findings. He maintains that the court sanctioned trespass. Not so. The court considered the evidence that Fuller had gone to Harris’s house after obtaining a temporary restraining order to visit his dogs. The court found the behavior odd, but her explanation that she did not believe that Harris would be present was credible. The legal question whether the visit constituted trespass was not before the court.
Harris also complains about Fuller’s reference to her psychologist. He argues it was inappropriate to explain the psychologist’s advice without naming him or calling him to testify. But again Harris did not object at trial. And Fuller merely mentioned the psychologist and the fact the psychologist had referred her to legal counsel who recommended that she pursue a restraining order. Harris attempts to make an innocent and inconsequential reference to a psychologist during Fuller’s testimony into a challenge to the admissibility of the psychologist’s testimony or advice. He thus distorts the record. And without an objection and without authority or a cogent argument, we need not consider the issue on appeal. (Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.)
Finally, Harris asserts he objected to the court’s interpretation of emails and texts but the court’s response, “that’s evidentiary,” constitutes an abuse of discretion. The alleged incident is not at the pages Harris cites. Without context or legal authority, we cannot understand or address the argument.
It is important for Harris to understand what the restraining order means and what it does not. It means the trial court found that Fuller’s testimony regarding several months of phone calls, emails, text messages, and letters to her, to her employer, and to her family following the end of their relationship was credible, and therefore, constituted harassment. There is substantial evidence to support the trial court’s findings, and we, as a court of appeal, cannot upset a credibility finding when there is substantial evidence to support it. The trial court did not abuse its discretion by implementing the purpose of the DVPA, preventing further harassment as the parties reestablish their separate lives.
The restraining order makes no assessment of Fuller’s behavior. It does not condone trespass or the use of obscenities. Fuller testified she said and did things in anger after the breakup. The restraining order passes no judgment on the appropriateness of her responses, including her fear he had become suicidal. Nor does the restraining order, despite the domestic violence rubric, constitute a finding that Harris was physically assaultive or violent. It means that his constant attempts to communicate with her fell within the definition of harassment and the trial court was justified in restraining that conduct.
DISPOSITION
The three-year restraining order is affirmed.




RAYE , P. J.



We concur:



BUTZ , J.



HOCH , J.