Filed 1/26/18 Alfonso v. Moran CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Respondent John Alfonso sought a restraining order under Code of Civil Procedure section 527.6[1] to restrain his neighbor, appellant Carol Moran, from harassing him. The trial court granted Alfonso’s petition, ordering Moran, among other things, not to harass or intimidate Alfonso.

Moran appeals the civil harassment restraining order, arguing insufficient evidence established the necessary elements under section 527.6. She contends no evidence showed Alfonso suffered “substantial” emotional distress. Alternatively, she argues even if Alfonso was personally distressed, no reasonable person would have suffered distress under the circumstances. Given that the record on appeal omits a reporter’s transcript, we are bound to presume sufficient evidence supports the trial court’s order. We affirm the civil harassment restraining order after hearing.

FACTS AND PROCEEDINGS

Alfonso and Moran were next-door neighbors in adjoining condominiums in a complex in Lodi. On December 20, 2016, Alfonso filed a request for a civil harassment restraining order against Moran. He listed himself and his friend, Isabel Ortiz, as the protected parties.

The request alleged Moran’s harassment had been ongoing from 2014 to 2016. According to Alfonso, Moran was his neighbor and a member of the homeowners association. After he prevailed against her at a homeowners association meeting, she began blocking the pathway in the complex when he tried to pass. She would also yell at him unprovoked, and sit for several hours on the pathway near his door so he felt he could not exit his home.

Alfonso attached a letter from his attorney to the homeowners association, documenting the harassment he had suffered from a person who was a homeowners association board member. The letter describes the mental and physical distress Alfonso had suffered as a result of the harassment. He met with a therapist for mental distress, and his medical doctor diagnosed him with an increased heart rate and elevated blood pressure.

Alfonso requested personal conduct orders that prohibited Moran from harassing, intimidating or stalking him and from contacting him either directly or indirectly in any way. Alfonso also requested a stay-away order that precluded Moran from coming within 25 yards of him and Ortiz, his home, his vehicle, and in stores when they were present.

That same day, the court granted a temporary restraining order against Moran that protected Alfonso but not Ortiz. The temporary restraining order prohibited Moran from harassing, intimidating, molesting, attacking, striking, stalking, threatening, assaulting, hitting, abusing, destroying personal property of, or disturbing the peace of Alfonso. The court denied a stay-away order until the hearing on the restraining order.

The hearing on whether to issue a permanent civil harassment restraining order was held on January 10, 2017. Both Alfonso and Moran testified at the hearing. Following the hearing, the court granted a three-year restraining order against Moran without a stay-away order. The court ordered Moran not to harass, intimidate, molest, attack, strike, threaten, assault (sexually or otherwise), hit abuse, destroy personal property of, or disturb the peace of Alfonso. Moran was also prohibited from owning, possessing, or having in any other way firearms and ammunition. On January 11, 2017, the court signed the Civil Harassment Restraining Order After Hearing, containing the above language and mandating that the order be entered into the California Law Enforcement Telecommunications System (CLETS). Moran timely appealed.

DISCUSSION

Moran contends insufficient evidence supports the civil harassment restraining order. In the absence of a reporter’s transcript of the hearing on the civil harassment restraining order, we are bound to presume sufficient evidence was presented to the trial court to support its findings.

Section 527.6 authorizes a person who has suffered harassment to obtain a temporary restraining order and injunction against the harassing conduct and provides an expedited procedure to obtain such an injunction. (§ 527.6, subd. (a)(1).) “The elements of unlawful harassment, as defined by the language in section 527.6, are as follows: (1) ‘a knowing and willful course of conduct’ entailing a ‘pattern’ of ‘a series of acts over a period of time, however short, evidencing a continuity of purpose’; (2) ‘directed at a specific person’; (3) ‘which seriously alarms, annoys, or harasses the person’; (4) ‘which serves no legitimate purpose’; (5) which ‘would cause a reasonable person to suffer substantial emotional distress’ and ‘actually causes[s] substantial emotional distress to the plaintiff’; and (6) which is not ‘[c]onstitutionally protected activity.’ ” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762 (Schild).)

In this case, Moran argues insufficient evidence supports element number five--the substantial distress element of section 527.6. According to her, the evidence presented failed to establish Alfonso suffered substantial emotional distress from her conduct, or that a reasonable person would have suffered such distress from her actions. She cites Schild to support her argument. (Schild, supra, 232 Cal.App.3d at p. 761 [court reversed civil harassment restraining order where substantial evidence did not support all the requisite elements of the willful harassment statute; the noise from a ball and verbal chatter by several people engaged in recreational basketball play in a residential backyard at reasonable times throughout the day did not constitute unlawful harassment under § 527.6].)

Because Moran has elected to proceed with her appeal on only a clerk’s transcript (Cal. Rules of Court, rule 8.121), the appellate record does not include a reporter’s transcript of the hearing on this matter. The absence of a reporter’s transcript on appeal is significant.

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “This presumption has special significance when, as in the present case, the appeal is based upon the clerk’s transcript.” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler).) In a “judgment roll” appeal, we must conclusively presume evidence was presented that is sufficient to support the court’s findings. (Ibid.) “ ‘[T]he question of the sufficiency of the evidence to support the findings is not open.’ ” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082.) We do not presume the record contains all matters material to a determination of the points on appeal unless the asserted error “appears on the face of the record.” (Cal. Rules of Court, rule 8.163; Nat’l Secretarial Serv. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) “f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ([i]Riley v. Dunbar (1942) 55 Cal.App.2d 452, 455 (Riley).)

In an attempt to downplay the critical importance of a reporter’s transcript, Moran contends in a footnote that “no additional facts were presented to the court beyond the contents of the Clerk’s Transcript.” But the record shows both Moran and Alfonso testified at the contested hearing on the civil harassment restraining order. The court, then, did consider facts and evidence in addition to the documents included in the clerk’s transcript. Given the restrictive rules of review that apply in the absence of a reporter’s transcript, we must presume the evidence presented was sufficient to support the court’s implicit finding Alfonso suffered substantial emotional distress, and a reasonable person would have likewise suffered substantial emotional distress. (Ehrler, supra, 126 Cal.App.3d at p. 154; Riley, supra, 55 Cal.App.2d at p. 455.)

Moran, as the appellant, bears the burden of “provid[ing] an adequate record to assess error.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Without a reporter’s transcript, the record is inadequate to assess her contention insufficient evidence supports the court’s implicit substantial distress findings.[2]

DISPOSITION

The civil harassment restraining order after hearing is affirmed.

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

MAURO, J.