Filed 11/14/18 Leff v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Brian Alexander Smith, Plaintiff, Defendant, and Appellant in pro. per.

Lauri Leff, Plaintiff, Defendant, and Respondent in pro per.

Brian Smith and Lauri Leff filed dueling requests for restraining orders against each other. The trial court granted Leff’s request and denied Smith’s. Smith now appeals.

We will hold that Smith has not shown any error and has not provided us with the reporter’s transcripts that would be necessary to do so. Hence, we will affirm.

I

FACTUAL BACKGROUND

The following facts are taken from the declarations and other documentary evidence filed before the hearing at which the trial court made the challenged rulings.

Leff and Smith were neighbors; they lived in apartments that faced each other across a courtyard.

According to Leff, around July 1, 2017, Smith began accusing her, falsely, of slamming a gate. He “would yell and scream” at her. After about a week of this, he “chased after” her as she was going out to her car. By the end of July, she testified, she noticed him “waiting for me, watching me, and following me.” He would sit in the hot sun and stare at her front door for hours. He took photos of her and “videotap[ed] [her] every move.” He also harassed newspaper carriers and the pool cleaner.

The owner of the apartment building agreed that Smith was “harass[ing],” “confrontational,” and “disruptive.” Another resident of the apartment building claimed to have “witnessed [Smith] harassing, in a threatening manner, . . . neighbors, mail carriers, newspaper couriers, and the pool maintenance man.” Two newspaper carriers confirmed that Smith had yelled profanity at them.

According to Smith, Leff was lying. She was in league with the owner of the apartment building, and they were trying to force him to move out. On July 1, 2017, he complained to the owner about Leff using drugs by the pool. Thereafter, Leff and a male friend tried to intimidate him by slamming the gate at “all hours of the ni[ght].”^[1] He videotaped some of the harassment. On July 31, 2017, Leff’s friend assaulted him by trying to knock a camera out of his hand.

Smith’s mother and a friend of Smith’s supported his claims that Leff used drugs in the pool area, that Leff slammed the gate in the wee hours, and that Leff’s claims of harassment and stalking were false.

II

PROCEDURAL BACKGROUND

On August 2, 2017, Leff filed a request for a harassment restraining order against Smith. On August 3, 2017, he filed a request for a harassment restraining order against her. The trial court granted temporary restraining orders in both cases.

On August 18, 2017, the trial court (per Judge Randall D. White) held a hearing on both requests. However, it continued the hearing so the parties could submit additional declarations. The parties then did so.

On September 15, 2017, the trial court (per Judge Ronald L. Johnson) held the continued hearing. After hearing testimony, it granted Leff’s request and denied Smith’s request. Thus, it issued a three-year restraining order prohibiting Smith from harassing Leff and requiring him to stay at least three yards away from her.

III

DISCUSSION

Smith raises four issues, which we will discuss below. However, a single subissue is common to three of them — namely, the effect of Smith’s failure to provide us with any reporter’s transcripts. Unfortunately, no matter how persuasive Smith’s claims of error may be, without the reporter’s transcripts, he cannot substantiate them, and we have no way of determining whether they are well-founded.

A court reporter was present at both hearings, on August 18, 2017 and on September 15, 2017. However, when Smith designated the record on appeal, he checked the box that said: “I elect to proceed WITHOUT a record of the oral proceedings in the superior court. I understand that, without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.”

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] . . . ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]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.”’ [Citation.] ‘“A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”’ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

These principles force us to reject most of Smith’s contentions.

First, Smith contends that Leff presented insufficient evidence to support the restraining order — indeed, that she presented “no credible evidence” at all.

According to the clerk’s transcript, both parties were sworn and testified. For all we know, this testimony provided more than sufficient evidence to support the restraining order. At a minimum, without a reporter’s transcript, Smith cannot show that it was insufficient.

Second, Smith contends that the trial court allowed Leff to present evidence but refused to allow him to present evidence. Once again, without a reporter’s transcript, Smith cannot show that this happened. The clerk’s transcript shows that Smith did testify. It does not show that he tried to present any other witnesses or evidence, nor does it show that the trial court refused to let him do so.

Third, Smith contends that the trial court erroneously refused to consider his additional declarations because they were untimely. The record fails to show that it made any such ruling. As part of this contention, he claims that the trial court clerks failed to inform him of “the rules of service.” However, they were not required to do so. “When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, fn. omitted.)

Fourth, Smith contends that the restraining order should be dissolved because he has since moved. Here, the problem is not so much the lack of a reporter’s transcript as the lack of any record at all. The fact that Smith moved is not shown in the record because it occurred (if at all) after the entry of the challenged orders.

Even if this fact were in the record, we could not consider it. “‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.] This rule reflects an ‘essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .’ [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal.” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

And finally, we must reject this contention for the additional reason that Smith has never asked the trial court to dissolve the restraining order. “In other words, there is simply no ruling for us to review. A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do. [Citation.]” (Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)

IV

DISPOSITION

The orders appealed from are affirmed. Because Leff has not appeared, we award neither party costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

SLOUGH

J.