Filed 3/3/22 Marriage of Anthony and Emily M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Alan K. Cassidy, Judge.

Anthony M., in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

Appellant Anthony M. (Anthony) appeals the order granting respondent, his ex‑wife Emily M. (Emily), a domestic violence restraining order (DVRO). He contends that the trial court erred in granting the permanent DVRO because he was never properly served with the temporary DVRO.[1] Emily served Anthony’s prior counsel rather than having a nonparty to the action serve him directly. Thereafter, Anthony appeared at a hearing on the restraining order without making objection to the service. Anthony waived any objection to the service. We affirm.

PROCEDURAL SUMMARY

On September 24, 2020, Emily filed a request for a temporary DVRO. The record does not contain any documents regarding service of that request.

On or about September 25, 2020, Anthony retained counsel to represent him regarding “child custody and visitation[,]” the “restraining order filed by [Emily,]” and dissolution of “marriage” proceedings. On September 25, 2020, Anthony’s counsel mailed a notice of representation, signed by Anthony and his counsel, to Emily. That notice stated that Anthony’s counsel was “ ‘attorney of record’ and available for service of documents” regarding the issues within the scope of his representation of Anthony.

On September 28, 2020, the trial court granted the temporary DVRO.

On or before October 14, 2020, Emily requested a permanent DVRO. On October 14, 2020, Emily served a copy of the request for DVRO and supporting documents—specifically, forms DV-100, DV-109, and DV-110—on Anthony’s counsel. On the same date, Anthony’s counsel acknowledged receipt of the documents on Anthony’s behalf.

On October 20, 2020, both parties appeared at a hearing which appears to have been, at least in part, on Emily’s request for permanent DVRO.[2] Anthony was represented by counsel at that hearing and did not object to service of the request for DVRO.

On November 18, 2020, the trial court “dropped” Emily’s request for DVRO, noting that she failed to appear at the hearing scheduled for that date and “fail[ed] to prosecute.”

On February 8, 2021, the trial court held a “court trial on objection to request for [DVRO]” and child custody issues.[3] Anthony was present with counsel. No objection was made regarding service of process of the request for DVRO. At the court trial, Emily testified, and two witnesses testified on Anthony’s behalf. The court found that Emily’s application for DVRO was supported by sufficient evidence and granted the DVRO for a period of three years.

On March 30, 2021, Anthony filed a request for order to end the DVRO. The request stated that Anthony “was never served [with] the original temporary restraining order and in the … hearing for the restraining order, [his] counsel failed to provide adequate representation.” Specifically, Anthony declared that his previous counsel failed to object to the service of the temporary restraining order.

On April 19, 2021, the court held a hearing on Anthony’s request to end the DVRO. After the hearing, the trial court found that Anthony had appeared with counsel at a hearing on October 20, 2020, and did not object to service of process. It therefore concluded that Anthony’s objection was untimely. The court then continued the matter so the judge who heard Emily’s original request for a DVRO could rule on Anthony’s requested termination of the order.

On May 11, 2021, the trial court that heard Emily’s request for a DVRO held a hearing on Anthony’s request for termination of the order. The court concluded Anthony had been properly served with notice of the request for DVRO. The trial court denied Anthony’s request to terminate the DVRO.

On May 18, 2021, Anthony filed a notice of appeal.

DISCUSSION[4]

As a threshold matter, appealed judgments and orders are presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Anthony must present an adequate record demonstrating purported error by the trial court. (Cal. Rules of Court, rule 8.204(a)(1)(C).) This court must hold a self‑represented litigant to the same procedural rules as an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

Service of Process and Personal Jurisdiction

Anthony contends that he was never properly served with the request for temporary DVRO and the trial court therefore lacked personal jurisdiction over him. However, Anthony acknowledges that he “appeared to each hearing on the advice of his attorney.” Proceedings in the DVRO matter began on September 24, 2020. Anthony appeared with counsel at a hearing on October 20, 2020, on this matter. The record does not indicate that any objection to service of process was voiced at that time. Indeed, the record contains no indication that Anthony objected to service until he filed his March 30, 2021 request to terminate the DVRO.[5]

A trial court lacks jurisdiction in a fundamental sense when it lacks personal jurisdiction over a party. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) As such, any ensuing judgment is void and “ ‘vulnerable to direct or collateral attack at any time.’ ” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) “ ‘A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.’ ” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145; accord Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 138–139; In re R.L. (2016) 4 Cal.App.5th 125, 148; see Code Civ. Proc, § 410.50, subd. (a) [“A general appearance by a party is equivalent to personal service of summons on such party.”].) A general appearance occurs when an individual “ ‘takes part in the action and “in some manner recognizes the authority of the court to proceed.” ’ ” (In re R.L., supra, 4 Cal.App.5th at p. 148.)

Here, Anthony made an appearance with counsel at an October 20, 2020 hearing regarding the DVRO. He also made an appearance at the February 8, 2021 hearing on the permanent DVRO at which he called two witnesses to testify on his behalf and did not object to service of process or the court’s jurisdiction over the case. Anthony therefore waived any challenge to improper service of the request for DVRO.

Due Process Claim

Anthony also broadly claims that the lower court proceedings resulted in a violation of the due process clause of the Fourteenth Amendment of the United States Constitution. However, he fails to identify any specific legal error in the trial court’s rulings or present any legal argument supported with citation to the record or pertinent authority.

“ ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel [or the litigant if, as here, the litigant chooses to represent himself]. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) An appellant’s failure to articulate intelligible legal arguments in the opening brief may be deemed an abandonment of the appeal justifying dismissal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Likewise, a failure to present arguments with adequate and comprehensible references to the record on appeal and citation to legal authority can result in forfeiture of any contention that could have been raised on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.)

As an initial matter, it is not clear to us whether Anthony’s scattered references to violations of “Due Process” are intended to be separate claims from the service of process and personal jurisdiction claims. While we are sympathetic to the fact that Anthony is not represented by counsel, his status as a self-represented litigant does not exempt him from the rules of appellate procedure or relieve his obligation to present intelligible argument supported by the record and legal authority. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246–1247.) Assuming Anthony intended to allege a separate due process claim, it is not supported by sufficient argument, legal authority, and citation to the record to avoid forfeiture. To the extent Anthony intended a separate due process claim, it is forfeited.

DISPOSITION

The order is affirmed. In the interest of justice, all parties shall bear their own costs on appeal.

* Before Hill, P. J., Levy, J. and Meehan, J.

[1] Anthony also makes scattered references to due process rights. We construe those references as a separate argument and conclude that they lack sufficient argument, authority, and citation to the record to avoid forfeiture.

[2] The record certified on appeal is not a complete record of the proceedings. We have attempted to recite as complete of a procedural summary as possible. To that end, we note that the record contains a proof of service that Anthony’s counsel had served some request for order and temporary emergency orders on respondent, noticed for an October 20, 2020 hearing. However, the record also contains an April 19, 2021 order from the trial court finding that Anthony’s objection to Emily’s request for restraining order was overruled because Anthony appeared at the October 20, 2020 hearing. We infer from the trial court’s order that Emily’s request for restraining order was heard, at least in part, on October 20, 2020.

[3] The record does not contain any documents dated between November 19, 2020, and February 7, 2021. The record does not reflect any filings made in anticipation of the February 8, 2021 hearing or reflect the process that led to that hearing.

[4] No reporter’s transcript was certified and Anthony’s claim is purely legal. We therefore omit any summary of the facts.

[5] Anthony now contends that he objected to service of the request for DVRO at the February 8, 2021 hearing. However, his declaration in support of his March 30, 2021 request to modify the DVRO belies that contention. In his declaration, dated March 28, 2021, Anthony stated that his “[p]revious counsel … failed to raise” the issue of service of the request for DVRO.