Baxter v. Hemphill CA3

Filed 4/28/25 Baxter v. Hemphill CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

GAIL BAXTER, C100977

Plaintiff and Respondent, (Super. Ct. No. 23FL-000622)

v.

CLARENCE HEMPHILL,

Defendant and Appellant.

Clarence Hemphill appeals from an order awarding him $1,250 in attorney fees, rather than the full $6,175 he requested. Hemphill fails to overcome the presumption the order is correct, and we thus affirm. BACKGROUND We have very little information about the underlying action because the record on appeal is sparse. Much of the information we have about the underlying case comes solely from Hemphill’s opening brief rather than from the record on appeal. Although the

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opening brief references a motion to augment the record, no such motion was filed.1 “It is axiomatic that the unsworn statements of counsel [made in a brief] are not evidence.” (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11; see also Acqua Vista Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1158, fn. 43 [statements made by counsel “clearly do not constitute evidence”].) From the record we do have, it appears that Gail Baxter filed a request for an elder abuse restraining order against Hemphill on October 5, 2023; the request is not part of the record. (We note such requests are governed by Welf. & Inst. Code, § 15657.03, which is part of the Elder Abuse and Dependent Adult Civil Protection Act). The court issued a temporary restraining order and scheduled a hearing for October 23, and Hemphill filed a response prior to the hearing; the temporary restraining order and the response were also not included by either party in our record. A hearing was held on October 23 and the matter was continued to November 6.2

1 While Hemphill initially attempted to file his opening brief and a motion to augment the record on July 29, 2024, both were subsequently rejected by the court. Hemphill then attempted to resubmit only his opening brief on November 19, 2024, and November 26, 2024, and again, both times they were rejected. Hemphill was finally successfully in filing his opening brief on December 17, 2024, but did not include a motion to augment and never presented such motion for filing after July 29, 2024. Thus, any materials that were to be included in the motion to augment are not part of the appellate record. 2 According to the Hemphill’s opening brief, the court noted at the October 23 hearing that the current request for an elder abuse restraining order appeared similar to a prior request Baxter had filed, and it cautioned her she could be subject to attorney fees if she did not prevail. Baxter stated Hemphill had done new things since the prior request. Hemphill requested a continuance to retain counsel, and the hearing was continued to November 6. Hemphill also spends several pages in his opening brief describing Baxter’s prior request. Again, statements made by counsel in a brief without support in the record provided to us are not evidence and are not properly considered by us. (In re Zeth S., supra, 31 Cal.4th at p. 414, fn. 11.)